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

June 27, 1974

UNITED STATES OF AMERICA, APPELLANT

v.

FRANK R. SCOTT, ET AL. UNITED STATES OF AMERICA, APPELLANT

v.

BERNIS L. THURMON, ET AL. 1974.CDC.149



McGowan, MacKinnon and Robb, Circuit Judges.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

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

APPELLATE PANEL:

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCGOWAN

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 ...


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