United States v. Ojeda Rios
Dissenting Opinion
with whom Justice Brennan and Justice Marshall join, dissenting.
The failure to comply with the sealing requirements of Title III was the unfortunate consequence of a Government lawyer’s good-faith, but incorrect, understanding of the law. Whether such a mistake should constitute a “satisfactory explanation” for the failure, is, as both the District Court and the Court of Appeals recognized, a close question. Both of those courts resolved their doubts in favor of requiring strict’ compliance with a statute that was carefully drawn to protect extremely sensitive privacy interests. I think their resolution of the issue was correct.
*270 “We think that unfortunately the failure to seal the Levittown tapes here resulted from a disregard of the sensitive nature of the activities undertaken. The danger here is, of course, that today’s dereliction becomes tomorrow’s conscious avoidance of the requirements of law. The privacy and other interests affected by the electronic surveillance statutes are sufficiently important, we believe, to hold the Government to a reasonably high standard of at least acquaintance with the requirements of law.” 875 F. 2d 17, 23 (CA2 1989).2
Accordingly, while I agree with the Court’s rejection of the Government’s construction of §2518(8)(a), I would affirm the judgment of the Court of Appeals.
The Court acknowledges that the prosecutor’s understanding of the law was incorrect. Ante, at 266. However, the Court posits that, at the time of this investigation, it was “objectively reasonable” to interpret 18 U. S. C. § 2518(8)(a) to treat wiretap orders issued after an order covering the same suspects or locations expired as extensions of the earlier order. The legal sufficiency of this excuse, which relies on United States v. Principie, 531 F. 2d 1132 (CA2 1976), cert. denied, 430 U. S. 905 (1977), and United States v. Scafidi, 564 F. 2d 633 (CA2 1977), cert. denied, 436 U. S. 903 (1978), is debatable for three reasons.
First, Principie addressed a different provision of Title III, § 2518(8)(d), which requires written notice to suspects within 90 days of “the termination of the period of an order or extensions thereof.” The Principie court treated a wiretap order that was issued four days after the expiration of an order directed at the same suspects at a previous location to be “an extension” within the meaning of this section. While enforcing notice under § 2518(8)(d) is informed by concerns for prematurely exposing an investiga
Second, because a judge of the United States District Court for the District of Puerto Rico issued the surveillance and sealing orders, the District Court below held that the “law of the first circuit controlled where a material difference exists between the sealing requirements in the first and second circuits.” United States v. Gerena, 695 F. Supp. 649, 657-658 (Conn. 1988). The First Circuit has not applied Principie to subsequent orders in Title III notice or sealing cases. It has construed § 2518(8)(a)’s sealing requirement strictly and identified a series of factors to measure the sufficiency of an explanation of delay. United State v. Mora, 821 F. 2d 860 (CA1 1987). Both the District Court and Second Circuit used the Mora factors in sustaining the suppression of the Levittown and Baja Vega tapes. 695 F. Supp., at 657-658; 875 F. 2d 17, 22-23 (CA2 1989).
Finally, the general rule — as stated in the treatise used by the prosecutor in this case — is that “[although Title III delays the sealing and notice deadline when the initial warrant is extended, it does not postpone those deadlines when a new warrant is obtained on a different phone or premises.” C. Fishman, Wiretapping and Eavesdropping § 190 (1978); id., at 282, n. 8 (acknowledging Principie as an exception to notice deadlines in a footnote). Prosecutor Bove did not recall what cases he consulted, but did recall using the Fishman treatise. App. 35, 40, 42-44.
Cf. United States v. Giordano, 416 U. S. 505, 527 (1974) (“Congress intended to require suppression where there is failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device”).
If a “satisfactory explanation” did exist, I would agree that a remand to determine that it was in fact “the actual reason for the delay” would be required. Ante, at 267 (O’Connor, J., concurring).
Opinion of the Court
delivered the opinion of the Court.
This case arises under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III), as amended, 18 U. S. C. §2510 et seq., which regulates the interception of wire, oral, and electronic communications. Except under extraordinary circumstances, see §2518(7), electronic surveillance may be conducted only pursuant to a court order. See §§ 2518(1) — (6). Section 2518(8)(a) requires that “[t]he contents of any wire, oral, or electronic communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device” and that recording “shall be done in such way as will protect the recording from editing or other alterations.” The section further provides that “[i]mmediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing
In this case, a series of court orders authorized electronic surveillance. The tapes later offered in evidence bore seals but the seals on the tapes at issue had not been immediately attached as required by the statute. The issue we address is whether § 2518(8)(a) requires suppression of those tapes.
Respondents are members of a Puerto Rican organization known as Los Macheteros (the “machete wielders”). All have been charged with federal crimes relating to the robbery in 1983 of a Wells Fargo depot in Connecticut, a robbery which netted approximately $7 million. The Government first began investigating respondents in connection with a rocket attack on the United States Courthouse in Hato Rey, Puerto Rico. Effective April 27,1984, the Government obtained an order of electronic surveillance for the residence of Filiberto Ojeda Rios in Levittown, Puerto Rico, and for some public telephones near the residence. During its investigation of the rocket attack, the Government discovered evi
As part of the Wells Fargo robbery investigation, the Government obtained a court order on November 1, 1984, authorizing it to wiretap a residence shared by Juan Segarra Palmer and Luz Berrios Berrios in Vega Baja, Puerto Rico. The District Court extended that authorization order each month for seven months, with the last extension expiring on May 30, 1985. The Government also obtained a court order authorizing it to wiretap two public telephones in Vega Baja, effective January 18, 1985. That order expired on February 17, 1985, and due to difficulties in finishing the affidavit necessary to obtain an extension, the Government did not apply for an extension until March 1, 1985. The District Court issued a new order on that date. The order was thereafter extended twice and finally expired on May 30, 1985. All tapes from the Vega Baja wiretaps were judicially sealed on June 15, 1985.
After respondents were indicted for various offenses relating to the Wells Fargo depot robbery, they moved to suppress all evidence the Government had obtained as a result of electronic surveillance. Following a suppression hearing,
The United States Court of Appeals for the Second Circuit affirmed the suppression of the tapes, 875 F. 2d 17 (1989), rejecting the Government’s explanation for the sealing delays. Because the scope and role of the sealing provision of Title III has generated disagreement in the lower courts, we granted certiorari, 493 U. S. 889 (1989), and now vacate and remand.
The Government first argues that because §2518(8)(a) states that as a prerequisite to admissibility, electronic surveillance tapes must either bear a seal or the Government must provide a “satisfactory explanation” for the “absence” of a seal, the “satisfactory explanation” requirement does not apply where the tapes to be offered in evidence actually bear
The primary thrust of § 2518(8)(a), see S. Rep. No. 1097, 90th Cong., 2d Sess., 105 (1968), and a congressional purpose embodied in Title III in general, see, e. g., United States v. Giordano, 416 U. S. 505, 515 (1974), is to ensure the reliability and integrity of evidence obtained by means of electronic surveillance. The presence or absence of a seal does not in itself establish the integrity of electronic surveillance tapes. Rather, the seal is a means of ensuring that subsequent to its placement on a tape, the Government has no opportunity to tamper with, alter, or edit the conversations that have been recorded. It is clear to us that Congress viewed the sealing requirement as important precisely because it limits the Government’s opportunity to alter the recordings.
The Government’s view of the statute would create the anomalous result that the prosecution could delay requesting a seal for months, perhaps even until a few days before trial, without risking a substantial penalty. Since it is likely that a
The Government’s second contention is that even if § 2518 (8)(a)’s “satisfactory explanation” requirement applies to delays in sealing tapes, it is satisfied if the Government first explains why the delay occurred and then demonstrates that the tapes are authentic. This submission, however, also is not a sensible construction of the language of § 2518(8) (a) and would essentially nullify the function of the sealing requirement as a safeguard against tampering. The statute requires a satisfactory explanation, not just an explanation. It is difficult to imagine a situation in which the Government could not explain why it delayed in seeking to have tapes sealed. Even deliberate delay would be enough, so long as the Government could establish the integrity of the tapes; yet deliberate delay could hardly be called a satisfactory explanation. To hold that proof of nontampering is a substitute for a
It is true that offering to prove that tapes are authentic would be consistent with Congress’ concern about tampering,
The Government contends that it has an incentive to seal tapes immediately because otherwise, even under its proposed test, it will face lengthy pretrial suppression hearings in which it must establish the authenticity of tape recorded conversations. This is no more than a statement that only rarely would there be a delay and does not answer the issue posed where there is a delay that is not satisfactorily explained. Furthermore, the incentive argument is suspect since timely sealing, as the Government concedes, Tr. of Oral Arg. 10-11, 22-23, does not foreclose a challenge to authenticity, which in any event would require lengthy proceedings.
We conclude that the “satisfactory explanation” language in § 2518(8)(a) must be understood to require that the Government explain not only why a delay occurred but also why it is excusable. This approach surely is more consistent with the language and purpose of § 2518(8)(a).
Finally, we must consider whether the Government established good cause for the sealing delays that occurred in this case. The Government contends in this Court that its delays were the result of a good-faith, objectively reasonable misunderstanding of the statutory term “extension. ” According to
In one case, the Second Circuit held that an electronic surveillance order that was entered at least 16 days after a prior order had expired was to be regarded as an “extension” within the meaning of § 2518 because it “was clearly part of the same investigation of the same individuals conducting the same criminal enterprise” as was being investigated under the prior order. United States v. Principie, 531 F. 2d 1132, 1142, and n. 14 (1976), cert. denied, 430 U. S. 905 (1977). In a subsequent case, again involving a gap between the expiration of an order and an “extension,” the court indicated that under the circumstances presented later orders could be deemed extensions of prior ones and stated that where an “intercept is of the same premises and involves substantially the same persons, an extension under these circumstances requires sealing only at the conclusion of the whole surveillance.” United States v. Scafidi, 564 F. 2d 633, 641 (1977), cert. denied, 436 U. S. 903 (1978).
These cases do not establish that the Government’s asserted understanding of the law in this case was correct; indeed, the Second Circuit’s decision in this case indicates the contrary, but the cases do support the conclusion that the “extension” theory now pressed upon us was objectively reasonable at the time of the delays. Thus, we conclude that the excuse now advanced by the Government is objectively reasonable. In establishing a reasonable excuse for a sealing delay, the Government is not required to prove that a particular understanding of the law is correct but rather only that its interpretation was objectively reasonable at the time. To the extent the Second Circuit in this case required an ab
Nevertheless, we must remand this case for further proceedings. A “satisfactory explanation” within the meaning of § 2518(8)(a) cannot merely be a reasonable excuse for the delay presented at the appellate level. Rather, our review of the sufficiency of the Government’s explanation for a delay should be based on the evidence presented and submissions made in the District Court. Therein lies the problem in this ease. Whether the supervising attorney actually advanced the Government’s “extension” theory in the District Court is not clear. Compare App. 4-5 (no sealing required for an ongoing investigation until a “meaningful hiatus” occurred), and id., at 26-27 (same), with id., at 36 (separate orders viewed as extensions of an interrelated investigation), and id., at 40 (same). Thus, even though the misunderstanding now pressed by the Government was objectively reasonable, that explanation is not “satisfactory” within the meaning of the statute unless it was relied on at the suppression hearing to explain the sealing delays. Because the Second Circuit did not address this threshold question, the case must be remanded for a determination whether the Government’s explanation to the District Court substantially corresponds to the explanation it now advances.
The judgment of the United States Court of Appeals for the Second Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Title III also contains a general suppression remedy, not applicable in this case, that provides for suppression when electronic communications have been unlawfully intercepted, were intercepted pursuant to a court order that is facially invalid, or were not intercepted in conformity with the order of authorization. See 18 U. S. C. §2518(10).
Section 2517(3) provides that “[a]ny person who has received, by any means authorized by this chapter, any information concerning a wire, oral, or electronic communication, or evidence derived therefrom intercepted in accordance with the provisions of this chapter may disclose the contents of that communication or such derivative evidence while giving testimony under oath or affirmation in any proceeding held under the authority of the United States or of any State or political subdivision thereof.”
Nothing in §2518(8)(a) itself clearly indicates whether district courts have any authority or discretion to deny a governmental request for sealing. The Government suggested at oral argument that district courts may have such authority but did not indicate that, if so, they have ever exercised it. Tr. of Oral Arg. 9. Respondents’ countered that under the statute district courts have a mandatory duty to seal tapes, regardless of the timing of the request. Id., at 36-37, 47.
See, e. g., United States v. Gigante, 538 F. 2d 502, 506-507 (CA2 1976); United States v. Johnson, 225 U. S. App. D. C. 33, 42, 696 F. 2d 115, 124 (1982); United States v. Massino, 784 F. 2d 153, 156 (CA2 1986); United States v. Mora, 821 F. 2d 860, 864-865 (CA1 1987).
It also is true that some Courts of Appeals have agreed with the Government in this respect. See, e. g., United States v. Falcone, 505 F. 2d 478, 484 (CA3 1974); United States v. Sklaroff, 506 F. 2d 837, 840-841 (CA5 1975); United States v. Cohen, 530 F. 2d 43, 46 (CA5 1976); United States v. Lawson, 545 F. 2d 557, 564 (CA7 1975); United States v. Diadone, 558 F. 2d 775, 780 (CA5 1977); McMillan v. United States, 558 F. 2d 877, 878-879 (CA8 1977); United States v. Angelini, 565 F. 2d 469, 471-473 (CA7 1977). As explained above, we read § 2518(8)(a) differently.
Concurring Opinion
with whom Justice Blackmun joins, concurring.
I join the Court’s opinion on the understanding that a “satisfactory explanation” within the meaning of 18 U. S. C. §2518(8)(a) cannot merely be a reasonable excuse for the delay; it must also reflect the actual reason for the delay. Thus, as the Court today holds, an appellate court’s review of
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