United States of America, Appellant, v. Gordon Vincent Eastman and Anthony Hueston*a/k/a Tony Heston, A/k/a Tony Dejest.nos. 71-1643, 71-1644, 465 F.2d 1057 (3d Cir. 1971)

This case presents unusual circumstances as will appear hereinafter. It arises under Criminal Procedure, Eavesdropping Warrants, Chapter 546, Sec. 814, et seq., McKinney's 1968 Session Laws of New York, 191st Session, and the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20.

The appeals at bar arise from the same criminal proceedings in the Middle District of Pennsylvania. Hueston and Eastman were indicted for unlawful manufacture of drugs in violation of 21 U.S.C. § 331(q) (1)¹  and 18 U.S.C. § 2. Prior to trial, Hueston, but not Eastman,²  filed a motion to suppress the contents of intercepted telephone communications and all evidence derived therefrom. Hueston's motion was heard on May 19, 1971 and the District Judge granted it.³  The United States has appealed, the District Judge having granted the certificate required by 18 U.S.C. § 3731 and Sec. 2518(10) (b). The wiretaps have been certified to this court in camera and an examination indicates that they are incriminating.

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The language of the wiretap warrant with particular regard to the period during which the warrant was to be effective was: Law officers " [a]re further commanded that such eavesdropping shall take effect on June 2, 1969, or as soon thereafter as is reasonably practicable and that such eavesdropping shall not cease after any one or more of the above described conversations shall have been overheard, but shall cease at the close of the twentieth calendar date after the above mentioned, To Wit: On June 22, 1969, or on the day thereafter which is twenty (20) calendar days after the date of actual installation, whichever last occurs and that such eavesdropping may be conducted at all hours of the day and night . . . ." (Emphasis added). The date of the warrant was June 2, 1969. Not all the wiretaps which have been received and examined in camera are within the permissible period, but in view of our decision it is not necessary to discuss this point.⁴  The statute under which Justice Hoyt issued the wiretap warrant on June 2, 1969 was Sec. 819.2, c. 546, McKinney's 1968 Session Laws of New York (repealed June 25, 1969), which provided that an eavesdropping warrant must contain: "The date of issuance, date of effect, if known, and termination date" and stated that " [t]he effective period of the warrant must not exceed twenty days. . . ."⁵  Section 823.1 of the statute provided for "written notice and return" to be served on the person whose line had been tapped " [n]ot later than sixty days after termination of the eavesdropping warrant. . . ." The first tap was installed on June 3, 1969. It follows, therefore, that the authorized period of the wiretaps ran out on June 23, 1969. There is no statement in the statute as to who shall give the required written notice to the individual whose line has been tapped. There is nothing in the record which indicates that any notice at any time was given to Hueston respecting the wiretaps. The last line of Justice Hoyt's order constituting the eavesdropping warrant states: ". . . notice to the said Tony DeJest and the said Bonnie Kerr is hereby expressly waived." (Emphasis added). Compare the language of Judge Muir's opinion hereinbefore set out at note 3, supra.

The federal statute which provides for the actual issuance of wiretaps, 18 U.S.C. § 2518(4),⁶  is set out in the margin and the record shows that all of its provisions, viz., (4) (a) to (4) (e), inclusive, were conformed to by Justice Hoyt when he issued his warrant. In short, the specifications of the federal statute have been followed insofar as subsection (4) is concerned.

We note that at page 160 of the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Electronic Surveillance, "Approved Draft 1971," it is stated: "A failure to make a correct return or to file the inventory, noted below, however, should result in the suppression of evidence only where prejudice is shown. See Evans v. United States, 242 F.2d 534 (6 Cir.), cert. denied, 353 U.S. 976, [77 S. Ct. 1059, 1 L. Ed. 2d 1137] (1957); United States v. Gross, 137 F. Supp. 244, 248 (S.D.N.Y. 1956) (return ordered in lieu of suppression)." The Government takes the position that the rule that prejudice must be shown by reason of the fact that Hueston did not receive the notice or inventory required by the New York and Federal statutes for Sec. 2518(8) (d) is an attempt to "reflect existing search warrant practice" under Rule 41(d), Fed.R.Crim.Proc., 18 U.S.C. See S.Rept. 1097, 90th Cong. 2d Sess. 105 (1968). The Government's contention is based on the fact that the record shows that Hueston was aware of the wiretaps at least by September 26, 1969 because he filed a motion in the New York State Court requesting an order of discovery and an inspection of the wiretap order and its supporting affidavit.⁷  The Government cites United States v. Haskins, 345 F.2d 111, 117 (6 Cir. 1965); Gilbert v. United States, 291 F.2d 586, 588 (9 Cir. 1961); Evans v. United States, supra at 536 of 242 F.2d. In United States v. Averell, 296 F. Supp. 1004 (E.D.N.Y. 1969), a delay in filing the warrant return and inventory of seized items for a period of two and one-half years was held not to vitiate the warrant so long as the proper notice is given prior to admission of the items in evidence.⁸  The Government goes on to assert that the failure to make a correct return or to file proper notice is a "ministerial act" and should result in suppression only where prejudice is shown, citing McGuire v. United States, 273 U.S. 95, 47 S. Ct. 259, 71 L. Ed. 556 (1927); United States v. Haskins, supra; Evans v. United States, supra; Giacolone v. United States, 13 F.2d 108 (9 Cir. 1926); Rose v. United States, 274 F. 245 (6 Cir.), cert. denied 257 U.S. 655, 42 S. Ct. 97, 66 L. Ed. 419 (1921); United States v. Callahan, 17 F.2d 937 (M.D. Pa. 1927).

We cannot agree with the Government's position for two reasons:

(1) 18 U.S.C. § 2518(10) (a) states inter alia, "Any aggrieved person in any trial . . . may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that-(i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval." (Emphasis added). As is pointed out in the admirable opinion of Judge Becker in United States v. Narducci⁹  in a closely analogous situation, an exclusionary rule has been written into the Act by Sec. 2515, which states, inter alia: "Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial . . . before any court . . . if the disclosure of that information would be in violation of this chapter." (Emphasis added). That Sec. 2515 is exclusionary is now settled beyond all doubt by Gelbard v. United States, and United States v. Egan, 408 U.S. 41, 92 S. Ct. 2357, 33 L. Ed. 2d 179 (1972).

In the case at bar we have the extraordinary circumstance of an advertence to the provisions respecting "written notice" as required by the New York Statute, Sec. 823.1 of McKinney's 1968 Session Laws of New York, and the inventory required by 18 U.S.C. § 2518(8) (d) and an express failure by the New York Justice to adhere to these provisions. We point out that the inventory requires the equivalent of notice of the New York Statute for the statute provides for "an inventory which shall include notice of-(1) the fact of the entry of the order or the application; (2) the date of the entry and the period of authorized, approved or disapproved interception, or the denial of the application; and (3) the fact that during the period wire or oral communications were or were not intercepted." The inventory must be filed within ninety days after the filing of the application for a wire tap order under Sec. 2518(7) (b) or within sixty days after the termination of the eavesdropping warrant as provided by the New York statute.

The legislative history, 1968 U.S.Code Cong. and Adm.News, at pp. 2184-85, states: "Section 2515 of the new chapter imposes an evidentiary sanction to compel compliance with the other prohibitions of the chapter. . . . The provision must, of course, be read in light of Sec. 2518(10) (a) discussed below, which defines the class entitled to make a motion to suppress. . . . The provision thus forms an integral part of the system of limitations designed to protect privacy. Along with the criminal and civil remedies, it should serve to guarantee that the standards of the new chapter will sharply curtail the unlawful interception of wire and oral communications." (Emphasis added). Thus the Congressional intent to insure compliance with the dictates of the law authorizing wiretaps by means of the exclusionary rule of Sec. 2515 is clearly evident. The relationship between Sec. 2515 and Sec. 2518(10) (a) is thus demonstrated.

In order to determine if "the disclosure of that information [i. e., the contents of the interception] would be in violation of this chapter," we look to Secs. 2511, 2517, and 2518(8) (d). Section 2511 prohibits any wilful use of an interception "except as otherwise specifically provided in this chapter." Section 2517(3), as Judge Becker points out, is an exception to Sec. 2511 and allows the disclosure of a wiretap at trial if "intercepted in accordance with the provisions of this chapter." Since the interception in this case was not in accordance with the provisions of this chapter, i. e., Sec. 2518(8) (d), as discussed above, it follows that the disclosure of the contents of the wiretap was in violation of this chapter, i. e., "a willful use of an interception under Sec. 2511 and the statutory rule would apply here." Narducci, supra, at 1117 of 341 F. Supp.

The inventory provisions of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2518(8) (d), have been construed rather broadly in this Circuit. In United States v. LaGorga, 336 F. Supp. 190 (W.D. Pa. 1971), it was held that absent a showing of prejudice filing a delayed inventory was permissible. In LaGorga there had been extensions allowed by court order extending the time for filing the inventory for a period of about six months. Judge Weis, referring to the case at bar, stated that it could be distinguished because in Eastman there had been "complete and deliberate failure to file any inventory." (Emphasis added). The touchstone of our decision on this aspect of the case at bar is not one in which an inventory was delayed but rather is one in which specific provisions of Title III were deliberately and advertently not followed. In other words the failure to file the notice or inventory is no mere ministerial act. It resulted from a judicial act which on its face deliberately flouted and denigrated the provisions of Title III designated for the protection of the public. This we cannot countenance. The communications were unlawfully intercepted. Therefore, the provisions of Sec. 2518(10) (a) (i) apply and the motion to suppress must be granted.

(2) There is another reason, however, which perhaps may be even more cogent in the disposition of this case. The Federal statute and the New York statute here sub judice under which Justice Hoyt¹⁰  issued the warrant, were we believe based in very large part upon the opinion of Mr. Justice Clark in Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967).¹¹  In Berger, Mr. Justice Clark laid great emphasis upon the constitutional safeguards required of an eavesdropping statute. In criticizing the New York statute, the predecessor to the New York statute presently before us, the Justice laid emphasis on the lack of notice required by the New York statute and made it clear that notice must be given to meet the constitutional standards of the Fourth Amendment. He stated, id., at 60, 87 S. Ct. at 1884: "Finally, the statute's procedure, necessarily because its success depends on secrecy, has no requirement for notice as do conventional warrants, nor does it overcome this defect by requiring some showing of special facts. On the contrary, it permits unconsented entry without any showing of exigent circumstances. Such a showing of exigency, in order to avoid notice, would appear more important in eavesdropping, with its inherent dangers, than that required when conventional procedures of search and seizure are utilized. Nor does the statute provide for a return on the warrant thereby leaving full discretion in the officer as to the use of seized conversations of innocent as well as guilty parties. In short, the statute's blanket grant of permission to eavesdrop is without adequate judicial supervision or protective procedures."¹² , ¹³ 

We construe the statutes, 18 U.S.C. § 2518(8) (d) and 18 U.S.C. § 2518(10) (a) (i), as requiring the exclusion of wiretaps secured in violation of their wording which implements the Fourth Amendment. The New York authorities have, therefore, proceeded in violation of Hueston's constitutional rights as guaranteed by that Amendment.¹⁴ 

On the narrow grounds stated, we conclude, as did the district court, that the wiretap evidence must be suppressed. Accordingly, the judgment will be affirmed.