ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(Criminal Action Nos. 95-00092-4, 95-00092-1, 95-00092-2)
Before: COWEN, ALITO, and SEITZ, Circuit Judges
Opinion Filed: August 26, 1997
Salvatore A. Williams, Salvatore C. Williams, and Adolph Williams (the "defendants") entered conditional pleas of guilty to offenses related to the operation of an illegal gambling business. On appeal, they contest the district court's denial of pretrial motions, including motions to suppress the evidence derived from electronic oral and video surveillance *fn1 and evidence obtained in a search of Adolph Williams's home. We affirm.
The illegal gambling operation that resulted in the defendants' convictions began in the 1960's. In initially investigating the operation, the Pennsylvania State Police utilized a confidential informant and conducted physical surveillance of an office located at 1420 Fifth Avenue, Pittsburgh (the "Fifth Avenue premises") that was believed to serve as the operation's headquarters. Concluding that these investigative techniques were insufficient, the District Attorney of Allegheny County filed applications in the Superior Court of Pennsylvania under the state Wiretapping and Electronic Surveillance Control Act, 18 Pa. Cons. Stat. Ann. Section(s) 5701-26, seeking authorization for the state police to conduct electronic oral and video surveillance of two rooms of those premises. The applications were supported by an affidavit of two Pennsylvania State Troopers who explained some of the evidence already gathered by other means and the basis for their belief that electronic oral and video surveillance were necessary. Some of the information contained in the affidavit was provided by the confidential informant who had worked within the organization for seven years. The affidavit further stated that the state police were conducting the investigation in conjunction with the Federal Bureau of Investigation. A. 50-124. *fn2
On June 26, 1991, Judge Justin M. Johnson of the Superior Court signed an order authorizing electronic oral surveillance of the Fifth Avenue premises for a period of 30 days. He denied the request for video surveillance authorization, believing that the state wiretapping statute did not empower a Superior Court judge to authorize video surveillance, but he provided that his orders were"entered without prejudice to the applicant seeking further additional relief in the appropriate Court of Common Pleas." *fn3 A. 18(d). Accordingly, the next day, the District Attorney filed an application for video surveillance in the Court of Common Pleas of Allegheny County. This application was supported by the same affidavit as the application for electronic oral surveillance previously filed in the Superior Court. Court of Common Pleas Judge Robert Dauer granted the application and authorized video surveillance of the same two rooms for a period of 30 days. After 30 days passed, the District Attorney requested and received extensions for both orders from the respective courts. All electronic oral and video surveillance of the Fifth Avenue premises ended on Friday, August 9, 1991. On Monday morning, August 12, 1991, the tapes of the surveillance were sealed.
In May 1993, the United States Attorney for the Western District of Pennsylvania applied to a federal magistrate judge for a search warrant for the residence of Adolph Williams at 274 Foxcroft Road, Pittsburgh (the "Foxcroft Road residence"). The application was supported by an affidavit executed jointly by a Special Agent of the FBI and a Pennsylvania State Trooper who were involved in the investigation. The affidavit stated that physical surveillance had revealed that an individual associated with the operation took betting slips twice daily from a location on Fifth Avenue, Pittsburgh, to the Foxcroft Road residence. The affidavit related that in an intercepted comment Adolph Williams had said that he would take the gambling proceeds to his home for safekeeping, and the affidavit added that the confidential informant had learned that Adolph Williams had a hiding place in his residence that was used for storing records. On May 25, 1993, the magistrate judge issued the search warrant. The search was conducted on that day and resulted in the seizure of currency, gambling records, and other evidence.
The office of the United States Attorney for the Western District of Pennsylvania presented the case to a federal grand jury, and some of the electronically intercepted evidence was disclosed to the grand jury, even though no court order specifically authorizing such disclosure had been obtained. Some of this same evidence was also disclosed to agents with the Criminal Investigation Division of the Internal Revenue Service. A. 317.
The grand jury returned a 27-count indictment, charging conspiracy and various gambling and income tax offenses. The defendants moved to suppress much of the evidence intercepted through the electronic oral and video surveillance, as well as the evidence seized from the search of the Foxcroft Road residence. The district court initially suppressed evidence derived from the oral and video surveillance on the ground that it exceeded the periods authorized by the state court judges. The government appealed, and we reversed in an unpublished opinion, holding that the district court had misinterpreted the state court orders. United States v. Williams, No. 95-3529 (3d Cir. May 20, 1996). On remand, the defendants all entered conditional guilty pleas that preserved for appeal the district court's denial of their other pretrial motions.
Salvatore A. Williams pleaded guilty to one count of violating 18 U.S.C. Section(s) 371 by conspiring to conduct an illegal gambling business in contravention of 18 U.S.C.Section(s) 1955(a). He was sentenced to one month of imprisonment and two years of probation. Salvatore C. Williams and Adolph Williams pleaded guilty to conducting an illegal gambling business, in violation of 18 U.S.C. Section(s) 1955 and 2, and to one count of violating 18 U.S.C. Section(s) 371 by conspiring to defraud the United States of wagering tax revenue. They were sentenced to 15-month terms of imprisonment and three-year terms of supervised release, and they were fined $40,000 and $4,000, respectively. The defendants then took this appeal.
On appeal, the defendants contend (1) that the district court erred in refusing to suppress the video surveillance evidence because that surveillance was conducted in violation of the Fourth Amendment; (2) that the evidence seized from Adolph Williams's home should have been suppressed because the warrant was not supported by probable cause; (3) that the charges under 18 U.S.C.Section(s) 1955 should have been dismissed because those charges were based on violations of Pennsylvania gambling statutes that violate the Equal Protection Clause; (4) that the district court erred in refusing to suppress the electronically intercepted oral evidence because the Pennsylvania wiretapping statute does not comply with the certain requirements of Title III of the federal Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.Section(s) 2510-2520 ("Title III"); (5) that the district court erred in refusing to suppress the electronically intercepted oral evidence because it was disclosed in violation of 18 Pa. Cons. Stat. Ann. Section(s) 5718 and 5717(a); (6) that the district court erred in refusing to suppress the electronically intercepted oral evidence because there was no necessity for the use of this investigative technique, as is required by 18 Pa. Cons. Stat. Ann. Section(s) 5709(3)(vii) and 18 U.S.C. Section(s) 2518(1)(c); (7) that the extension of the period of electronic surveillance was unjustified and that the evidence obtained as a result should have been suppressed; and (8) that the district court erred in refusing to suppress the electronically intercepted oral evidence because the tapes were not timely sealed as required by Title III and the state wiretapping statute. *fn4
We turn first to the defendants' argument that the video surveillance of the Fifth Avenue premises violated the Fourth Amendment and that the evidence resulting from this surveillance should have been suppressed. The defendants do not contend that either Title III or the Pennsylvania wiretapping statute authorizes or prohibits video surveillance. Instead, they base their arguments on the understanding of the governing legal principles set out in United States v. Torres, 751 F.2d 875 (7th Cir. 1984). In Torres, the Seventh Circuit held, among other things, that Title III has no application to video surveillance, id. at 880-82; that a federal district court has the authority, either under Federal Rule of Criminal Procedure 41 or by virtue of its inherent powers, to issue a warrant for video surveillance, id. at 877-80; that video surveillance is a search governed by the Fourth Amendment, id. at 882; and that if the government conducts video surveillance in conformity with certain requirements of Title III, including the requirement of judicial certification 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. Section(s) 2518(3)(c), then the government has also conformed to the related requirements contained in the Fourth Amendment's warrant clause, 751 F.2d at 882. *fn5 No party in this appeal contests any of these principles, and therefore we will assume their validity for present purposes.
A. The defendants contend that the video surveillance in this case was "unreasonable" within the meaning of the Fourth Amendment because the nature of the crimes under investigation did not justify the use of such an intrusive investigative technique. In making this argument, the defendants rely on certain statements in Torres . While upholding the video surveillance in that case, which targeted "safe houses" in which it was believed that a terrorist group was assembling bombs, the Torres court wrote:
The usual way in which judges interpreting the Fourth Amendment take account of the fact that searches vary in the degree to which they invade personal privacy is by requiring a higher degree of probable cause (to believe that the search will yield incriminating evidence), and by being more insistent that a warrant be obtained if at all feasible, the more intrusive the search is. But maybe in dealing with so intrusive a technique as television surveillance, other methods of control as well, such as banning the technique outright from use in the home in connection with minor crimes, will be required, in order to strike a proper balance between public safety and personal privacy. That question is not before us, but we mention it to make clear that in declining to hold television surveillance unconstitutional per se we do not suggest that the Constitution must be interpreted to allow it to be used as generally as less intrusive techniques can be used.
751 F.2d at 882-83 (emphasis added) (citations omitted).
Relying on these remarks, the defendants maintain that their offenses were not sufficiently serious to justify video surveillance. However, the video surveillance in this case was not conducted in a "home," and the order authorizing the video surveillance was based on a finding that the defendants had committed, were committing, and would continue to commit first-degree felonies, which are punishable by imprisonment for up to 20 years. *fn6 Thus, even the equivocal and limited Torres dicta does not support reversal.
We note that every court of appeals that has addressed video surveillance has held that video surveillance conforming to the standards set out in Title III is constitutional, and we have found no case that suggests that the application of these standards depends upon the nature of the crime or crimes under investigation. Title III standards were applied in every case, covering a range of crimes from counterfeiting to drug distribution to loansharking. E.g., Falls, 34 F.3d 674 (conspiracy to distribute cocaine, distribution of cocaine, and related charges); Koyomejian, 970 F.2d 536 (money laundering); Mesa-Rincon, 911 F.2d 1433 (counterfeiting); Cuevas-Sanchez, 821 F.2d 248 (possession of marijuana with intent to distribute); Biasucci, 786 F.2d 504 (loansharking). For these reasons alone, we reject the defendants' argument here.
Moreover, we are skeptical of the defendants' general suggestion that a judicial officer, in deciding whether to issue a search warrant or in reviewing the issuance of a search warrant, should take into account his or her own evaluation of the seriousness of the felony or felonies under investigation. Other than the Torres dicta, the defendants cite no authority that provides any support for this proposition. In considering the reasonableness of a search or seizure, it is sometimes appropriate for a court to balance "the public interest and the individuals's right to personal security free from arbitrary interference by law officers." United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975); see also Maryland v. Wilson, 117 S. Ct. 882, 885 (1997). But it does not follow that a judicial officer, in weighing the public interest, may properly take into account his or her personal opinion regarding the need for or the importance of the criminal provisions that appear to have been violated. Like other citizens, judicial officers differ in their views regarding the seriousness of certain criminal offenses. If judicial officers were permitted to take their personal opinions on these matters into account in deciding whether a particular search was reasonable, the meaning of reasonableness under the Fourth Amendment would vary significantly depending on the particular judicial officer before whom the question was presented.
The defendants here characterize their gambling offenses as relatively benign, and there are undoubtedly those who would agree with this characterization. But that view of illegal gambling is not universal. In enacting Title III, Congress thought that gambling offenses were sufficiently serious to include them among the crimes in the investigation of which it is permissible to employ wiretapping and bugging, investigative techniques that result in a serious invasion of personal privacy. See 18 U.S.C. Section(s) 2516(1)(c) (permitting federal wiretapping or bugging to investigate illegal transmission of wagering information and operation of gambling enterprises); and id. Section(s) 2516(2) (permitting state wiretapping and bugging to investigate gambling offenses). Congress also has made it a felony, punishable by up to five years' imprisonment, to conduct, finance, manage, supervise, direct, or own all or part of an illegal gambling business. 18 U.S.C.Section(s) 1955. And Congress has designated violations of this provision as predicate offenses under the money laundering statute, id. Section(s) 1956, and the RICO statute, id.Section(s) 1961, which carry even more substantial penalties. In treating gambling offenses in this way, Congress has plainly concluded that certain gambling offenses are serious crimes, *fn7 and it is not for us to review the correctness of this evaluation. In sum, we reject the defendants' argument that the video surveillance in this case violated their Fourth Amendment rights on the ground that the offenses under investigation were insufficiently serious to justify the use of this intrusive investigative tool.
B. The defendants next assert that the video surveillance of the Fifth Avenue premises failed to meet Title III's requirement that "normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or are too dangerous." See 18 U.S.C. Section(s) 2518(3)(c). Specifically, the defendants argue that the application was defective because it did not state why electronic oral interception could not have been used before resorting to video surveillance. As a result, they argue that the video surveillance violated the Fourth Amendment as well.
In Title III cases, courts have consistently held that 18 U.S.C. Section(s) 2518(3)(c) does not require the government to exhaust all other investigative procedures before resorting to electronic surveillance. See United States v. Barnes, 47 F.3d 963, 965 (8th Cir. 1995); Falls, 34 F.3d at 682; Mesa-Rincon, 911 F.2d at 1443; United States v. Apodaca, 820 F.2d 348, 350 (10th Cir.), cert. denied, 484 U.S. 903 (1987); United States v. Webster, 734 F.2d 1048, 1055 (5th Cir.), cert. denied sub nom., Hoskins v. United States, 469 U.S. 1073 (1984). Rather, it is sufficient if there is evidence that "normal investigative techniques . . . reasonably appear to be unlikely to succeed if tried." 18 U.S.C. Section(s) 2518(3)(c). "The government need only lay a `factual predicate' sufficient to inform the judge why other methods of investigation are not sufficient." United States v. McGlory, 968 F.2d 309, 345 (3d Cir.) (quoting United States v. Armocida, 515 F.2d 29, 38 (3d Cir.), cert. denied sub nom., Conti v. United States, 423 U.S. 858 (1975)); cert. denied sub nom., Hauser v. United States, 506 U.S. 956 (1992). Furthermore, in determining whether this requirement has been satisfied, a court "may properly take into account affirmations which are founded in part upon the experience of specially trained agents." United States v. Ashley, 876 F.2d 1069, 1072 (1st Cir. 1989); see also United States v. Landmesser, 553 F.2d 17, 20 (6th Cir.), cert. denied, 434 U.S. 855 (1977). "The government's showing is to be `tested in a practical and commonsense fashion.' " McGlory, 968 F.2d at 345 (quoting United States v. Vento, 533 F.2d 838, 849 (3d Cir. 1976)). *fn8
Since the defendants contend that the Fourth Amendment should be held to require compliance with 18 U.S.C. Section(s) 2518(3)(c) in video surveillance cases, we see no reason why the rules developed in cases in which that provision is directly applicable should not be applied here as well, and it appears that other courts of appeals in video surveillance cases have taken on this approach. Our review of those cases shows that the inadequacy of other investigative techniques has been proven by demonstrating such factors as the inability of a confidential informant to gather additional information, the futility of electronic oral surveillance where the crime was being committed in silence, the use of evasive tactics by the investigation's targets, and the difficulty of penetrating an organization with a secretive nature and a propensity towards violence.
For example, in Falls, the affidavit stated that a government informant who had been successful in getting information in the past would no longer be helpful because she was not privy to the drug distribution group's sources, the extent of the operation, or its method of distributing the proceeds. 34 F.3d at 677. The affidavit further stated that her access to the group's meeting place was limited by safety concerns. Id. The affidavit named and discussed a total of seven investigative techniques that had been tried or appeared too dangerous or unlikely to succeed in light of the drug conspiracy's secretive nature and propensity towards violence. Id. at 683. These affirmations were held to be sufficient to demonstrate the inadequacy of other investigative techniques. Id.
In Mesa-Rincon, the government submitted an affidavit asserting that audio surveillance was not feasible because the crime, counterfeiting, could be committed without oral communication and because the noise of the printing presses drowned out any conversation. 911 F.2d at 1444. The affidavit also stated that interrogation and infiltration of the operation were not viable alternatives, because either technique would have aroused suspicion and prevented the successful completion of the investigation. Id. In addition, the affidavit asserted that a traditional search would likewise have been unfruitful, because it was "quite likely that the key evidence of actual counterfeit bills might not be found." Id. at 1445. Under these circumstances, the court held that the government had satisfactorily demonstrated that other investigative techniques were inadequate. See also Biasucci, 786 F.2d at 511 (affidavit sufficient because it showed that some confidential sources refused to testify, the undercover agent was not permitted to be present at alleged loansharking transaction and at meetings at the defendants' business premises, interviews with victims were not feasible, search warrants and grand juries were not expected to produce significant evidence, and prior victims would be unlikely to testify for fear of reprisals); Torres, 751 F.2d at 877 (affidavit sufficient because it showed that FBI had reason to believe that the people involved in the bomb construction operation, fearing that they might be bugged, played the radio loudly when they were speaking to one another, spoke in code, and built the bombs in silence).
In the instant case, the affidavit stated that execution of a search warrant was unlikely to succeed because it would reveal the facts of the investigation to the targets. A. 55. The affidavit noted that the probable cause affidavit would have to be attached to the warrant when it was executed and that this would cause the targets to take defensive measures, which would impede the progress of the investigation. A. 55. The affidavit also stated that since organizations such as the one involved in this case are highly suspicious of unfamiliar persons, the use of another confidential informant would not have been fruitful. A. 56. The affidavit stated that the confidential informant who had been used previously, as well as physical surveillance and the gathering of law enforcement intelligence information, had been utilized to the fullest extent possible and that any further use of such techniques might result in discovery. A. 59. The affidavit noted that the organization transacted its business in private and via cellular phones, making it difficult to investigate the organization and learn the identities of upper echelon figures. A. 57-60. The affidavit noted that the informant had said that some type of electronic detection equipment might have been installed to alert the targets to surveillance attempts. A. 58. Finally, the affidavit stated:
Video surveillance is being requested in order to further assist in identifying those subjects involved in this alleged criminal activity. As enumerated within this affidavit, there have been occasions where numerous persons have been observed within the building at one time. Video surveillance will enable investigators to identify those subjects intercepted, rather than attempting identification through less exact means such as voice exemplars. In addition, video surveillance will disclose any ...