United States v. Donovan
Opinion of the Court
delivered the opinion of the Court.
This case presents issues concerning the construction of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U. S. C. §§ 2510-2520. Specifically, we must decide whether 18 U. S. C. §2518 (l)(b)(iv), which requires the Government to include in its wiretap applications “the identity of the person, if known, committing the offense and whose communications are to be intercepted,” is satisfied when the Government identifies only the “principal targets” of the intercept. Second, we must decide whether the Government has a statutory responsibility to inform the issuing judge of the identities of persons whose conversations were overheard in the course of the interception, thus enabling him to decide whether they should be served with notice of the interception pursuant to 18 U. S. C. §2518(8)(d). And finally, we must determine whether failure to comply fully with these statutory provisions requires suppression of evidence under 18 U. S. C. §2518 (10)(a).
I
On November 28, 1972, a special agent of the Federal Bureau of Investigation applied to the United States District Court for the Northern District of Ohio for an order authorizing a wiretap interception in accordance with Title III.
On February 21, 1973, the Government submitted to the District Court a proposed order giving notice of the interceptions to 37 persons, a group which the Government apparently thought included all individuals who could be identified as having discussed gambling over the monitored telephones.
The Court of Appeals for the Sixth Circuit affirmed. 513 F. 2d 337 (1975).
We granted certiorari to resolve these issues, which concern the construction of a major federal statute, 424 U. S. 907, and now reverse.
II
The United States contends that § 2518 (1) (b) (iv) requires that a wiretap application identify only the principal target of the interception, and that § 2518 (8) (d) does not require the Government to provide the issuing judge with a list of all identifiable persons who were overheard in the
A
We turn first to the identification requirements of § 2518 (l)(b)(iv). That provision requires a wiretap application to specify “the identity of the person, if known, committing the offense and whose communications are to be intercepted.” In construing that language, this Court already has ruled that the Government is not required to identify an individual in the application unless it has probable cause to believe (i) that the individual is engaged in the criminal activity under investigation and (ii) that the individual’s conversations will be intercepted over the target telephone. United States v. Kahn, 415 U. S. 143 (1974). The question at issue here is whether the Government is required to name all such individuals.
Whatever the merits of such a statutory scheme, we find little support for it in the language and structure of Title III or in the legislative history. The statutory language itself refers only to “the person, if known, committing the
S. 917 combined the major provisions of S. 675 and S. 2050 and eventually was enacted. While it was pending before the Senate Judiciary Committee, this Court decided Katz v. United States, 389 U. S. 347 (1967). S. 917 was then redrafted to conform to Katz as well as Berger, and the identification provision was added at that time. The Senate Report states that the requirements set forth in the vari
B
The other statutory provision at issue in this case is 18 U. S. C. § 2518 (8) (d), which provides that the judge shall cause to be served on the persons named in the order or application an inventory, which must give notice of the entry of the order or application, state the disposition of
Our reading of the legislative history of the discretionary notice provision in light of the purposes of Title III leads us to reject the Government’s interpretation.. As reported from the Judiciary Committee, § 2518 (8) (d) contained only a provision mandating notice to the persons named in the application or the order; the discretionary notice provision was added by amendment on the floor of the Senate. In introducing that amendment, Senator Hart explained its purpose:
“The amendment would give the judge who issued the order discretion to require notice to be served on other parties to intercepted communications, even though such*430 parties are not specifically named in the court order. The Berger and Katz decisions established that notice of surveillance is a constitutional requirement of any surveillance statute. It may be that the required notice must be served on all parties to intercepted communications. Since legitimate interests of privacy may make such notice to all parties undesirable, the amendment leaves the final determination to the judge.” 114 Cong. Rec. 14485-14486 (1968).20
In deciding whether legitimate privacy interests justify withholding inventory notice from parties to intercepted conversations, a judge is likely to require information and assistance beyond that contained in the application papers and the recordings of intercepted conversations made available by law enforcement authorities. No purpose is served by holding that those authorities have no routine duty to supply the judge with relevant information. The Court of Appeals for the Ninth Circuit recently confronted this problem of dual responsibility, and we adopt the balanced construction that court placed on § 2518 (8) (d):
“To discharge this obligation the judicial officer must have, at a minimum, knowledge of the particular categories into which fall all the individuals whose conver*431 sations have been intercepted. Thus, while precise identification of each party to an intercepted communication is not required, a description of the general class, or classes, which they comprise is essential to enable the judge to determine whether additional information is necessary for a proper evaluation of the interests of the various parties. Furthermore, although the judicial officer has the duty to cause the filing of the inventory [notice], it is abundantly clear that the prosecution has greater access to and familiarity with the intercepted communications. Therefore we feel justified in imposing upon the latter the duty to classify all those whose conversations have been intercepted, and to transmit this information to the judge. Should the judge desire more information regarding these classes in order to exercise his [statutory] § 2518 (8) (d) discretion, . . . the government is [also] required to furnish such information as is available to it.” United States v. Chun, 503 F. 2d 533, 540 (1974). (Footnote omitted.)
We agree with the Ninth Circuit that this allocation of responsibility best serves the purposes of Title III.
Currently, the policy of the Justice Department is to provide the issuing judge with the name of every person who has been overheard as to whom there is any reasonable possibility of indictment. Brief for United States 39. Because it fails to assure that the necessary range of infor
Ill
We turn now to the question whether the District Court properly suppressed evidence derived from the wiretaps at issue solely because of the failure of the law enforcement authorities to comply fully with the provisions of §§2518 (1) (b)(iv) and 2518 (8) (d). Section 2515 expressly prohibits the use at trial, and at certain other proceedings, of the contents of any intercepted wire communication or any evidence derived therefrom “if the disclosure of that information would be in violation of this chapter.” The circumstances that trigger suppression under § 2515 are in turn enumerated in § 2518 (10) (a) :
“(i) the communication was unlawfully intercepted;
“(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
“(iii) the interception was not made in conformity with the order of authorization or approval.”
There is no basis on the facts of this case to suggest that the authorization orders are facially insufficient, or that the interception was not conducted in conformity with the orders. Thus, only § 2518 (10) (a) (i) is relevant: Were the communications “unlawfully intercepted” given the violations of §§ 2518 (1) (b) (iv) and 2518 (8) (d) ?
Giordano concerned the provision in Title III requiring that an application for an intercept order be approved by the Attorney General or an Assistant Attorney General specially designated by the Attorney General. Concluding that Congress intended to condition the use of wiretap procedures on the judgment of senior officials in the Department of Justice, the Court required suppression for failure to comply with the approval provision. Chavez concerned the statutory requirement that the application for an intercept order specify the identity of the official authorizing the application. The problem in Chavez was one of misidentification; although the application had in fact been authorized by the Attorney General, the application erroneously identified an Assistant Attorney General as the official authorizing the application. The Court concluded that mere misidentification of the official authorizing the application did not make the application unlawful within the meaning of § 2518 (10) (a) (i) since that identification requirement did not play a “substantive role” in the regulatory system. 416 U. S., at 578.
In the instant case, the Court of Appeals concluded that both the identification requirement of § 2518 (l)(b)(iv) and the notice requirement of § 2518 (8) (d) played a “central role” in the statutory framework, and for that reason affirmed the District Court's order suppressing relevant evidence. Although both statutory requirements are undoubtedly important, we do not think that the failure to comply fully with those provisions renders unlawful an intercept order that in all other respects satisfies the statutory requirements.
.As to § 2518 (l)(b)(iv), the issue is whether the identification in an intercept application of all those likely to be overheard in incriminating conversations plays a “substantive role” with respect to judicial authorization of intercept orders and consequently imposes a limitation on the use of intercept procedures. The statute provides that the issuing judge may approve an intercept application if he determines that normal investigative techniques have failed or are unlikely to succeed and there is probable cause to believe that: (i) an individual is engaged in criminal activity; (ii) particular communications concerning the offense will be .obtained through interception; and (iii) the target facilities are being used in connection with the specified criminal activity. §§ 2518 (3)(a-d). That determination is based on the “full and complete statement” of relevant facts supplied by law enforcement authorities. If, after evaluating the statutorily enumerated factors in light of the information contained in the application, the judge concludes that the wiretap order should issue, the failure to identify additional persons who are likely to be overheard engaging in incriminating conversations could hardly invalidate an otherwise lawful judicial authorization. The intercept order may issue only if the issuing judge determines that the statutory factors are present, and the failure to name additional targets in no way detracts from the sufficiency of those factors.
This case is unlike Giordano, where failure to satisfy the statutory requirement of prior approval by specified Justice Department officials bypassed a congressionally imposed limitation on the use of the intercept procedure. The Court there noted that it was reasonable to believe that requiring prior approval from senior officials in the Justice Department “would inevitably foreclose resort to wiretapping in various situations where investigative personnel would otherwise seek intercept authority from the court
We reach the same conclusion with respect to the Government's duty to inform the judge of all identifiable persons whose conversations were intercepted. As noted earlier, the version of Title III that emerged from the Senate Judiciary Committee provided only for mandatory notice to the “persons named in the order or the application.'' The Senate Report detailed the purpose of that provision:
“[T]he intent of the provision is that the principle of postuse notice will be retained. This provision alone should insure the community that the techniques are reasonably employed. Through its operation all authorized interceptions must eventually become known at least to the subject. He can then seek appropriate civil redress, for example, under section 2520 ... if he feels that his privacy has been unlawfully invaded.” S. Rep. No. 1097, 90th Cong., 2d Sess., 105 (1968).
The floor discussion concerning the amendment adding the provision for discretionary notice merely indicates an intent to provide notice to such additional persons as may be constitutionally required.
Nothing in the structure of the Act or this legislative history suggests that incriminating conversations are “unlawfully intercepted” whenever parties to those conversations do not receive discretionary inventory notice as a result of the Government’s failure to inform the District Court of their identities. At the time inventory notice was served on the other identifiable persons, the intercept had been completed and the conversations had been “seized” under a valid intercept order. The fact that discretionary notice reached
The legislative history indicates that postintercept notice was designed instead to assure the community that the wiretap technique is reasonably employed. But even recognizing that Congress placed considerable emphasis on that aspect of the overall statutory scheme, we do not think that postintercept notice was intended to serve as an independent restraint on resort to the wiretap procedure.
IV
Although the Government was required to identify respondents Donovan, Robbins, and Buzzacco in the December 26 application for an extension of the initial intercept, failure to do so in the circumstances here presented did not warrant suppression under § 2518 (10) (a) (i). Nor was suppression justified with respect to respondents Merlo and Lauer simply because the Government inadvertently omitted their names from the comprehensive list of all identifiable persons whose conversations had been overheard. We hold that this is the correct result under the provisions of Title III, but we re
The judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.
It is so ordered.
The wiretap application procedure is set forth at 18 U. S. C. § 2518 (1), which provides:
“(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state
“(a) the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application;
“ (b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted;
“(c) a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be-too dangerous;
“(d) a statement of the period of time for which the interception is required to be maintained. If the nature of the investigation is such that the authorization for interception should not automatically terminate when the described type of communication has been first obtained, a particular description of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;
“(e) a full and complete statement of the facts concerning all previous applications known to the individual authorizing and making the application, made to any judge for authorization to intercept, or for approval of interceptions of, wire or oral communications involving any of the same persons, facilities or places specified in the application, and the action taken by the judge on each such application; and
“(f) where the application is for the extension of an order, a statement setting forth the results thus far obtained from the interception, or a reasonable explanation of the failure to obtain such results.”
The issuing judge is free to require the applicant to furnish additional information. 18 U. S. C. § 2518 (2).
The affidavit set forth extensive information indicating that the named individuals were conducting a gambling operation. This information was derived from physical surveillance by agents of the FBI, an examination of telephone company toll records, and the personal observations of six informants, whose past reliability also was detailed in the affidavit.
The District Court’s order was issued pursuant to 18 U. S. C. §§ 2518 (3), (4), which provide in pertinent part:
“(3) Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire or oral communications within the territorial jurisdiction of the court in which the judge is sitting, if the judge determines on the basis of the facts submitted by the applicant that—
“(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter;
"(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;
"(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;
“(d) there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.
“(a) the identity of the person, if known, whose communications are to be intercepted;
“(b) the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;
“(c) a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates;
“(d) the identity of the agency authorized to intercept the communications, and of the person authorizing the application; and
“(e) the period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.”
In addition to the December 26 application requesting an extension of the initial intercept order, the Government also filed on that date a separate application seeking authorization to monitor a third telephone discovered at the same North Olmstead address. Both applications were accompanied by another affidavit setting forth the results of the initial monitoring, the manner in which the third telephone was discovered, the facts, indicating that the newly discovered telephone was being used, to conduct a gambling business, and reasons why continued interception was necessary. A copy of the affidavit filed on November 28 was also attached to the December 26 applications. For the sake of clarity, the two applications filed on December 26 will be treated as a single application.
The United States conceded in the Court of Appeals that respondents Donovan and Robbins were “known” within the meaning of the statute at the time of the December 26 application, but challenged as
An inventory notice must be served within a designated period of time upon “the persons named in the order or the application.” 18 U. S. C. § 2518 (8) (d). The inventory must give notice of the entry of the intercept order or application, state the disposition of the application, and indicate whether communications were or were not intercepted. Ibid. Upon the filing of a motion, the judge has discretion to make available the intercepted communications, the applications, and the orders. Ibid.
Title III also authorizes the District Court to cause an inventory notice to be served on “other parties to intercepted communications” if the judge determines that such notice is in the interest of justice. Ibid. Those other parties may also be given access to the intercepted communications, the applications, and the orders. Ibid.
Although respondents Merlo and Lauer were not served with inventory notice pursuant to §2518 (8) (d), the intercept orders, applications,
The Government filed its appeal from the District Court’s order suppressing evidence under 18 U. S. C. § 3731, and there has been no trial on the charges with respect to the respondents.
See n. 6, supra.
Title 18 U. S. C. § 2518 (10) (a) provides in pertinent part:
“(10) (a) Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the. contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that—
“(i) the communication was unlawfully intercepted;
“(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or
“(iii) the interception was not made in conformity with the order of authorization or approval.”
Every Court of Appeals that has considered the issue has concluded that an individual whose conversations probably will be intercepted by a wiretap must be identified in the wiretap application if the law enforcement authorities have probable cause to believe the individual is committing the offense for which the wiretap is sought. United States v. Chiarizio, 525 F. 2d 289, 292 (CA2 1975); United States v. Bernstein, 509 F. 2d 996 (CA4 1975), cert. pending, No. 74-1486; United States v. Doolittle, 507 F. 2d 1368 (CA5), aff’d en banc, 518 F. 2d 500 (1975), cert. pending, Nos. 75-500, 75-509, 75-513; United States v. Civella, 533 F. 2d 1395 (CA8 1976), cert. pending, Nos. 75-1813, 76-169; United States v. Russo, 527 F. 2d 1051, 1056 (CA10 1975), cert. denied, 426 U. S. 906 (1976). See also United States v. Moore, 168 U. S. App. D. C. 227, 235-236, 513 F. 2d 485, 493-494 (1975) (interpreting D. C. Code § 23-547 (a) (2) (D), which is almost identical to the provision at issue here).
A number of these courts have concluded, and respondents Donovan, Robbins, and Buzzacco argue, that our decision in United States v. Kahn, 415 U. S. 143 (1974), resolved this identification issue. See United States v. Chiarizio, supra; United States v. Moore, supra. Although there is language in Kahn suggesting that wiretap applications must identify all such individuals, the identification question presented here was not before us in Kahn. The question in that case was whether a wiretap application had to identify a known user of the target telephone whose com
The United States does not suggest that regardless of the factual circumstances a wiretap application must identify only a single individual. To the contrary, it concedes that if two or more persons are using the target telephone “equally” to commit the offense, and thus are “equally” targets of the investigation, “all must be named.” Brief for United States 18 n. 13.
Counsel for the United States explained this position succinctly at oral argument: “The critical distinction ... is [one] between the users of the telephone that is being monitored on the one hand, and all other persons throughout the world who may converse from unmonitored phones on the other hand.” Tr. of Oral Arg. 13.
Indeed, the contrary conclusion is suggested by the fact that identification of an individual in an application for an intercept order triggers other statutory provisions. First, § 2518 (1) (e) requires an intercept application to disclose all previous applications “involving any of the same persons . . . specified in the application.” To the extent that Congress thought it necessary to provide the issuing judge with such information, there is no indication of congressional intent to require provision of such information only if a suspect operated from one end of a telephone line. Second, § 2518 (8) (d) mandates that an inventory notice be served upon “the persons named in the order or the application.” As with §2518 (1) (e), the congressional purpose would
At the time of the enactment of Title III, Congress did not have before it the view we expressed on this issue in United States v. Kahn, 415 U. S., at 155 n. 15. The Fourth Amendment requires specification of “the place to be searched, and the persons or things to be seized.” In the wiretap context, those requirements are satisfied by identification of the telephone line to be tapped and the particular conversations to be seized. It is not a constitutional requirement that all those likely to be overheard engaging in incriminating conversations be named. Specification of this sort “identifies] the person whose constitutionally protected area is to be invaded rather than ‘particularly describing’ the communications, conversations, or discussions to be seized.” Berger v. New York, 388 U. S., at 59.
That Congress may have so understood the constitutional require
At least one Senator read the identification requirement in S. 917 to parallel the identification requirement contained in the statute at issue in Berger v. New York: “Specificity is required as to the person or persons whose communications will be intercepted.” 114 Cong. Rec. 14763 (1968) (remarles of Sen. Percy).
The inventory notice must be served within a reasonable time but not later than 90 days after the date the application for an intercept order was filed. On an ex parte showing of good cause, service of the inventory may be postponed.
In addition to these provisions for mandatory and discretionary inventory notice, the Government is required to supply the issuing judge with recordings of the intercepted conversations, which are to be sealed according to his directions. 18 U. S. C. § 2518 (8) (a). These notice and return provisions satisfy constitutional requirements. See Katz v. United States, 389 U. S. 347, 355-356, and n. 16 (1967); Berger v. New York, supra, at 60.
It is worth noting that shortly before Senator Hart proposed this amendment to S. 917, Senator Long had read to the Senate portions of a report prepared by the Association of the Bar of the City of New York on federal wiretap legislation. That report commented that parties to intercepted conversations other than those named in the application or order probably should be served with inventory notice, but it also recognized that under some circumstances the provision of such notice could be harmful and gave the following example:
“A, a businessman, talks with his customers, and the latter are served with papers showing that A is being bugged .... [T]he damage to confidence in A and to A's reputation in general may damage A unjustly. In this case it would seem that the customers should not be served with the inventory..” 114 Cong. Rec. 14476 (1968).
At oral argument, counsel for the United States recognized the merit of the approach specified in United States v. Chun:
“Perhaps the approach of the Court of Appeals for the Ninth Circuit, which suggested that rather than submitting specific names we should submit categories of persons who had been overheard, is a better policy, would be more helpful to the district court in exercising its discretion, and we would have no objection to following any reasonable policy that the district courts determine would be useful to them in this area.” Tr. of Oral Arg. 6-7.
The availability of the suppression remedy for these statutory,
The concurring opinion of The Cheep Justice contends that respondents Donovan, Robbins, and Buzzacco lack standing even to seek suppression. Post, at 440-441. This contention rests on the ground that Congress rejected an amendment proposed by Senators Long and Hart that would have added a fourth ground justifying suppression — namely, that the person against whom the Government sought to introduce the evidence was not named in the court order. Since these three respondents would have been entitled to suppression under the rejected amendment, the concurring opinion concludes they .cannot seek suppr&sion here.
This view fails to recognize that § 2518 (10) (a) establishing the suppression remedy provides alternative grounds on which one can seek suppression of evidence derived from a wiretap. Thus, the mere fact that Congress chose not to add a fourth alternative could not mean that it intended to prevent persons who would have been covered by that alternative from seeking suppression on one of the other grounds. As the Justice Department commented, in the same statement cited in the concurring opinion: “The [Long and Hart] amendment is designed to limit the scope of electronic surveillance, but it accomplishes this purpose in an artificial manner. So long as a court order is validly obtained, evidence obtained under the order should be admissible against any person not merely against the person named in the order.” 114 Cong. Rec. 14718 (1968) (emphasis added). Here, respondents Donovan, Robbins, and Buzzacco challenge the validity of the court order, and nothing in either Congress’ rejection of the proposed amendment or the Justice Department’s comment thereon suggests that § 2518 (10) (a) (i) is unavailable to persons who might have had a remedy under a provision not enacted by Congress.
There is no suggestion in this case that the Government agents knowingly failed to identify respondents Donovan, Robbins, and Buzzacco for the purpose of keeping relevant information from the District Court that might have prompted the court to conclude that probable cause was lacking. If such a showing had been made, we would have a different case. Nor is there any suggestion that as a result of the failure to name these three respondents they were denied the mandatory inventory notice supplied to persons named in the application. 18 U. S. C. § 2518 (8) (d). Respondents Donovan, Robbins, and Buzzacco were among the 37 persons served with the initial inventory.
No one suggests that the failure to identify in a wiretap application individuals who are “unknown” within the meaning of the statute, see United States v. Kahn, 415 U. S. 143 (1974), requires suppression of intercepted conversations to which those individuals were parties. Though recognizing that the failure to identify such an “unknown” individual does not make unlawful an otherwise valid intercept order, respondents Donovan, Robbins, and Buzzacco suggest that the opposite is true with respect to the failure to identify in a wiretap application individuals who are “known” within the meaning of the statute. Counsel for these respondents suggested at oral argument that this difference in result is justified by analogy to warrantless searches or arrests. Tr. of Oral Arg. 40. Although law enforcement officials can often take action without a warrant when they have
Even if we assume that Congress thought that a broad identification requirement was constitutionally mandated, it does not follow that Congress imposed statutory suppression under §§ 2515 and 2518 (10) (a) (i) as a sanction for noncompliance. In limiting use of the intercept procedure to “the most precise and discriminate circumstances,” S. Rep. No. 1097, 90th Cong., 2d Sess., 102 (1968), Congress required law enforcement authorities to convince a district court that probable cause existed to believe that a specific person was committing a specific offense using a specific telephone. This requirement was satisfied here when the application set forth sufficient information to indicate that the primary targets were conducting a gambling business over four particular telephones. Nothing
Counsel for respondents Merlo and Lauer conceded at oral argument that the failure to name those respondents in the proposed inventory order was not intentional, Tr. of Oral Arg. 32, and we axe therefore not called upon to decide whether suppression would be an available remedy if the Government knowingly sought to prevent the District Court from serving inventory notice on particular parties. Nor does this case present an opportunity to comment upon the suggestion, recognized by the United States, Brief 49 n. 40, that suppression might be required if the agents knew before the interception that no inventory would be served.
Moreover, respondents Merlo and Lauer were not prejudiced by their failure to receive postintercept notice under either of the District Court's inventory orders. As noted earlier, the Government made available to all defendants the intercept orders, applications, and related papers. See n. 7, supra. And in response to pretrial discovery motions, the Government produced transcripts of the intercepted conversations.
Concurring in Part
concurring in part and concurring in the judgment.
I concur in the Court’s judgment and in all except Part II-A of the Court’s opinion. I cannot agree, however, with the Court’s construction of the identification provisions of § 2518 (1) (b) (iv), since I believe the application for surveillance in this case complied with statutory requirements. However, the precise reach of the identification requirement is irrelevant, because respondents are foreclosed from seeking suppression in any event.
Respondents Donovan, Robbins, and Buzzacco contend that, since their names were not contained in the wiretap application, suppression is required under the express exclusionary provision of Title III, § 2518 (10) (a). Their contention flies in the teeth of legislative history directly to the contrary. In the evolution of Title III, Congress considered and rejected a proposed amendment which would have expressly conferred the exclusionary benefit that respondents now seek. Specifically, Senators Long and Hart proposed the addition of a fourth subdivision to the suppression provision contained in § 2518 (10) (a). 114 Cong. Rec. 14718 (1968). Had that proposal been adopted, it would have allowed suppression of intercepted conversations at the behest of any aggrieved person on the ground that he or she was not named in
“The amendment would permit intercepted communications to be used in evidence only against the persons named in the court order, not against other persons” Ibid. (Emphasis supplied.)
Consistent with the Justice Department’s recommendation, the Senate rejected the result which respondents now seek.
Even if the legislative history were silent with respect to suppression, however, I would nonetheless take issue with the Court’s analysis of the identification requirement. In my view, Congress required no more than that a wiretap application identify by name the primary user of the monitored facility.
Congress drafted this statute with exacting precision. As its principal sponsor, Senator McClellan, put it:
“[A] bill as controversial as this . . . requires close attention to the dotting of every T and the crossing of every't’ . . . .” Id., at 14751.
Under these circumstances, the exact words of the statute provide the surest guide to determining Congress’ intent, and we would do well to confine ourselves to that area. The statutory provision before us requires the wiretap application to specify the “identity of the person, if known, committing the offense and whose communications are to be intercepted.” 18 U. S. C. § 2518 (1) (b) (iv). (Emphasis supplied.) As the Court correctly indicates, the identification requirement
The Court emphasizes, however, that the statute expressly recognizes that more than one person may be named in a wiretap application. Ante, at 425. That is indeed true. See §§ 2518 (1) (e), (8) (d). But I would think this is all the more reason for focusing upon the precise language in the provision establishing explicit requirements for an application. Since Congress expressly contemplated that applications might contain more than one name, its failure in §2518 (l)(b)(iv) to require the naming of “any person” or “the persons” whose communications are to be intercepted must mean that an open-ended identification requirement was never intended. In other words, Congress reasonably foresaw that, for a variety of reasons, actual wiretap applications might contain the names of more than one person. But Congress did not translate its recognition of what an appli
Assuming that plain words of a statute might have to bow, in some circumstances, to compelling legislative history to the contrary, nothing of that kind is found here. As the Court observes, the earlier bills introduced in the Senate contained no identification provision at all. After Berger and Katz v. United States, 389 U. S. 347 (1967), were decided, the requirement was added in what was plainly an abundance of caution. For this Court in Berger flatly discounted any value in New York’s broad identification requirement.
“It is true that the statute requires the naming of ‘the person or persons whose communications, conversations or discussions are to be overheard or recorded . . . .’ But this does no more than identify the person whose constitutionally protected area is to be invaded rather than ‘particularly describing’ the communications, conversations, or discussions to be seized.” 388 U. S., at 59. (Emphasis supplied.)
As shown by its rejection of the proposed suppression provision — which obviously would have had the practical effect of increasing the number of persons identified in wiretap applications — Congress correctly perceived little value in multiplying indefinitely the number of names to be set forth in wiretap applications and orders. This is particularly true since no Fourth Amendment values are served by a sweeping identification requirement. The Court has made clear:
“ ‘The Fourth Amendment requires a warrant to describe only “the place to be searched, and the persons or things to be seized,” not the persons from whom things will be seized.’ ” United States v. Kahn, 415 U. S. 143, 155 n. 15 (1974). (Emphasis supplied.)
Hence, the statute, as it presently stands, comports entirely with Fourth Amendment requirements, and thus achieves the
In short, the Court has redrafted a statute passed by Congress to make it identical to a statutory provision found valueless by this Court a few years ago in the Berger case. This undertaking, unfortunately, is not entirely without consequence, notwithstanding the Court’s refusal to approve suppression of the evidence here. Among other things, federal officers are potentially subject to a civil damages action, with compensatory damages of not less than $1,000, plus punitive damages, plus reasonable attorneys’ fees.
The proposed addition provided:
“(iv) That he was not the subject of such application, authorization, or extension thereof.”
It is true that the proposal did not speak directly to instances, such as here, where persons arguably should have been named in the application and order, but were not. But respondents, as unnamed persons, would plainly have had a suppression remedy if the amendment had passed.
18 U. S. C. § 2520. Since a court order will necessarily reflect the officers’ “violation,” it is not entirely certain that reliance upon a court order will provide a sufficient defense to a civil damages action.
Dissenting Opinion
dissenting in part.
The Court today holds that an application for a warrant to authorize a wiretap under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U. S. C. §§ 2510-2520, must name all individuals who the Government has probable cause to believe are committing the offense being investigated and will be overheard. See 18 U. S. C. § 2518 (1) (b) (iv). It also holds that the Government must provide sufficient information to the issuing judge to allow him to exercise the discretion provided by 18 U. S. C. § 2518 (8) (d). I fully agree with both of these holdings. The Court concludes, however, that if the Government violates these statutory commands, it is nevertheless free to use the intercepted communications as evidence in a criminal proceeding, I cannot agree.
I continue to adhere to the position, expressed for four Members of the Court by Mr. Justice Douglas in his dissent in United States v. Chavez, 416 U. S. 562, 584-585 (1974), that Title III does not authorize “the courts to pick and choose among various statutory provisions, suppressing evidence only when they determine that a provision is 'substantive/ 'central/ or 'directly and substantially’ related to the congressional scheme.” The Court has rejected that argument, however, see United States v. Chavez, supra; United States v. Giordano, 416 U. S. 505 (1974), and nothing is to be gained by renewing it here. But even under the standard set forth
I
Title III requires that an application for a warrant to authorize wiretapping disclose “the identity of the person, if known, committing the offense and whose communications are to be intercepted.” 18 U. S. C. § 2518 (l)(b)(iv). The Court properly rejects the Government’s contention that this provision requires it to name only the “principal target” of an investigation. In doing so, the Court relies both on the plain language and legislative history of the section, which do not support the Government’s position, and on the statutory context. Ante, at 424-428. Part of that context is the obvious assumption of other portions of Title III that wiretap applications will name more than one target. See 18 U. S. C. §§2518 (l)(e), (8)(d), Another part is
“the fact that identification of an individual in an application for an intercept order triggers other statutory provisions. First, § 2518 (1) (e) requires an intercept application to disclose all previous applications ‘involving any of the same persons . . . specified in the application.’ . . . Second, § 2518 (8) (d) mandates that an inventory notice be served upon ‘the persons named in the order or the application.’ ” Ante, at 425 n. 14 (emphasis added).
Yet in determining whether the identification requirement “directly and substantially implement [s] the congressional intention to limit the use of intercept procedures,” United States v. Giordano, supra, at 527, or plays a “substantive role” in the “regulatory system” established by Congress, United States v. Chavez, supra; at 578, the Court ignores the requirement’s function as a statutory “trigger.” In its analysis, the Court focuses solely on whether a list of ad
The Court’s reasoning is doubly flawed. First, a judge is not required to issue a warrant if the prerequisites of § 2518 (3) are satisfied; he may do so. Once he determines that the § 2518 (3) requirements have been met, he still must decide whether the invasion of privacy by the proposed wiretap is justified under the circumstances.'
It is true, as the Court notes, ante, at 436 n. 23,
Thus, I conclude that the naming requirement recognized by the majority does play a “substantive role” in the system designed by Congress to limit the use of electronic surveillance. Failure to comply with that requirement, therefore, should lead to suppression on the ground that “the communication was unlawfully intercepted.” 18 U. S. C. § 2518 (10) (a) (i).
II
The Court’s discussion of the consequences of the Government’s failure to comply with the notice provision of § 2518 (8) (d) parallels its discussion of the naming requirement, and is similarly flawed. The Court does recognize that the notice provision was designed to assure the community that the wiretap technique is reasonably employed and that “Congress placed considerable emphasis on that aspect of the overall statutory scheme.” Ante, at 439. But because notice occurs after the intercept is completed, and because notice is not itself “an independent restraint on resort to the wiretap procedure,” the Court concludes that failure to notify does not render an interception “unlawful” under § 2518 (10) (a) (i). Ante, at 439.
Again, the Court takes too narrow a view of the provision at issue, ignoring its place in the system Congress has created to restrain wiretapping. That system involves not only direct
“Injunctive relief, with its attendant discovery proceedings, is not intended to be available .... It is expected that civil suits, if any, will instead grow out of the filing of inventories under section 2518 (8) (d).” S. Rep. No. 1097, 90th Cong., 2d Sess., 107 (1968).
See also id., at 105.
The Court’s conclusion that the notice provision is not central dismantles this carefully designed congressional structure.
Ill
The Court’s opinion implies that if the violations of Title III considered here had been intentional, the result would be different. Ante, at 436 n. 23, 439 n. 26. This must be so, for surely this Court would not tolerate the Government’s intentional disregard of duties imposed on it by Congress. I also assume that if the Government fails to establish procedures which offer reasonable assurance that it will strictly adhere to the statutory requirements, see ante, at 439-440, resulting failures to comply will be recognized as intentional. There is, therefore, reason to hope that the Court’s admonition that the Government should obey the law will have some effect in the future.
But that hope is a poor substitute for certainty that the Government will make every effort to fulfill its responsibilities under Title III. We can obtain that certainty only by according full recognition to the role of the naming and notice
Title 18 U. S. C. § 2518 (3) provides, in pertinent part:
“Upon such application the judge may enter an ex parte order ... if the judge determines on the basis of the facts submitted by the applicant that—
“ (a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter;
“(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;
“(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;
“(d) there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person.”
The information which the applicant is required to provide to the district court by §§ 2518 (1) (d)-(f) would be superfluous if the decision whether to issue a warrant depended only on the findings specified in §2518 (3).
Cf. United States v. Bellosi, 163 U. S. App. D. C. 273, 501 F. 2d 833 (1974).
Thus, this case is unlike United States v. Chaves. There, the Court concluded that the misidentification of the authorizing official as an Assistant Attorney General when the Attorney General had actually authorized the warrant application could not have affected the judge’s decision to issue the warrant. 416 U. S., at 572.
The Court actually states only that there is no suggestion that the failure to name respondents kept from the judge information “that might have prompted the court to conclude that probable cause was lacking.” As I have shown, that formulation understates the District Court’s role.
See Part II, infra.
Concurring in Part
concurring in part and dissenting in part.
For the reasons stated in Parts I and II of Me. Justice Marshall’s opinion, I respectfully dissent from Parts III and IV of the Court’s opinion. I join Parts I and II of the Court’s opinion.
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