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06/27/74 United States of America, v. Frank R. Scott


June 27, 1974






McGowan, MacKinnon and Robb, Circuit Judges.


Appeals from the United States District Court for the District of Columbia.



Opinion for the Court filed by Circuit Judge MCGOWAN.

MCGOWAN, Circuit Judge:

The Government appeals a District Court determination that (1) law enforcement officials conducting a judicially authorized wiretap failed to minimize, to the degree required by the statute, interceptions of non-narcotics-related conversations and (2) all evidence derived therefrom should be suppressed. United States v. Scott, 331 F. Supp. 233 (D.D.C. 1970). We deferred decision pending action by this court on another case involving common issues, including that of minimization. United States v. James, 161 U.S. App. D.C. 88, 494 F.2d 1007 (1974). We conclude that the standards for measuring minimization employed by the District Court are at variance with those subsequently announced and thoroughly discussed in James. Accordingly, we remand for reconsideration in light of that opinion and the additional comments contained herein. I

Pursuant to the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, officials of the Federal Bureau of Narcotics and Dangerous Drugs and the Metropolitan Police Department applied for judicial authorization to intercept wire communications of members of a narcotics conspiracy who were using a telephone listed to Geneva Jenkins. *fn1 The District Court granted authorization on January 24, 1970, empowering agents to intercept the "wire communications of Alphonso H. Lee, Burnis Lee Thurmon, and other persons as may make use of the facilities hereinbefore described," and commanding them to minimize interceptions of conversations not subject to interception under Title III.

On that same day the interception began. Officials subsequently sought and obtained authorization to intercept narcotics-related conversations conducted over two other telephone numbers, *fn2 and later obtained an extension of the original authorization. *fn3 On February 24, 1970, all of the interceptions terminated, and search and arrest warrants were executed that led to the arrest of twenty-two persons and the seizure of considerable quantities of narcotics.

Following indictment, another district judge ordered comprehensive discovery and thereafter conducted an extensive series of hearings on multiple defense motions. The court concluded that the agents conducting the interception of conversations over the Jenkins phone had failed to comply with the minimization mandate, and ordered suppression of conversations intercepted in that wiretap and all other evidence derived therefrom. The Government, after failing in its attempt to obtain reconsideration of the court's order, exercised its statutory right of appeal. 18 U.S.C. § 2518 10 (b).

Minimization was but one of a number of issues urged upon the District Court during the extensive pretrial hearings. The defendants advanced individual contentions, as well as numerous common questions pertaining to the constitutionality of Title III and to the implementation of the statutory requirements in this case. Moreover, the court was at the time essentially writing on a clean slate. Few appellate decisions existed to offer guidance in the resolution of the many complex constitutional and statutory problems underlying Title III, and this court had not as yet spoken to those questions at all. James now teaches that the District Court properly rejected appellees' constitutional challenge to the provisions of Title III. United States v. James, 161 U.S. App. D.C. 88, 494 F.2d 1007 (1974). Moreover, we have examined the affidavit filed in support of the application for authorization to intercept conversations on the Jenkins phone, and we feel that the court properly rejected all challenges to its sufficiency. See id. Finally, we concur in the court's rejections of appellees' contentions that the authorizing order insufficiently particularized the conversations that could be intercepted. II

The Government asserts that the court erred in permitting each "aggrieved person," in the language of the statute, to raise a minimization objection based on the interception of conversations in which he did not participate, insisting that this enables appellees to assert the privacy interests of others in violation of long established principles of the Fourth Amendment law. See generally Brown v. United States, 411 U.S. 223, 230, 36 L. Ed. 2d 208, 93 S. Ct. 1565 (1973), and cases cited therein. Pointing out that all of the conversations cited by the court involve either Geneva Jenkins or appellee Bernis Thurmon and third parties, the Government maintains that only Geneva Jenkins and appellee Thurmon have standing to suppress intercepted conversations.

The Congressional definition of "aggrieved person" was designed "to reflect existing law." S. REP. NO. 90-1097, 90th Cong., 2d Sess., 91 (1968). See also Alderman v. United States, 394 U.S. 165, 175, 22 L. Ed. 2d 176, 89 S. Ct. 961 n. 9 (1969); United States v. King, 478 F.2d 494, 506-07 (9th Cir. 1973); United States v. Doe, 451 F.2d 466, 469 (1st Cir. 1971). Moreover, Congress understood that this would serve to limit the statutory remedy so as not to "press the scope of the suppression rule beyond the present search and seizure law." S. REP. NO. 90-1097 (supra) at 96.

There appears to be no question that each of the appellees in this case is an "aggrieved person" within the meaning of the statute. *fn4 As such, each is protected by the stringent safeguards of Title III, including the requirement that agents minimize interceptions of conversations that they are not authorized to intercept. Each aggrieved person is entitled to question whether the statutory minimization requirement has been satisfied and, on proving that it has not, to move to suppress a communication on the ground that "the interception was not made in conformity with the order of authorization or approval." 18 U.S.C. 2518(10) (a) (iii). The question presented by the Government's challenge is really whether some of the appellees can introduce evidence based on conversations in which they did not participate in order to attempt to demonstrate that the intercepted conversations to which they were a party were not, in the statutory phrase, seized "in conformity with the order of authorization." *fn5

Any inquiry into possible noncompliance with the minimization requirement is, by its very nature, one that calls for an examination of the totality of the monitoring agents' conduct during the duration of the authorized interception. Fragmenting the minimization inquiry in the manner suggested by the Government would force the court to adopt an unrealistically narrow view of the issue, thus making any assessment of the overall reasonableness of the agents' conduct a highly artificial exercise. The District Court properly recognized this, and rejected the Government's argument. *fn6 The court also properly recognized the necessity of assessing the totality of the agents' conduct, and indeed considered the cited conversations only as examples of their actions. See Scott, supra p. 2, at 247. We find no error in this regard. *fn7

Examination of the District Court's resolution of the merits discloses, however, that the court did apply an improper standard in assessing the agents' alleged noncompliance with the minimization requirement. As James and other cases make clear, any minimization determination requires an assessment of the reasonableness of the agents' efforts in light of the purpose of the wiretap and the information available to them at the time of interception. See also United States v. Bynum, 360 F. Supp. 400 , aff'd, 485 F.2d 490 (2d Cir. 1973), vacated on other grounds, 417 U.S. 903, 94 S. Ct. 2598, 41 L. Ed. 2d 209, 42 U.S.L.W. 3646 (1974); United States v. Focarile, 340 F. Supp 1033 (D. Md.), aff'd sub nom. United States v. Giordano, 469 F.2d 522 (4th Cir. 1972), aff'd, 416 U.S. 505, 94 S. Ct. 1820, 40 L. Ed. 2d 341, 42 U.S.L.W. 4642 (1974).

It appears that the trial court's conclusion that the agents made no attempt to minimize stemmed in large part from its conclusion that they failed to succeed. The court relied heavily upon the fact that some sixty percent of the intercepted conversations appeared to be unrelated to narcotics transactions. This, together with the fact that the agents intercepted all of the conversations conducted during this period of authorization, in the opinion of the District Court, "strongly indicate[d] the indiscriminate use of wire surveillance that was proscribed by Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 and Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040." Scott, supra p. 2, at 247. The court purported to find confirmation of this initial impression in its examination of certain conversations which, in its opinion, clearly should not have been intercepted.

This court's intervening opinion in James indicates that an assessment of the reasonableness of agents' attempts to minimize must be judged on a considerably more particularized basis. For example, a substantial number of the intercepted conversations that cannot be classified as narcotics-related appear to have been either very short in duration or extremely ambiguous in nature, or both. Interception of those conversations cannot be considered unreasonable, for the agents could not have determined whether they were innocent prior to their termination. See United States v. Bynum, 485 F.2d 490, 500 (2d Cir. 1973), vacated on other grounds, 417 U.S. 903, 94 S. Ct. 2598, 41 L. Ed. 2d 209, 42 U.S.L.W. 3646 (1974). And, if the Government's characterization of the number of intercepted conversations of this type proves substantially correct, it would appear that the District Court's determination that sixty percent of the intercepted calls were unrelated to narcotics substantially overstates the case for noncompliance with the order to minimize. Likewise, the cited conversations between appellee Geneva Jenkins and her mother must be examined more carefully. While all of the conversations may appear in retrospect to have been innocent, that does not necessarily indicate that each interception was unreasonable. The conduct of the agent must be assessed in light of the information available to them at the time. If the Government's assertion that agents had reasonable cause to suspect the mother's knowledge of the narcotics conspiracy proves correct, interception of those conversations would not be unreasonable, at least until such time as the initial suspicion should have been dissipated. III

While examination of the District Court's opinion persuades us that the court applied improper standards in resolving the minimization question, we cannot with equal certainty determine what the proper resolution of the issue should be. Many of the underlying facts essential to an assessment of the reasonableness of the agents' conduct have not been established. Much of the Government's argument in this court is based on an analysis prepared by it of the intercepted calls, including its resulting characterization of the information available to the agents at the time of the particular interceptions. This comprehensive analysis was not made available to the court prior to the motion for reconsideration of its suppression order, and the transcript of the hearing on that motion indicates that it was not carefully examined at that time.

The call analysis, while not technically new evidence, may suffer some of the same infirmities. It may, for example, contain errors of characterization or other factual inaccuracies that can best be identified and corrected in adversarial proceedings. Likewise, the Government's characterization of the nature of information available to the intercepting agents should be subject to appellees' scrutiny and challenge. Only after the court is satisfied that it has a complete and accurate picture of the agents' actions can it make a meaningful assessment of the reasonableness of their conduct.

The District Court, upon remand, should accept the call analysis and any other evidence that might appear to be of assistance in the resolution of this complicated minimization question. And, after assuring itself of the validity of the evidentiary offerings, it should again assess the reasonableness of the agents' conduct in light of James and the comments contained herein.

The suppression order is vacated without prejudice, and the case is remanded to the District Court for re-examination of the minimization issue in the light of James and for further proceedings consistent herewith.

It is so ordered.

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