SCOTT v. UNITED STATES

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Argument of John A. Shorter

Chief Justice Warren E. Burger: We hear arguments next in Scott against the United States.

Mr. Shorter, I think you may proceed when you are ready.

Mr. John A. Shorter: Thank you.

Mr. Chief Justice may it please the court.

The minimization provision of title three and on Omnibus Crime Control and Safe Streets Act 1968 provides that every order and extension thereof authorizing an electronic surveillance shall contain the provision that the authorization to intercept shall be conducted in such a way as to minimize the interception of communication not otherwise subject to interception under this Chapter.

Chief Justice Warren E. Burger: I think the court requested counsel to address the problem of standing, is that correct?

Mr. John A. Shorter: Yes there are three questions really before the court in this appeal.

First one, is the meaning and interpretation and and construction of the minimization provision of Federal Wiretap statute.

We feel that specifically question is whether the court below determined the correct standard and properly applied to conduct of the wiretap in this case.

Related questions also implicated, one is as the scope of the remedy to be applied in the event of a violation of minimization requirement and that is whether full or partial suppression of the fruits of the wiretap to be mandated and thirdly whether the petition has got standing to assert the violation.

The standing question that relates only to the petition of Scott within the framework of the facts of this case.

There is a related petition for writ of cert also arising from the Circuit court of opinion in this case and that is the petition for Chloe V. Daviage and of course per situation on the question of standing is same as that of the petition of Scott.

Question of standing was fully briefed in this Miss Daviage's petition in her brief as amicus and we of course have fully researched in brief, the point of standing in our brief.

I would say that in suffice standing, we think that the question was adequately and correctly answered by the DC Circuit Court of Appeals in the Balosi (ph) case which was also an appeal from a wiretap ruling of the District Court and similarly in the earlier opinion of the Court of Appeals in this case referred to as Scott 1, the direct appeal in this case is from what is referred to through out the briefs of the parties as Scott 2 but in Scott 1 the Circuit court fully addressed the question standing and it determined that under the Court’s interpretation of the related provisions of Title 3, the petitioner Scott clearly had standing to assert the violation of the minimization requirement.

We feel that was the correct analysis of the court’s analysis of the question was a correct one and certainly the court’s conclusion of we feel was amply justified by the language of the statue which identifies a grieved person whose as one whose conversations are intercepted over the Wiretap and secondly one against whom the interception is directed, on both questions, on both points the petitioner Scott qualifies.

The petitioner Scott was identified in the application for the wiretap, that is the affidavit of The Bureau of Narcotics and Dangerous Drug agent who applied for the wiretap as being one of the principal targets.

Though the order that was entered by the court in response to this application did not identify Scott particularly as one of the subjects.

The order said that the targets of the investigation that the wiretap was authorized to intercept the conversation of Bernis Thurmon, Alfonso Lee and others, and of course, for one to determine who the others might be and so far as what the record would show at that point, there were nine persons identified in the application, it being the principal offender.

Scott was certainly a principal target of the investigation.

Chief Justice Warren E. Burger: Perhaps you are coming to this but let me put it to you know once it is determined from listening that approximately one third of the calls relate to not narcotics traffic, does not that have some -- give some impetus to continuing surveillance.

Mr. John A. Shorter: The entire question of minimization is a very difficult one, it cannot be resolved we feel by reference to percentages of narcotic related call.

Chief Justice Warren E. Burger: Why not?

Mr. John A. Shorter: Not the question of minimization.

Chief Justice Warren E. Burger: One third of the conversations relate to illegal traffic in narcotics, how can it not bear on the continued surveillance.

Mr. John A. Shorter: We feel that the question of minimization is related to a number of factors, the least one of which we would urge would be the percentage of narcotic related calls.

For instance, it would seriously relate to who it is who might use the phone, whether or not that has been developed over the course of the Wiretap, a pattern of clearly innocent calls between certain people who talk on the phone and--

Chief Justice Warren E. Burger: Well do you say that the percentages are not important, but what percentage of the total calls here do you regard as unrelated to narcotics?

Mr. John A. Shorter: We did not undertake an identification in the district court or in the Court of Appeals, a percentile breakdown.

Chief Justice Warren E. Burger: Do you challenge the government's analysis of it?

Mr. John A. Shorter: What we relied on was the testimony of the agent who supervised the Wiretap that the perception of the agents who were listening to the wiretap and the reports that were made to him and reports that he in turn forwarded to the Attorney in charge of the Wiretap that roughly 40% of the calls were narcotic related, this was his testimony.

The motion to suppress hearing that was held in the District Court in April of 1971.

Judge Widey (ph) , the judge who presided at that particular hearing adopted that finding and as a matter of fact, he made it the basis of the ruling that he ultimately entered suppressing the Wiretap that though there was testimony that 40% of the calls were narcotic related, 60% of the calls were not.

There was no effort, absolutely no effort made on the part of any of the agents conducting the wiretap to minimize the interception of any telephone call.

Chief Justice Warren E. Burger: How would you go about minimizing that Mr. Shorter, once you have found that 40% were clearly narcotics related, 39% were so ambiguous they could not tell and how do you minimize from there on?

Mr. John A. Shorter: Well, when we say that some of the calls were so ambiguous that they could not be -- that you could not tell what they related to, we think that is the determination that was made by Mr. Kellogg, our adversary indicates, the agents who compiled daily records and reports of the calls that were being made over the telephone, using their own judgment, using their own instincts referring to the logs of the calls that they created at the time that the calls were made, passing the information along to Mr. Cooper, the supervising agent.

Mr. Cooper was reviewing their logs, he was reviewing their reports and as the reports were going in, some days would be three out of six calls were narcotic related, some days would be 3 out of 19 calls.

So that at the end when we totaled up the number of calls that were intercepted and incidentally all the calls on this particular telephone were intercepted over 30 day period, with no effort, with no phone call ever being not recorded and not heard by the agents.

When you got to the end of the line, there was some compilation that Mr. Cooper testified to and that was that well our conclusion was if 40% of the calls were narcotic related that was not the issue in the case.

It was not the matter of percentages although percentages were important because a majority of the calls were not related according to the judgment of the agents to the narcotic enterprise.

They were not narcotic related conversations.

Now, there were instances of calls being made over the phone which were challenged in the district court as being subject to some reasonable effort at minimization and the statute that we are talking about we submit, it creates an affirmative duty on the part of the agents to conduct the wiretap and this is the language of the statute.

To conduct the wiretap in a way as to minimize the interception of calls not related to the criminal enterprise.

And in fact that is what the statute says.

So the statute creates a responsibility on the United States Attorney or the assistant who is supervising the tap, the supervising agent and the agents who are actually doing the intercept.

But even above that it creates a responsibility.

Unknown Speaker: Mr. Shorter, the statute does not say, that you have to eliminate calls not related to criminal enterprise.

Mr. John A. Shorter: No, it says it shall minimize.

Unknown Speaker: But it does not use the words, not related to criminal enterprise, not otherwise subject interception.

And there's also a subject interception because the court order authorized it.

Mr. John A. Shorter: All calls in that subject interception.

Unknown Speaker: It all happened during the 30 day period.

Like it is a little circuit.

Mr. John A. Shorter: It seems to be that way but clearly if we are going to use as our starting point.

What this court said in Berger, and what this Court said in Katz.

We would also use our starting point the overwriting and then compelling interest of privacy that must govern any approach to questions of wiretapping.

This is an intrusion and the whole purpose of the statute is to limit the intrusion.

Unknown Speaker: Well its also to authorize the intrusion.

Mr. John A. Shorter: It authorizes an intrusion.

On a very particularized and a very limited basis and for very limited reasons.

And the reasons are to gather evidence of criminality.

That it seems to me is the purpose for which the wiretap is authorized.

The wiretap is not authorized.

Unknown Speaker: They listen for a while and they find that almost one out of every two calls has an evidence of criminality in it.

When are they supposed to stop listening?

Mr. John A. Shorter: Well it is a judgment that has to be formed by the officers who are conducting the wire tap.

First of, they must a design on a desire to follow the law.

In this case, the court found that there was no purpose on the part of the agents.

That they are intercepting every call was done willfully and was in violation of order simply because the supervising agent did not clearly instruct the agents as to what their responsibilities were.

Unknown Speaker: Yeah, as if they were not going to listen to lawyer client calls, the occupation calls and (Inaudible) calls.

Mr. John A. Shorter: Yes, once they were obviously privileged.

Unknown Speaker: What else should he have told them?

Mr. John A. Shorter: Well, he should have told them that in the instance, well, after looking at the telephone calls between Geneva Thornton and her mother that proceeded for several days.

Unknown Speaker: Some of which contained reference to criminal activity.

Mr. John A. Shorter: No, it didn't.

Unknown Speaker: Well the Government says that it did.

It said two or three of them referred to --

Mr. John A. Shorter: That is an error because the only thing the government can say about any of the conversations between Geneva Jenkins and her mother was that in one of the conversations, the second conversation, this is the mother said to Geneva, I'll call.

And she also said something about a person named Ray.

In response of question that Geneva's mother asked about Bernis Thurmon, the man whom she was living with, where is Bernis and she said that Bernis is out taking care of business.

That is the gist of what the government points to --.

Unknown Speaker: Did not she say that, we do not talk about business on the phone to --

Mr. John A. Shorter: Well that is the mother in a later conversation.

When the mother said Geneva has something very important to tell you.

This is another conversation.

This does not have anything to do with this conversation about Bernis, taking care of business which is what Geneva said to her Mother, when her mother said, well where is Bernis.

This is her common law husband.

This is just like any mother in law would say well where is your husband, when he's out, taking care of business whatever that maybe.

But that is not a narcotic related conversation and the conversation that you are now referring to was a later conversation where the mother was saying to Geneva, there is something important that I want to say to you.

All the conversations are deeply personal.

This is a mother talking to her daughter, urging her daughter to leave the man that she's living with, bring you close and as a conversation go on they become, the personal nature of them is quite obvious.

The mother says to Geneva, there is something I want to talk to you about.

Now who knows what it is about.

I would submit that was something personal.

And Geneva said, well what is it.

The mother said, well it is something about business and I do not want to talk about business over telephone.

Agent Cooper during the first hearing admitted that the agents had no reason to believe, no suspicion that the mother was involved in any narcotics related activity.

Well, this was clearly what it obviously was a mother talking to her daughter, having battering types of conversations about family matters and other personal matters.

Later, in the hearing that took place a couple of years later, after the Court of Appeals had reversed Judge Widey for the first time.

His testimony took a slightly different view, and that was that after reading the transcript of the seven Geneva-Mother telephone calls, he believes that there was a basis for a suspicion that the mother knew something about the narcotic enterprise, which I would submit is not a basis to intercept conversations between even a person accused of crime, the mother, which is what it amounted to.

There was a call that Geneva made to the abortion clinic, or I believe it was an abortion clinic.

The agents justified intercepting that call because they did not know who she was going to talk to when she called there.

It did not occur to them perhaps that this might be a strictly confidential personal medical matter but they intercepted the call and they justified it on the grounds, that well she might have been calling over there, making some inquiry about some narcotics.

The pattern of the calls in this transcript were Geneva Jenkins did not call people about narcotics, to place orders for narcotics or solicit customers for narcotics, she received calls that were made to the phone for her husband, that was the pattern.

The clear pattern in this case, after examining the transcripts was that there were certain periods during the day, particularly at night, I believe from midnight until 6 in the morning, when I think there were over the 30 day period, there might have been an average of maybe one call per day from those particular hours and the question was put to the officers.

Well, did you not consider cutting off the wiretap, minimizing the intrusion at least during the night time period, and it never occurred to them.

Another thing that was pointed out, every call that was made from that phone, whether it be for time, whether Mr. Thurmon wanted to know what time of the day it was, what the weather was.

These calls were without any qualification totally intercepted.

Unknown Speaker: Because its almost impossible to minimize a call for the weather because by that time you finished getting the reports, it would take you that long to hold the plug out.

Mr. John A. Shorter: No it isn't, no.

Thats not correct.

Chief Justice Warren E. Burger: Well Mr. Shorter, you must be aware that there have been cases where conversations, innocent on their surface were conversations in code related to illegal activities.

That is a familiar phenomenon in this business, is it not?

Mr. John A. Shorter: Right and there came a time and they also testified to it where after listening to the calls between Bernis and some of the other alleged co-conspirators, they got to know the code that these individuals were using fairly well.

Like one of the guys would always call and say, well put me on 3rd St. or put me on 4th St. Meet me on 5th St. He has always used a numerical reference to a street.

He was not raising for any meeting at 5th St. he was telling Bernis that he wanted 5 units of narcotics.

Well, this was commonly known to the agents.

Chief Justice Warren E. Burger: Yes, but new codes are constantly evolving, are they not and it takes a quite a bit of listening before they can identify a pattern.

Mr. John A. Shorter: Right, I would agree that that is so but these people using this telephone were wedded to their endemic language.

Most of the agents in this case has participated in an earlier wiretap that had occurred in the District of Columbia during the the summer, the proceeding summer.

So they were familiar with street language in the District of Columbia.

They were also familiar by reason of having tapped to telephone involving some Spanish speaking people, within the year proceeding --utilized in this tab that what the codes were.

There was no problem about identifying the language and the codes that were used by the people in this case and that of course is not what argument about minimization deals with.

We say this that when a person became identified as an alleged co-conspirators, and first of all we have to remember of the scope of the operation that this wire tap reveal despite what was set forth in the affidavit, the operation in this case was a retail distribution set up and when I say a retail, it was purely a local distribution by one person and two lieutenants, small units of narcotics, people who would either resell or use them.

In this case it became very questionable because some of the people who were ultimately charged were drug users and they bought in small amounts.

That was the scope of the enterprise in this case.

And after a period of time, the same people were calling day in and day out ordering small quantities of narcotics.

The government had every justification in intercepting calls between the people who were identified as ordering narcotics over the telephone and there were justified in intercepting the conversations of new people until such time as they would get some understanding of what these people might be calling about.

What we complain about, its clearly set forth, that in the management of this wire tap the supervision was not precise, it was not correct, though there were --

Justice Thurgood Marshall: It was inefficient, the supervision was inefficient?

Mr. John A. Shorter: The supervision was inefficient.

Justice Thurgood Marshall: Is that enough?

Mr. John A. Shorter: No that is not enough.

Unknown Speaker: But what else do you have?

Mr. John A. Shorter: Well, what you have is that not only was the supervision inefficient but the activities of the agent was not self correcting in terms of that inefficiency.

The agents just ran and open wiretap in this case.

They seized every conversations without regard to the minimization requirement.

Every conversation except, for when the wiretap was broken or it was attached to the wrong telephone.

Their instructions about lawyer clients conversation was this.

This is what Agent Cooper supervisor said, if there is a conversation between an attorney and the lawyer calls there, somebody at that phone calls the lawyer, listen to the conversation and learn whether they are talking about a pending case.

Listen to the conversation, then report the conversation to Mr. Sullivan who was a supervising attorney, then Mr. Sullivan would decide what to do next, and it goes very fuzzy then.

Fortunately there were no attorney conversations intercepted over this telephone.

But the conversation to the abortion clinic was intercepted, telephone call from the bank to Mr. Thurmon was intercepted.

Calls relating to the time, the weather and to return to the questions it was asked me about --

Unknown Speaker: (Inaudible)

Mr. John A. Shorter: It conceivably did not hurt anyone, it was only indicative, it did not hurt anyone, it was only indicative of the fact that the agents decided to just intercept all the telephone.

Unknown Speaker: But the agent Lee did not test one--

Mr. John A. Shorter: But the realization was, and this was sensed by the agents that perhaps they should have exercised some caution, they should have implemented some plan of minimization because when they were asked as why they seized the conversations about the weather and time and whatever, the officer's answer was, well, we listened to the conversation because we were afraid that right at the end of the conversation they would doubt someone else and they would start a narcotics conversation.

That was their justification, not that well these conversations do not hurt anyone.

They offered another reason which was totally false.

Unknown Speaker: You think that is a reasonable explanation Mr. Shorter?

Mr. John A. Shorter: Not when you have a pin registered device.

They had a touch tone decoder that at the time that the telephone number was dialed, as soon as did the touch tone, at every plunk of every number that the caller makes the number flashes on a board that is sitting right before the person who is running the intercept.

He can see TI port 2525.

Unknown Speaker: What I am getting out is this Mr. Shorter, is it not also a pattern in the cases of this kind over the years, that the first five, seven or 10 minutes of the conversation is about the weather or cooking recipes or going fishing and then it turns to discussion of narcotics orders either in coded terms or in open terms.

Is that not a common pattern?

Mr. John A. Shorter: In the management of some voice chats, yes.

Unknown Speaker: And must not the agent on that wiretap taken into account that while they are talking about the weather or something else that if you listened long enough they will be moving to the main topic of the narcotics business.

Mr. John A. Shorter: Yes.

This frequently happens but we are speaking about a mandated part of a statute that requires minimization.

What does minimization mean.

It does not mean that the agents cannot intercept telephone calls, it doesn't mean that at all.

It does not mean that agents must eliminate certain calls.

It means that the agents have to be responsive to the invasion of privacy that is taking place and fashion in good faith.

That is the key here, fashion in good faith.

Some approach to the wiretapping, that is going to take place.

It is incumbent upon the supervising agent, the supervising attorney and the agents to formulate some plan as to how the wiretap is going to be managed.

Their illustrations throughout the cases, that show that agents and officers, supervising attorneys were sensitive to the invasion, the intrusion that is going to take place do in good faith, fashion such plans.

And the plan that it consists of something more that if a lawyer gets on the phone, listened to his conversation and report it and it consists of something more than saying, well if an attorney, I mean, if there's a doctor-patient conversation do not record that off the priest calls and the caller wants to make a confession over the telephone, do not record that.

I am speaking about something that is more practical, more meaningful, something more workable than just that kind of a direction to the agent.

The law requires it and the law requires that the government agents, formulate some reasonable approach to the wiretapping that they were about to do.

And that means in this particular case, some analysis and early analysis of the telephone calls between Geneva and her mother.

And particularly other phone calls between Geneva and people that you were talking.

There is an instance where she had a conversation with I believe is the woman called Gloria's mother, clearly a very banal conversation.

But the transcript of this case reflects that when Agent Cooper was asked about whether any thought was given to minimizing, that is reducing the interception of the calls between Geneva and her mother.

His answer was well, he was asked to articulate it in terms of the guidelines, this attorney client guideline, he said, well the guidelines that we receive and as we apply them to the case, did not have anything to do with frivolous conversations.

It dealt with the attorney client conversation.

So his answer in effect was that, whatever Geneva and her mother were talking about that was frivolous.

So, it is alright if we intercept that.

Our guidelines concerned itself with attorney client relationships, doctor-patient and that kind of conversation.

Chief Justice Warren E. Burger: Your time is up Mr. Shorter.

Mr. Allen.

Argument of Richard A. Allen

Mr. Richard A. Allen: Chief Justice and may it please the court.

Mr. Shorter today is engaged in the discussion of the ticket or interceptions in this case that has not reflected in either of the briefs in the case.

But in any event, Mr. Shorter has suggested, it seemed to me in his argument, a standard of what the government should have done to reflect exactly what the government did in this case.

As I understood his argument.

He said that when you have a converse, when you are listening to a conversation which involves a known party to the conspiracy, the government has reason to listen to it.

And he went on to say and by the way would emphasize the record in this case reflects that every conversation that was intercepted, one of the parties to the conversation was either petitioner Thurmon or his girlfriend Geneva Jenkins who was the co-defendant in this case and now both known conspirators, participants in the conspiracy.

Mr. Shorter went on to suggest that indeed when a conversation takes place between a known participant and a stranger to the agents, it is reasonable for the agents to listen to that conversation.

Now, it seems to me that if you want to get into an analysis of each particular calls, that concession would cover about 95% of them including the calls he mentioned in his argument.

Justice Thurgood Marshall: Mr. Allen, do you agree that every call is intercepted?

Mr. Richard A. Allen: Yes Your Honor, except for a short period of time when the agents apparently in a firm they hooked up to the wrong phone and we do not know how many calls were made during that time.

Justice Thurgood Marshall: Well, does that seem to support this argument that there was no discretionary?

Mr. Richard A. Allen: No Your Honor, I believe it does not, I think all this --

Justice Thurgood Marshall: I mean, the every single call.

Mr. Richard A. Allen: That is right, but I think all it reflects is that it was reasonable to intercept every single call.

Justice Thurgood Marshall: Why?

Mr. Richard A. Allen: Well, for a number of reasons among other things, the agents at the time and after the fact that seems to be truth that 40% of the calls were clearly narcotic related --

Justice Thurgood Marshall: Well, that fact does not help me, because if you take a baseball bat and crack a man's ear and look at it and find dope, that justifies cracking the skull.

Mr. Richard A. Allen: Well Your Honor, we are not engaging in that kind of an analysis.

We are trying to decide whether it is reasonable --

Justice Thurgood Marshall: My point is the statute says use some discretion, right?

Mr. Richard A. Allen: That is correct Your Honor.

Justice Thurgood Marshall: And here they used none.

Mr. Richard A. Allen: Your Honor, here they intercepted every call.

Justice Thurgood Marshall: Well, does not that tend to say that no discretion was used?

Mr. Richard A. Allen: No, Mr. Justice Marshall, I do not think it does, there is a fundamental logical fallacy in that conclusion which is one that the District Court engaged in.

In other words, consider the simplest case where all they have intercepted is one call and it is a clearly narcotics related call.

Now, would you say in that case that that evidence, the agent has not used any discretion.

Justice Thurgood Marshall: It is nothing to do with my question.

It is the one call here --

Mr. Richard A. Allen: There are 384 calls, all of which --

Justice Thurgood Marshall: That is right, it is lot different from one --

Mr. Richard A. Allen: All of which in our analysis indicates.

Justice Thurgood Marshall: All of which had do dope.

Mr. Richard A. Allen: No Your Honor, not all of which had to do with Dope, but all of which were reasonably intercepted on the anticipation that they might have something do to with those.

With the reason --

Unknown Speaker: So, the other one would be a frame up or something?

Mr. Richard A. Allen: Well, the weather calls stand by themselves and I understand there were very few of those, perhaps five or six, they were perhaps 20 calls to find out what time it was which is about a five minute call and the agent has barely time to turn off the machine.

The weather calls are again, very short calls and the agents, it is our position that the agents were not unreasonable in concluding that listening to a very short weather call where by the time you head off your headphones and turn off the machine, the call is going to be over, the agents that seems to us are reasonable in concluding that when they want --

Justice Thurgood Marshall: Is there anything in my question about taking off anything, my question involved is hitting the switch.

Mr. Richard A. Allen: Well, it's more – to even turning off the recorder by the time, by the time they reach over to turn off the recorder to call us --

Justice Thurgood Marshall: Well, why in the world did they put this provision in the statute?

Mr. Richard A. Allen: They put the provision in the statute and we have gone for a moment, literally the importance of the privilege.

They put the provision in the statute to accommodate during important individual interest and privacy.

Listening to a recorded weather call that anyone can listen to simply does not infringe upon anyone's privacy Your Honor.

Justice Thurgood Marshall: But why did not the statute say that?

The statute does not say that does it.

Mr. Richard A. Allen: Well, the statute did not purport to enumerate all of the infinite circumstances in which -- the infinite kinds of call which an agent might --

Justice Thurgood Marshall: Do you think we should?

Mr. Richard A. Allen: No Your Honor, I think we have to look in and see whether conduct of the agents was reasonable and whether it violated the kinds of things the statute was designed to --

Justice Thurgood Marshall: Well, do you think that where you turn this is voice on, 24 hours a day for 30 days, if that is okay.

Mr. Richard A. Allen: It is okay Your Honor, if all of the calls that came through when they were listening to, they had reasonable grounds to listening to.

Chief Justice Warren E. Burger: You tell us that every call intercepted involved on one end of the line, one or the other of the two defendants in the case.

Mr. Richard A. Allen: That is correct, one of the -- either Bernis Thurmon who is the petitioner or his girlfriend who is a co-defendant was --

Unknown Speaker: Would they are used to having you tap somebody's phone that you most of the time (Inaudible)

Mr. Richard A. Allen: That is correct Your Honor and in cases where you hear him, it is – you have greater reason to listen to his conversation or some greater portion of it, than you do when you listen to as a ten year old daughter.

Chief Justice Warren E. Burger: Yet in the case that we heard a several years ago, the evidence showed that there were numerous calls to the tapped number where the person answering the phone was not the person residing in that place, but someone else there taking orders of narcotics.

Justice Thurgood Marshall: That case was the Mayer's wife in Chicago.

Mr. Richard A. Allen: I do not recall the case right offhand but --

Chief Justice Warren E. Burger: That one, it is a business enterprise as in the narcotics business is, that would not be unusual to have some relief.

Mr. Richard A. Allen: Well, that's correct Your Honor and that is one --

Unknown Speaker: It is answering the phone to take orders.

Mr. Richard A. Allen: That is right, that seems to us that that is something an agent can reasonably take in to account, but in any event, in this case, the agents from the beginning knew that petitioner Thurmon was the target of the tap and after a few days they knew that his girlfriend was taking orders on phone.

The principal issue in this case as we have been discussing is whether the agents violated the minimization requirements in Judge Smith's orders.

Now, as I understand petitioner's arguments, the argument is essentially as follows that the minimization requirement of the statute imposes a two pronged test, both of which must be met for any interception is lawful.

The first prong is according to the petitioners that the agents engaged in what they call good-faith efforts at minimization and the second prong is that the interceptions be objectively reasonable.

Although they also assert that the interceptions in this case were not objectively reasonable, they have relied almost exclusively on the argument that there were no good-faith efforts in this case to minimize.

Our response to their argument about good faith efforts is two-fold, we have two independent responses.

Our first position is a legal position, that the alleged good-faith or the lack of good-faith, subjected good-faith of the agents conducting an interception is not a determining factor in deciding whether they have complied with a statute and the minimization orders.

Our second position is a factual position and that is that the record in this case simply does not support the claim that the agents in this case had bad faith or subjectively intended to violate the provisions of Judge Smith's orders including the minimization provision.

Now, the first issue which is legal issue has importance beyond the facts of this case and should be discussed first if not principally.

Legal question as I suggested to Mr. Justice Marshall, seems to us can best be put in focus by considering the simplest case.

You have agents who obtain a court order to intercept conversations based on probable cause, the John Smith, the owner of the telephone, the subscriber to the telephone is engaging in his narcotics business over that telephone and they obtain a court order not the court order provides pursuant to the statute that the interception should be conducted in such a way as to minimize the interception of conversations not otherwise subject of the statute.

The order said is for five days and during that period there is one call that comes over the phone and that is a call from John Smith and he starts right off talking about his narcotics business and they listen to it and they intercept.

Now, suppose later on there is a suppression hearing and agent testifies that his supervisor instructed him to listen to everything that came over the line.

Now, as I understand the petitioner's position, they would contend that the interception of that call which we would submit is clearly reasonable, is nevertheless unlawful because the agent who intercepted it would probably have intercepted some other call that was never made in different circumstances.

Now, it is our position, that is our central position that there is simply no basis in the statute or in general principles of search and seizure law for that position.

We can not see any basis for arguing that that agent in my example failed in the words of the statute, “To minimize the interception of communications not otherwise subject to interception.

Unknown Speaker: But Mr. Allen, supposing the judge's order had left out any command to minimize and said, go ahead and intercept everything and then they would intercept it one a bit proper, would that have been a proper way?

Mr. Richard A. Allen: No Your Honor, I do not think it would because the statute provides as one of the ground for suppression, the allegation that the order is defective on its face and in your hypothetical the order would be defective on its face.

In other words, the interception that resulted from that order would have resulted from an effect --

Unknown Speaker: Can you give me an example of a violation of minimization order written in the words of the statute that would result in suppression?

Mr. Richard A. Allen: Yes, suppose for instance, the agents have an order to investigate my John Smith example, and he is out one night and he has a twelve year babysitter and she makes a call to her boyfriend and the agents have no reason to believe that she has anything to do or any knowledge with the operation, but nevertheless (Inaudible) by happen stance, the babysitter says, “Well, you know my boss Mr. Smith left some narcotics over here.”

We would admit that in that circumstance, it was unreasonable for the agent to listen to the conversation and the evidence that happened to develop from it ought to be suppressed.

Chief Justice Warren E. Burger: In other words, you are applying a sort of probable cause test that when the babysitter is calling her boyfriend, there is no probable cause of quotation marks to believe that they are going to talk about narcotics, is that it something like that?

Mr. Richard A. Allen: Well, I would not put the word, I would not put that label problem was cause --

Chief Justice Warren E. Burger: We put in quotation marks.

Mr. Richard A. Allen: Well, I would prefer to use the word, they had no reasonable expectation that their interception would be relevant or the conversation would be relevant.

As I say our position is fundamentally that good-faith and lack of good-faith can not be relevant consideration, it is true under the statute and it is true as a general matter of Fourth Amendment law.

Justice Thurgood Marshall: Well, suppose a twelve year old had called an abortion clinic and before you answer that, you know this is what we did, there is a little over that.

Mr. Richard A. Allen: If a twelve year old in my example had called an abortion clinic, the agent would have improperly intercepted it.

If Geneva Jenkins who is a co-defendant and a participant in the conspiracy had made a call to some organization that had never come up in the tap before, I suggest that it is not unreasonable for the agents to listen to her short conversation.

Justice Thurgood Marshall: Well, why cannot the statute say that if you found the proper papers, you can get a tap on any person's wire, --.

Mr. Richard A. Allen: If the statute said that I think it would be unconstitutional Your Honor.

Justice Thurgood Marshall: And if they did it, would not it be equally as unconstitutional?

Mr. Richard A. Allen: No doubt about it.

Justice Thurgood Marshall: Well, is that what happened in this case?

Mr. Richard A. Allen: No Your Honor, in this case the --

Justice Thurgood Marshall: They had listened to everything, I thought you said --

Mr. Richard A. Allen: They listened to everything in circumstances that made listening to everything reasonable.

Justice Thurgood Marshall: But they have listened to everything.

Mr. Richard A. Allen: That is correct Your Honor and circumstances that made it reasonable.

Justice Thurgood Marshall: The circumstance was that whether they were the guilty people.

Mr. Richard A. Allen: Pardon me.

Justice Thurgood Marshall: They were the guilty people, is that the reason?

Mr. Richard A. Allen: No, no Your Honor, the guilty reason – the reason was that the conversations they were listening to were either narcotics related, but they were always by somebody who was involved in the conspiracy and they were either narcotics related, there they were sufficiently ambiguous to give the agent summaries and let me give you an example.

Agent Cooper who was the primary witness in the suppression hearing, testified that he conducted this interception on the same basis that he conducted another interception recently, and he said that for instance, in that interception we had a case where two people, a woman who is talking over the phone would always call her friend and when she called a particular friend, she would always talk about her illness.

Well, after a time or two of that, we stopped intercepting that kind of conversation, I mean we had developed he reason to believe that the interception of that conversation would not help our investigation.

Seems to me that that is the reasonable way to go about it.

Unknown Speaker: The agent says, (Inaudible) and we have been listening to that and it was not the lawyer, it was the (Inaudible).

Mr. Richard A. Allen: No Your Honor, I do not think in this --

Justice Thurgood Marshall: (Inaudible)

Mr. Richard A. Allen: In this case it was clear that one thing they were going to listen to calls to lawyer.

Justice Thurgood Marshall: They did not judge that.

Mr. Richard A. Allen: Pardon me.

Justice Thurgood Marshall: They did not judge anything at that point.

They have got the order, (Inaudible).

Do you think, that they are going to hear everything, would they be listening to every conversation?

Mr. Richard A. Allen: They told the judge implicitly, they told the judge when they applied to the order, that they wanted an order to intercept conversations that contained information about the narcotics conspiracy, implicitly they told the judge that they would act reasonably which in our view they did.

Unknown Speaker: Mr. Allen, let me go back to your twelve year old babysitter, would you say they should not listen to the first conversation of babysitter?

Your example of the illness by the other person and listen two or three kinds and decided that had done it by the pattern.

Mr. Richard A. Allen: Well, that would depend on the circumstances, the thing for me the first as a general presumption, it seems to me that it conversation between a twelve year old babysitter and her thirteen year old boyfriend, it seems to me although their maybe circumstances to the contrary that that kind of conversation is not going to be relevant.

Unknown Speaker: Maybe they have a twelve year old answer the phone and they develop a pattern, I mean the twelve year answer the phone, talk to her couple of minutes and then turn the phone over to the parents who are going to talk about drugs and how are you going to avoid that sort of thing if you say that as soon as we hear a minute of juvenile conversation, we turn it off.

Mr. Richard A. Allen: Well, it would depend on the circumstances I think, in some circumstances it maybe reasonable to listen to a juvenile's conversation.

Unknown Speaker: What about a 32 year old babysitter.

Mr. Richard A. Allen: The 32 year old babysitter in this case was a participant in the conspiracy.

Justice Thurgood Marshall: No, I mean in the case you are talking about.

Mr. Richard A. Allen: Oh, a 32 year old babysitter, well, it would depend if you knew it was babysitter, you knew she had nothing to do or no knowledge of the conspiracy, then probably you ought to turn it off, or there maybe circumstances in which you can listen to it.

Justice Thurgood Marshall: One more, you convince me that this should not have put that in statute --

Mr. Richard A. Allen: The minimization --

Justice Thurgood Marshall: (Voice Overlap)

Mr. Richard A. Allen: The minimization requirement.

Justice Thurgood Marshall: But the trouble is that Congress did put it --

Mr. Richard A. Allen: Well, some of the judges on the Court of Appeals and the Mr. Justice Brennen and Mr. Justice Marshall have expressed concern that if our position concerning that the proper standards should be objective reasonableness were adopted.

There would be a danger that interceptions would then be validated by what they turn up.

We submit that there is -- that that concern is certainly understandable, but that it does not accurately reflect our position or the analysis the Court of Appeals engaged in this case.

It does not reflect our position because as I was stating to Mr. Justice Stevens, our position is simply that the reasonableness of interceptions has to be based on what is going on at that time and that if it is unreasonable for an agent to listen to conversations in view of what he is – although the inputs, sensory inputs on him, then if by chance, it turns up evidence is our position that that evidence should be suppressed and that essentially is the analysis of the Court of Appeals engaged in this case.

Essentially, it is no different than any analysis where the courts try to decide for example, whether a policeman was justified in arresting someone or stopping and frisking someone on the basis of circumstances at that time.

Even though, that person may wind up to have a contraband or weapons on.

Apart from our legal position --

Chief Justice Warren E. Burger: As to stand you are going to rely on your brief.

Mr. Richard A. Allen: Essentially Your Honor we were relying on our brief as to standing unless the court has any questions about it.

Apart from our legal position, our factual response to the petitioner's claim about lack of good-faith efforts is that the record simply does not support the claim of the agents here acted in bad-faith or intended to ignore their minimization obligations.

We have cited in our brief the testimony of agent Cooper to the effect that he was aware of the minimization requirements that he instructed his agents with respect to them, that he never instructed his agents to listen to every call, and if they had heard the cause it appeared to be unlikely to relate to the investigation, they would have turned them him off and I would not burden the court with recitations to this transcript.

But I would only point out that the petitioner's claim to the contrary and the District Court's finding to the contrary is based on logical fallacy that it is based on testimony that does not logically support the conclusion.

For example, again to take the simple example of the case where over the period of intercept, only one conversation is intercepted and it happens to be reasonable to intercept it because it is clearly crime related.

Suppose the agent in that case at a suppression hearing had been asked repeatedly as agent Cooper was asked in this case.

Well, did you ever make any efforts to minimize the interception of conversations?

Did you ever consider your minimization obligations?

Can you point to any instance in which you exercised discretion that resulted in the non recordation as discretionary matter as to what was overheard.

If the agent in my example had given negative answers to that question, that would not reflect that was operating in bad faith, it would only reflect that he intercepted the only call that came over the line.

And that is essentially the basis for the petitioner's claim on bad faith and the basis for the District Court's analysis.

If the court accepts our position that the proper standard is objective reasonableness, the question remains whether the interceptions in this case were objectively reasonable and in their briefs the petitioners do not seriously challenge the Court of Appeals conclusion that it was objectively reasonable to intercept all of the calls in this case.

And they do not point at least in their briefs to any calls that should not have been intercepted or any reasons as to why they should not have been intercepted.

But the court may be interested in the question more generally of general considerations that apply to determining whether interceptions are reasonable or not reasonable and at the outset I want to stress again that it is not our intent to validly importance of the statutory minimization requirements.

We recognize that they are designed to serve and accommodate important individual interest in privacy.

But how those interests can best be implemented in each particular case often poses some very difficult problems.

Now the Court of Appeals started with a proposition that seems clearly correct to us, that the very nature of interceptions that are authorized and limited by the statute requires monitoring agents to listen to at least some portion of every call before they can make any judgment as to the likelihood that the call is going to be relevant or irrelevant.

Now how much of the call may then be reasonably intercepted depends on a wide variety of circumstances including what the agents know about the callers, the scope of the criminal enterprise, the degree of coded language employed in the call and so forth.

And many of those considerations can be applied only after the agents have been able to develop some patterns among the calls.

The court of appeals have developed a number of relevant factors including those I have just mentioned but it would be impossible to enumerate an exhaustive list.

In some kinds of cases, it may be possible for agents to develop more or less formal procedures or guidelines with respect to how they are going to go about and intercept.

For example, in a gambling case, if they have reasonably if the John Smith is conducting his gambling business from a certain telephone, from his residential phone but has three small children or three teenaged children, it may be possible for the agents to develop guidelines and say do not listen to the calls of the children but listen to the calls of John Smith because in a gambling case, most of those kinds of calls are simply calls where the caller calls in and places a bet, right off the bat, they go right in the business.

In other kinds of cases like narcotics and especially particular like narcotics conspiracies where there many unknown participants and where one caller a always a known participant.

It is much more difficult for the agents to establish guidelines and they may have to rely on an ad hoc judgments about the nature of the calls they are listening to.

And this case, I think reflects that narcotics conspiracies present some unique difficulties to agents conducting interceptions under the statute.

In narcotics conspiracies at least like this case it is very typical that the beginning portion of the conversation is largely ambiguous or irrelevant and then the participants may refer to a pseudo cause which means a delivery of narcotics.

So it is much more difficult in this kind of case for agents to decide with any great degree of certainty, what kind of conversation they are listening to or to apply any formal procedures with respect to when to turn them off.

With respect to the additional issues in this case concerning the scope of the suppression remedy and the standing of petitioner Scott we rely primarily on the arguments we've addressed in the brief.

I would only emphasize our response to the petitioner's argument that if as we contend, the statute only requires a suppression of conversations that should not have been intercepted because they are irrelevant.

Then agents will not be deterred -- they will not be deterred from listening to every conversation.

That argument seems to us to misconceive the traditional purpose of the exclusionary rule which is not to punish police but rather to remove their incentives to commit unlawful acts.

Our position is fully consistent with that traditional purpose.

Any interception that should not have been intercepted should be suppressed thereby removing the agent's incentive to intercept communications and violation of minimization requirements.

But beyond that there is even less reason in this context or a need in this context to expand the suppression remedy because this statute unlike the Fourth Amendment context imposes significant, affirmative sanctions on officers who violate their statutory obligations in bad faith, civil and criminal sanctions.

Unknown Speaker: Plus there is a way to read this statute Mr. Allen, a question while ago by my brother Stevens indicated that would make it both semantically meaningless as well as practically meaningless because the statute says -- imposes an obligation to conduct the surveillance in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter and all the communications are otherwise subject to interception under this chapter under the court order.

Mr. Richard A. Allen: Arguably Your Honor although the statute, specifically exempts I believe privileged conversation.

Unknown Speaker: Yeah everything except evidentiary privileged conversation.

Mr. Richard A. Allen: That is a possible way to read the statute Your Honor.

Unknown Speaker: No, in fact, dramatically that is the way to read it.

Mr. Richard A. Allen: That is correct.

We would not rely on that reading.

It seems to us that the purpose of the statute read as a whole is to authorize only certain kinds of interceptions of certain kinds of conversations and that was probably what the minimization provision we are referring to.

That is if you receive an authorization to intercept to obtain narcotics conversations, it seems to us the statute probably meant that you were not supposed to receive to intercept or you are supposed to make reasonable efforts to minimize the interception of non relevant conversations.

Unknown Speaker: Mr. Allen, do you rely at all on an argument.

I do not know if it is permitted or not that you are investigating people who are going to be potential defendants in a criminal trial, presumably they make him up with some kind of an alibi, or they may come up with stories that would try to explain ambiguous transactions that even though a particular conversation is not crime related may give you information in the nature of a diary or something about the trial that would help you at the trial.

Mr. Richard A. Allen: We would contend Your Honor that the authorization under a court order extends to the interception of communications for the purpose of developing evidence relevant to the investigation.

Unknown Speaker: Including impeaching evidents, potentially impeaching evidents.

Mr. Richard A. Allen: Should think so Your Honor although I want to think about that a little longer.

Unknown Speaker: Foreseeing a possible defense at a criminal trial such as in alibi if he says I was vesting -- my mother at 2 o' clock through the afternoon, you could say well as a matter of fact, you were on the telephone talking to your butcher.

Mr. Richard A. Allen: In certain circumstances that might be reasonable although I would not want to take it too far because if you took that too far you could intercept everything.

Unknown Speaker: Exactly.

You generally do not know what a person is going to say by way of alibi, until the trial begins.

Mr. Richard A. Allen: Well, that is right.

But we would not contend that the statute should be construed to let us intercept everything for any reason, only for reasonable reasons.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.