The Supreme Court and Title Iii: Rewriting the Law of Electronic Surveillance

Journal of Criminal Law and Criminology Volume 74 Article 1 Issue 1 Spring Spring 1983 The uprS eme Court and Title III: Rewriting the Law of Electronic Surveillance Michael Goldsmith Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Michael Goldsmith, The uS preme Court and Title III: Rewriting the Law of Electronic Surveillance, 74 J. Crim. L. & Criminology 1 (1983) This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4169/83/7401-1 THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY . Vol. 74, No. I Copyright © 1983 by Northwestern University School of Law P'ntdin USA. THE SUPREME COURT AND TITLE III: REWRITING THE LAW OF ELECTRONIC SURVEILLANCE MICHAEL GOLDSMITH* I. INTRODUCTION .............................................. 3 II. HISTORICAL ORIGINS OF TITLE III ...................... 7 A. THE ORIGINAL CONSTITUTIONAL FRAMEWORK: OLMSTEAD AND ITS EARLY PROGENY ................ 7 B. THE FEDERAL COMMUNICATIONS ACT OF 1934: STATUTORY PRECURSOR TO TITLE III ................ 10 C. THE REVISED CONSTITUTIONAL FRAMEWORK ........ 13 1. PreliminaqModifiations ........................... 13 2. Berger v. New York and Katz v. United States... 21 III. LEGISLATIVE DESIGN ........................................ 32 A. THE CONTEXT OF REFORM ............................ 32 B. THE MECHANICS OF REFORM .......................... 38 C. TITLE III STANDARDS ................................... 39 1. Prohibitionsand Sanctions .......................... 39 2. Prerequisitesto Lawful Surveillance .................. 41 a. Jurisdictional requirements ................... 41 b. Documentary requirements .................. 42 * Assistant Professor of Law, Vanderbilt Law School. J.D., Cornell Law School, 1975; B.S., Cornell University, 1972. Permission of the author is required for reproduction. I would like to express my appreciation to various colleagues, support personnel, and students who contributed to this project. Specifically, acknowledgements must go to Notre Dame Law Professor G. Robert Blakey, Vanderbilt Law Professor Donald Hall, and Ronald Goldstock, Director of the New York State Organized Crime Task Force, for generously con- tributing their time both in discussions with me and in reviewing an early draft of this work. They are not, however, responsible for the flaws of my ways. In addition, I would like to thank Vanderbilt law students Thomas Banks, Barbara Bennett, and Kathy Hunt for providing first rate research support, and Robert Frey, Leo Hylan, Steve McKnight, Ronald Rychlak, Jerry Seidler, and Craig Weinstock for providing loyal support during the final documentation of my footnotes. Nor could the project have been completed without the extraordinary assistance of Vanderbilt law librarian Howard Hood and secretaries Debby Jobe, Faye Johnson, Margaret Manofsky, Celia Miller, and Debbie Skelly. Finally, while it is somewhat unusual to dedicate articles of this kind, this one is for my wife, Constance Healey, who stuck with me through it all. MICHAEL GOLDSMITH [Vol. 74 c. Executional requirements ...................... 43 3. Judicial Super'sion and Stn'zt Enforcement ........... 44 4. The CriticalResponse .............................. 44 IV. THE SUPREME COURT AND THE DEMISE OF STRICT ENFORCEMENT ............................................. 56 A. ALDERMAN V UNITED STATES ......................... 56 B. UNITED STATES V UNITED STATES DISTRICT COURT. 63 C. GELBARD V UNITED STATES ............................ 66 D. UNITED STATES V GIORDANO AND UNITED STATES V. CHAVEZ ................................................. 76 E. UNITED STATES V. KAHN AND UNITED STATES V. DONO VAN .............................................. 85 F. SCOTT V UNITED STATES ............................... 97 G. DALIA V UNITED STATES .............................. 112 V. AFTEREFFECTS: ENFORCEMENT IN THE LOWER COURTS ................. 118 A. STANDING ............................................. 120 B. EXHAUSTION OF INVESTIGATIVE ALTERNATIVES ..... 125 C. PROBABLE CAUSE ...................................... 133 D. PARTICULARITY OF CONVERSATION .................. 138 E. PLAIN VIEW SEIZURES ................................. 141 F. SEALING ................................................ 150 VI. CONGRESSIONAL INACTION ................................ 155 VII. EXECUTIVE ENFORCEMENT: THE IRONY OF ELECTRONIC SURVEILLANCE ............................................. 157 VIII. CONCLUSION ............................................... 170 19831 ELECTRONIC SURVEILLANCE The telescreen receivedand transmittedsimultaneous'. Any soundthat Winston made, above the level ofa very low whisper, would be picked up by it; moreover, so long as he remained within the field of vision which the metal plaque commanded, he could be seen as well as heard There was ofcourse no way ofknowing whetheryou were being watched at any given moment. You hadto live--did live, from habit that became instinct-in the assumption that every soundyou made was overheard and, except in darkness, every movement scrutinized. George Orwell, 1984.** It's hardto argue with. tapes-It's too bad we couldn't have tapes at evey trial WatergateJuror *** I. INTRODUCTION The question of electronic surveillance has long posed a classic con- frontation between privacy interests and the need for effective law enforcement. Thus, while it has been suggested that Title III of the Omnibus Crime Control and Safe Streets Act of 1968' was enacted "[t]o guard against the realization of Orwellian fears and conform to the constitutional standards for electronic surveillance, ' 2 the statute can better be characterized as a conscious compromise forged by Congress between competing privacy and law enforcement concerns. The comprehensive provisions of Title III authorize the use of electronic surveillance-wire- taps and bugs3-as a law enforcement investigative technique, subject, ** G. ORWELL, NINETEEN EIGHTY-FOUR 4 (1949). Congress considered and rejected the proposition that electronic surveillance would necessarily lead to "excessive invasions of privacy and a Big Brother Society." S. REP. No. 1097, 90th Cong., 2d Sess. 66, reprintedin 1968 U.S. CODE CONG. & AD. NEWS 2112, 2238. See infra notes 214-15 and accompanying text. *** Ithaca Journal, Jan. 2, 1975, at 2, col. 2, quoted in NAT'L COMM'N, ELECTRONIC SUR- VEILLANCE, REPORT OF THE NATIONAL COMMISSION FOR THE REVIEW OF FEDERAL AND STATE LAWS RELATING TO WIRETAPPING AND ELECTRONIC SURVEILLANCE 198 (1976) (con- curring opinion of Commissioner Blakey). Consider also the following remarks attributed to a juror in the racketeering trial of Anthony Scotto, a Vice President of the International Longshoreman's Association, that "in the end it was the 'hard evidence'-especially the pros- ecution tape recordings--that persuaded the jury to find the waterfront labor leader guilty. ." N.Y. Times, Nov. 17, 1979, at 27, col. 5. The juror stated, "The tapes were crucial.... They had the hardest evidence and while we didn't make our decision based solely on the tapes, I'd say that, until we heard them again, quite a few people were unde- cided. In that sense, they were a turnaround." Id. col. 6. See infia note 1008. Similarly, Melvin Weinberg, the FBI's operative in the controversial Abscam investigation, has been quoted as saying, "we showed what was really going on. The tapes are the record. Nobody can change that." R. GREENE, THE STINGMAN 287 (1981). 1 18 U.S.C. §§ 2510-2520 (1976). Title III, the federal statute regulating the use of electronic surveillance does not cover so-called "consensual" electronic surveillance in which one party, usually a police officer or cooperating citizen, consents to the eavesdropping. 18 U.S.C. § 2511 (c)-(d) (1976). See NAT'L COMM'N, ELECTRONIC SURVEILLANCE, REPORT OF THE NA- TIONAL COMMISSION FOR THE REVIEW OF FEDERAL AND STATE LAWS RELATING TO WIRE- TAPPING AND ELECTRONIC SURVEILLANCE 10- 11, 115-17 [hereinafter cited as NWC Report]. See infira notes 286-91 and accompanying text. 2 United States v. Marion, 535 F.2d 697, 698 (2d Cir. 1976). 3 "Wiretapping generally refers to the interception (and recording) of a communication MICHAEL GOLDSMITH [Vol. 74 however, to compliance with a series of stringent statutory requirements and prior judicial approval.4 As such, Title III was the culmination of a forty year debate concerning the utility and constitutionality of electronic surveillance. The Supreme Court had resolved the constitutional merits of this debate a year earlier with its decisions in Berger v.New York 5 and Katz v. United States.6 Ironically, although both Berger and Katz suppressed the eavesdropping evidence under consideration, the two cases, taken together, provided for the first time a definitive blueprint for constitutionalizing the law of electronic surveillance. 7 It was this blueprint which served as the foundation for Title III. Nevertheless, because of the conflict between law enforcement and privacy interests, the enactment of federal electronic surveillance legisla- tion was not without controversy. 8 Because of this controversy, and because of virtually unanimous concern with the potential abuses posed by electronic surveillance, the statute

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