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UNITED STATES v. DALIA

January 11, 1977

UNITED STATES of America, Plaintiff,
v.
Lawrence DALIA and Daniel Rizzo, Defendants



The opinion of the court was delivered by: LACEY

 By an application dated March 14, 1973 the United States Department of Justice requested and received authorization to intercept telephonic conversations emanating from two telephones located on the business premises of defendant Lawrence Dalia. *fn1" On April 5, 1973 the Justice Department sought and received an extension of their authority to intercept wire communications of Dalia and others, and, on the same date, authority was acquired to commence oral interception at Dalia's office. Subsequently, on April 27, 1973 the final request for an extension of its eavesdropping authority was approved by the court. As a result of these orders, wire interception devices were installed and did operate from March 15 to May 16, 1973, and an oral interception device was similarly installed and did operate between April 5 and May 16, 1973. The objective sought to be obtained by these interceptions was a determination of the scope of and participants in an alleged conspiracy involving theft from interstate shipments and interference with commerce.

 An indictment charged this defendant with conspiracy and substantive crimes (18 U.S.C. §§ 371 and 2315) related to the theft and possession of an interstate shipment of textiles on or about April 3, 1973. On June 18, 1976 a jury verdict of guilty was returned.

 In presenting its case against defendant Dalia, the government used the results of the aforementioned electronic surveillance. Defendant objected and moved to suppress the results of all illegal electronic surveillance and for an evidentiary hearing regarding the manner in which those oral and wire interceptions were accomplished. A post-trial evidentiary hearing was held on July 29, 1976.

 In support of his motion, Dalia contends that those agents installing the device to intercept oral communications did unlawfully break and enter and trespass upon the premises of defendant, and by so doing did render any evidence obtained from that illegal entry inadmissible.

 Defendant's second contention is that the progress reports submitted by the government for extensions of time for the wire surveillance were falsified and if the court had known, no extensions would have been allowed. His final contention is that the tapes should be suppressed because the government failed to adhere to minimization requirements.

 Defendant preliminarily argues that the statements of the government, as well as its special agent, that normal investigative procedures reasonably appeared unlikely to succeed if tried, failed to satisfy the "full and complete statement" requirements of 18 U.S.C. § 2518(1)(c). The supporting affidavits submitted on April 5 and April 26, 1973, allegedly fell short of the elements enunciated by this court in United States v. Falcone, 364 F. Supp. 877, 889 (D.N.J.1973), aff'd, 505 F.2d 478 (3d Cir. 1974), cert. denied, 420 U.S. 955, 95 S. Ct. 1339, 43 L. Ed. 2d 432 (1975), in that the "applications for extensions offer very little toward a finding of the anticipated failure of standard methods of investigation." Defendant's Brief at 10. According to defendant, the government's sources could have verified the degree of involvement of defendant's co-conspirators and wiretapping was unnecessary. Additionally, it is argued, the agents, through wiretapping conversations pursuant to the original order, should have been able to pinpoint the locations or drops where stolen goods were stored so that continued eavesdropping was unnecessary.

 In an application for a court-ordered electronic surveillance under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510, et seq., the government must present the court with

 
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 . . . .

 18 U.S.C. § 2518(1)(c). The court may then authorize the interception if it determines that

 
normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous . . . .

 18 U.S.C. § 2518(3)(c).

 The statutory burden on the government is not great in showing compliance with § 2518(3)(c) and the government "need not prove to a certainty that normal investigative techniques will not succeed, but rather need only show that such techniques 'reasonably appear to be unlikely to succeed if tried.'" United States v. Armocida, 515 F.2d 29, 38 (3d Cir.), cert. denied, 423 U.S. 858, 96 S. Ct. 111, 46 L. Ed. 2d 84 (1975).

 Sections 2518(1)(c) and (3)(c) must be read in a common sense fashion. S.Rep. No. 1097, 90th Cong., 2d Sess., 1968 U.S. Code Cong. & Ad.News 2112, 2190. See also United States v. Armocida, supra. They are designed to assure that wiretapping is not resorted to in situations where traditional investigative techniques would suffice to expose the crime. United States v. Kahn, 415 U.S. 143, 153 n.12, 94 S. Ct. 977, 39 L. Ed. 2d 225 (1974); United States v. Robertson, 504 F.2d 289, 293 (5th Cir. 1974), cert. denied, 421 U.S. 913, 95 S. Ct. 1568, 43 L. Ed. 2d 778 (1975). Their purpose "is not to foreclose electronic surveillance until every other imaginable method of investigation has been unsuccessfully attempted, but simply to inform the issuing judge of the difficulties involved in the use of conventional techniques." United States v. Pacheco, 489 F.2d 554, 565 (5th Cir. 1974), cert. denied, 421 U.S. 909, 95 S. Ct. 1558, 43 L. Ed. 2d 774 (1975).

 The three probable cause affidavits that Special Agent Hokenstad submitted to me were facially sufficient for me to make a determination that alternative investigative measures had either been tried and failed, see United States v. Robertson, supra, reasonably appeared unlikely to succeed if tried, see United States v. Armocida, supra, 515 F.2d at 38, or were too dangerous to be used. Id. Defendant's allegations as to pinpointing locations and the use of sources are not supported by affidavit or any other materials and are mere speculation.

 Defendant next contends that an applicant for an interception order is expected to request the approval of the court to break and enter in order to install the electronic device. The court, it is asserted, did not therefore pass upon the question of whether the authorized surveillance could be accomplished in some lesser manner.

 In support of this argument, defendant relies upon the holding in United States v. Ford, 414 F. Supp. 879 (D.D.C.1976). In that case the ruse of two bomb scares at defendant's premises was used to gain entry by the government. The warrant had stated that "entry and re-entry may be accomplished in any manner, including, but not limited to, breaking and entering or other surreptitious entry, or entry and re-entry by ruse and stratagem." Id. at 881-82. The court found the warrant to be invalid. It held that the issuing judge had a necessary role, under 18 U.S.C. § 2518(4), in determining the manner of entry and that this role had been wrongfully and without direction assigned to the executing officers. The warrant was found to be facially overbroad and illegal. Id. at 884-85.

 Defendant also relies upon the dicta of the court in United States v. Agrusa, 541 F.2d 690 (8th Cir. 1976), where the court approved interception of wire and oral communications conducted by means of a forcible and surreptitious entry because there was prior judicial direction to the officers to break and enter. The court stated, however, that:

 
we do not decide what result obtains if the officers act without express court authorization to break and enter (although with court authorization to intercept). We are certain, however, that the resolution becomes much more difficult in that event, and we commend the procedures employed here to law enforcement officials in the future.

 Id. at 696 n.13.

 Neither 18 U.S.C. § 2518(4), which specifies the necessary contents of a Title III authorization order, nor Rule 41(c) of the Federal Rules of Criminal Procedure, which indicates that a warrant must identify the property, and name or describe the person or place to be searched, requires the court to direct the manner of entry.

 Because the warrant for the seizure of oral communications was based on probable cause, the question becomes whether or not the manner of executing the warrant was unreasonable.

 The majority of cases concerning the manner of entry pursuant to a warrant are framed in terms of whether or not the manner of entry and/or execution of the warrant were so excessive as to be unreasonable under the fourth amendment.

 Thus where real property is involved, there is the general requirement that officers must give notice of their authority and purpose and be refused entry before they may break into the premises to be searched. 18 U.S.C. § 3109. The general purposes of this requirement are to protect against unnecessary breaches of the peace, and prevent embarrassing sudden exposure of private activities. See United States v. Bustamante-Gamez, 488 F.2d 4, 11-12 (9th Cir. 1973), cert. denied, 416 U.S. 970, 94 S. Ct. 1993, 40 L. Ed. 2d 559 (1974).

  In United States v. Gervato, 474 F.2d 40 (3d Cir.), cert. denied, 414 U.S. 864, 94 S. Ct. 39, 38 L. Ed. 2d 84 (1973), the court held that there is also no requirement that the premises be occupied at the time of a search. In Gervato, the agent knew by surveillance that the premises were unoccupied. The agent forced open the door and conducted the authorized search. The court, in its analysis, outlined the history of the fourth amendment and indicated that its primary purpose was to put an end to general searches and warrants, i.e., to insure that the place and property to be seized were particularly described. Id. at 41-44.

 It should be noted that there was no indication in Gervato that the agent should have received a court order to ...


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