DALIA v. UNITED STATES

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Argument of Andrew L. Frey

Chief Justice Warren E. Burger: We will resume arguments in Dalia against the United States.

Mr. Frey you may proceed.

Mr. Andrew L. Frey: Mr. Chief Justice and may it please the Court.

Petitioner has presented three separate grounds in support of his contention that the agents' surreptitious entry into his unoccupied business premises for the purpose of planting of listening devices that were necessary to carry out the court authorized eavesdropping was unlawful and requires suppression of the intercepted conversations.

First, although he didn’t put it first in his brief, but I think he has continued to maintain the position, he contends that such surreptitious entries are absolutely barred by the Fourth Amendment regardless of the existence of any Congressional authorization for them or the presence of any court order authorizing them.

Second, he contends that even if such entries could be carried out consistently with the Fourth Amendment, Congress has either prohibited or failed to authorize them in Title III or elsewhere.

Third, he contends that even if there is no constitutional or statutory barrier to such entries, the agents' action in this case was unlawful because of their failure to procure from the District Court an express authorization of the entries that were necessary to carry out the court’s Title III order.

Now before I begin the argument I think there is a factual background that came up slightly yesterday and there is some misconception around as to the question of the need to make trespassory entries for purposes of planting the listening devices in connection with eavesdropping orders.

There is language in Berger opinion of this court 10 years ago, which I think was still several decades before its time in terms of talking about electronic beams from outside and what we’ve called in our brief The Buck Rogers kind of equipment.

As matters stand today there are very, very few cases if any of surveillance of interior areas where that kind of equipment is useful as a practical matter.

Similarly the martini olive transmitter and so on is virtually never used in these cases because radio transmitters are not used because they are easily detected by a scanner that you can buy at RadioShack for a few dollars.

So that in the normal case when you are talking about a Title III eavesdropping order of an office or some interior area you are talking about the need for some kind of what was viewed as a trespassory entry prior to Katz.

Now in -- we’ve been advised by the FBI that in perhaps slightly fewer than 10% of the cases the Spike mic through the wall kind of approach is available and that would be normally the cases where the FBI is able to obtain control of the adjoining space, for instance if it’s a hotel room and they can rent the adjoining hotel room or an office and they can rent the adjoining office.

But in all other cases some kind of a physical entry of the agents into the premises together with a fairly extended period of time necessary because this is a wire installation, it’s not a matter of putting a radio transmitter and but of installing something and running wires out to a receiver is necessary.

Now they do use ruses in a certain proportion of the cases, but the vast majority of the cases are entries such as occurred in this case.

Justice John Paul Stevens: Mr. Frey you described what the practical situation is today. How much of that was explained to Congress during the hearings on Title III?

Mr. Andrew L. Frey: Well, we have cited in our brief about 12 to 14 illustrative instances of testimony before Congress about how surveillances were conducted and it was clear to Congress that trespassory entries of the kind that occurred in this case would be frequently necessary.

Justice John Paul Stevens: Senate report doesn’t mention that subject at all.

It does mention the cases in which the Spike Mic was used and some of the other cases where there was no entry, but there is nothing in the Senate report that I could see where they discussed anything like what you’ve just described.

You do and I’m aware of the fact that there are references in the hearings that you described.

Mr. Andrew L. Frey: Our argument, there are references in the hearings, there are references in the debates, there are references in the President’s Commission report which was relied on heavily by Congress and of course Berger itself which was a single --

Justice John Paul Stevens: Many of those references indicate that that even a majority of the cases there would be need for a surreptitious entry.

They do refer to the need on occasion, but they also cite cases which indicate that frequently it could have been done without a surreptitious entry.

So how do, as I’m just wondering what the state of knowledge of the Congress --

Mr. Andrew L. Frey: Well, I think that to some extent we must speculate about what individual members of Congress expected.

However, I will get to the point that there is evidence I think in the Senate report itself that Congress intended to allow the installation of eavesdropping devices of the kind that we have in this case.

Justice John Paul Stevens: Yes, but does it -- does that evidence in the Senate report also go to the point of surreptitious entry, that’s it?

Mr. Andrew L. Frey: Well--

Justice Thurgood Marshall: [Inaudible] what the man is going to say?

Mr. Andrew L. Frey: No, I think it’s clear, but there is talk and Mr. Ruprecht suggested yesterday that there might be many ways you might insinuate a Confederate or an informant and well that simply is not practical.

You might use a ruse, but what I’m suggesting is the kind of ruse that you need is one that gives you access to the man’s office for a couple of hours.

Justice John Paul Stevens: I understand that, but the point that interested me was that the Senate report relies very heavily on this Court’s previously decided cases, which included the use of a mic on the outside of a telephone booth and the Spike mic. Well they may not have focused on this problem is all I’m suggesting because of the emphasis on the cases from this Court?

Mr. Andrew L. Frey: Well, I think what, I don’t -- I can’t cite you at the moment any particular place in the legislative history where there is a statement that reflects Congress’s understanding of the facts as I’ve told you this morning, but I think it is clear that they knew and there is absolutely no place in the legislative history that suggests that they intended to prohibit surreptitious entries of the kind that occurred in Berger.

Let me pass for the moment the broad constitutional contention of petitioners because I think that is sufficiently insubstantial that I should get on to other more important questions in terms of the question of the existence if any is necessary of statutory authority for a surreptitious entry to install listening device.

Now I believe that on close analysis to answer to this question is fairly clear and it is as we are arguing it, but the Sixth and Ninth Circuits have concluded that there is no power in the Federal judiciary to authorize eavesdropping that entails surreptitious entry into private premises.

And these decisions of course are of grave concern to the Department of Justice.

So they have rendered it virtually impossible for the government to use the authority conferred by Title III to intercept oral communications in the effort to combat organized crimes in the State, organized crime in the States within those circuits.

Now in considering this question of statutory authority I think we should first look at Title III itself and consider three possible conclusions that might be reached about the effect of that enactment.

The first which is what I understand petitioner’s argument to be is that Title III prohibits surreptitious entries into private premises to install listening devices.

The second, which we would contend on the other side is that Title III is itself a source of authority for such entries.

The third possible conclusion is that Title III neither confers nor withdraws authority, so that the source of authority, if any, specific source is necessary must be sought elsewhere.

Now with regard to petitioner’s proposition and I think the conclusion of at least the Ninth Circuit and the Sixth Circuit did give more consideration to alternatives that Title III’s failure to contain express provisions regulating the authorization of trespassory entries to plant listening devices reflects a congressional purpose or at least a congressional accomplishment of the end of banning or withdrawing authority for such entries.

Now we submit that there is no basis for the court to impute the Congress such bizarre and self defeating action.

After all while Title III was designed in part to protect the citizenry from unconstitutional invasions of communicational privacy as well as from non governmental invasions of communicational privacy, it was indisputably also intended within constitutional limits to enable law enforcements officers to use electronic surveillance to combat organized crime.

And what was the case that Congress was studying most closely in its efforts to design a constitutionally acceptable system to enable law enforcement officers to conduct electronic surveillance, that case was Berger against New York and what was it that the officers did in Berger, that Congress we submit plainly sought to allow in future cases, they surreptitiously entered a business office to plant a listening device.

Justice Harry A. Blackmun: Mr. Frey at that point, would your argument be the same if the surreptitious entry was into a private residence as distinguished from a business office?

Mr. Andrew L. Frey: Well we would reach the same conclusion, but it is possible that the court would view the issues.

I mean we don’t deny that there is some more sensitivity in entering a private home than there is in entering a business office, although both are protected by the warrant clause of the Fourth Amendment, but I think we would ultimately come to the same position.

Now is it reasonable to conclude that Congress while on the one hand trying to legalize law enforcement eavesdropping in circumstances like the Berger case, on the other hand sub silentio concluded that surreptitious entries such as were in Berger were so offensive that they ought not to be permitted.

It is that implausible premise that petitioner asked this Court to adopt and that underlies the Sixth and Ninth Circuit decisions in Finazzo and Santora. Now I’d just come back and mention that while the legislative history is not as clear as we would like, there is no question that Congress was repeatedly told that the kind of eavesdropping in Berger and that it was studying would often or usually involve surreptitious physical entry into the premises where the conversations are to take place.

Now it nevertheless decided to authorize interceptions of oral communications without restriction as to the places where such communications could be intercepted.

And in fact we quote a statement by Senator Tydings in our brief at page 38 in which he describes a fact situation very much like Berger and he was one of the principle sponsors of the Bill and states his view that it is offensive that this mafia figure or organized crime figure who he was talking about could not be convicted and that the purpose of the Bill was to facilitate or legalize under appropriate controls the kind of entry to plant a listening device that occurred in that case.

Now petitioner stresses what he perceives to be the Congressional silence on the subject to surreptitious entries as evidenced that it did not intend to permit them for Title III searches, but Congress was not utterly silent.

The Senate report in describing what the legislation generally set out to accomplish and it stated at Page 40 of our brief said, “Legislation meaning the constitutional standard set out in the decisions,” referring to Katz and Berger, “And granting law enforcement officers the authority to tap telephone wires and,” and this is just the key language, “install electronic surveillance devices in the investigation of major crimes and upon obtaining the court order which is the purpose of Title III of S917,” and then they list the groups that have endorsed that legislation.

So while the statements don’t proliferate on the subject we take that as a clear statement of the congressional intent to authorize this.

Now we submit that Congress did not dwell --

Justice Potter Stewart: What you have read doesn’t say much more than the statute, does it?

Mr. Andrew L. Frey: Well, I don’t think the statute talks about installing--

Justice Potter Stewart: Will you read that again if you, sorry I [Inaudible] my colleagues, but --

Mr. Andrew L. Frey: The statement says that in describing the – well, I’ll just take a little bit out of order in describing what’s the major purpose of Title III.

The statement says, “Granting law enforcement officers that authority to tap telephone wires and install electronic surveillance devices in the investigation of major crimes and upon obtaining a court order.”

Justice Potter Stewart: Well, obviously if you are going to have electronic bugging, something has to be installed?

Mr. Andrew L. Frey: Well no, not as they were thinking of -- if they were thinking as has been suggested--

Justice Potter Stewart: The mic has to be installed?

Mr. Andrew L. Frey: Well, yes but the suggestion has been made in for instance in the opinion in Finazzo that often you don’t have to drop the transmitter in the martini, you use the parabolic mic from a distance, many --

Justice Potter Stewart: Putting a olive in a martini is an installation of the olive into the drink?

Mr. Andrew L. Frey: Well then I don’t think that’s the sense.

Justice Potter Stewart: In other words, install is the only word that’s the, that’s the word I think --

Mr. Andrew L. Frey: I think that’s a significant word and that’s the word that I’m calling for the Court’s attention here, yes.

Justice John Paul Stevens: Mr. Frey, but just before we leave with that, because that doesn’t mention the surreptitious entry and I was wondering in Berger itself, I know it was listening device in an office, but does the record in that case tell us whether it was just installed surreptitiously or by rules.

Mr. Andrew L. Frey: I --

Justice John Paul Stevens: You can’t tell from the opinion, right?

Mr. Andrew L. Frey: I think it was installed surreptitiously.

We’ve checked the record and I am advised that it was installed surreptitiously and that there was no separate entry or at least in the first of the two bugs in Berger and the statute of course contained no express entry provision.

Justice John Paul Stevens: Is there anything that in the legislative history that shows that Congress knew that the device had been installed surreptitiously as opposed to by rules?

Mr. Andrew L. Frey: I am not aware of anything.

Justice John Paul Stevens: You are not aware of anything.

Mr. Andrew L. Frey: Now, it’s our argument that Congress did not dwell on the subject of surreptitious entries because it simply didn’t suspect there was any serious problem.

Nothing in any prior decision of this Court had sounded any alarm on this particular subject and of course Rule 41 governing conventional searches itself says nothing about express separate entry authorization.

We think that Congress assumed that having authorized the search itself and a detailed provision satisfying what it understood the Fourth Amendment to require, it was thereby authorizing the implementation of the search by the means that were reasonably necessary to do so.

Now at this point I would like to make our position as to the statutory source of authority clear because in reading over our brief and preparing for the argument, I am afraid it may state the matter in a fashion that it’s subject to misinterpretation.

In Part 2 of our brief, we were addressing the contention of petitioner and the conclusion of the Sixth and Ninth Circuits that Title III does not itself authorize entries to plant listening devices and that accordingly such entries may not occur.

We showed convincingly I hope that if that promise was correct, the conclusion was not correct because Rule 41 provides the power to authorize trespassory entries if one must look elsewhere then Title III for such power.

Now we didn’t mean by this argument to suggest that Title III is not itself a source of authority.

We believe that it is, but we recognize that there are two ways to look at the entry that took place here.

The first which several courts have adapted is to view it as an incident of the search authorized by the Title III order, it's so viewed and we believe this is the best view of it.

Title III itself supplies the authority for the entry to carry out the search, just as Rule 41 implicitly authorizes the entry to accomplish a conventional search.

On the other hand several courts have concluded that the entry entails a wholly separate invasion of a distinct constitutionally protected interest rather than an intrusion ancillary to the electronic surveillance with which Title III is concerned.

Under that view, one could perhaps reasonably contend that Title III supplies no authority for the entry.

But that conclusion does not resolve the inquiry in petitioner’s favor, rather as we say in our brief, Rule 41 supplies the authority for distinct trespassory intrusions of the kind that petitioner by hypothesis finds present here.

Now unless the Court has further questions on the statutory issue, I’ll pass on now to the question of the need for an express entry provision.

Justice John Paul Stevens: Mr. Frey, excuse me.

Justice William H. Rehnquist: Mr. Frey, what if in the course of execution of a warrant such was upheld by the Third Circuit here, an officer would have wandered into the bed and then go through the dressers, drawers and finds some stuff and there and seek to later offer that in evidence.

Do you think that would be admissible?

Mr. Andrew L. Frey: No.

Indeed we’ll come to that in the portion -- I don’t think -- I’ll come to that in the next portion of my argument discussing the need for --

Justice Potter Stewart: Anything in plain view would be admissible if you are right, that is currently --

Mr. Andrew L. Frey: In the course of doing what is reasonably necessary to carry out the court’s Title III order, anything that comes into plain view would be admissible.

Justice Potter Stewart: If you were lawfully present --

Mr. Andrew L. Frey: If you were lawfully present.

Justice Potter Stewart: Then anything in plain view would be admissible?

Mr. Andrew L. Frey: Yes.

I would --

Justice Potter Stewart: Before you proceed, I just want to identify one problem you may come to it later in your argument.

Do you view Section 3109 as changing the law that preexisted in this test statute, maybe you are going to cover that later.

Mr. Andrew L. Frey: Well, we view Section 3109 as imposing a restriction on the manner in which the police may execute search warrants of houses and we believe it applies only to occupied premises.

Justice John Paul Stevens: You don't view the statute as enlarging the officer’s authority?

Mr. Andrew L. Frey: We don’t and we think that the statute after all was originally adopted as part of a package of laws in the 3100 series that most of which is now incorporated in Rule 41.

So that our understanding is that Rule 41 conveyed to Magistrates the authority to authorize searches and to officers the authority to carry out such searches, and 3109 passed a special rule in accordance with the common law rule and perhaps constitutionally required I think that’s an issue that’s not clearly settled, regarding --

Justice William J. Brennan: That certainly wasn’t settled in Miller?

Mr. Andrew L. Frey: No, we’re not suggesting that it's settled and it was the subject of a division of opinion in Kerr.

Justice William J. Brennan: There was a division in Kerr?

Mr. Andrew L. Frey: Yes.

Justice William J. Brennan: But Miller was certainly not a constitutional --

Mr. Andrew L. Frey: But we think --

Justice William J. Brennan: Was it?

Mr. Andrew L. Frey: No, I think you said in Kerr that Miller was a supervisory power opinion, but it was your view that that was a constitutional underpinning.

But for purposes of this case I don’t think it’s necessary for the Court to consider whether 3109 is constitutional or statutory because we think it's plain that 3109 doesn’t apply to this kind of --

Justice John Paul Stevens: It just goes to question of whether there might be need for statutory authorization that’s the only relevance of it and I’m not expressing a view on it, but --

Mr. Andrew L. Frey: Well, the question I have argued so far that there is statutory authorization.

There is an argument that no statutory authorization is needed as well and that depends on how the court views the relationship of the trespassory entry to the search that was authorized by a court order and depending on how it’s viewed you may or may not --

Justice Thurgood Marshall: About the statutory point, what would be wrong with the judge asking how are you going about this, are you --

Mr. Andrew L. Frey: Nothing.

Justice Thurgood Marshall: Knock the man’s door down or not.

Mr. Andrew L. Frey: Excuse me.

Justice Thurgood Marshall: Are you going to knock the man’s door down?

Mr. Andrew L. Frey: There would be nothing wrong with the judge inquiring into it and indeed --

Justice Thurgood Marshall: What about requiring the judge to do that, to just see how far you are going?

Mr. Andrew L. Frey: There, in our view it’s, it is --

Justice Thurgood Marshall: Of course yeah and judge didn’t say anything --

Mr. Andrew L. Frey: I understand that Mr. Justice Marshall.

In our view it is good policy for us to go to the Magistrate, explain to him or judge in a case of a Title III order, explain to him how we are going to carry out the entry and obtain in the Title III order an express authorization, that is now the Department’s policy and regardless of the outcome of this case we would continue that policy because --

Chief Justice Warren E. Burger: Didn’t Judge Higgin Botham say in his opinion something to be effect that it would be prudent to disclose to the judge from whom the warrant is sought that they take this step, do this examination?

Mr. Andrew L. Frey: There is no -- he said that.

We agree with that but the fact that we may have been imprudent in this case is not a basis for over turning Mr. Dalia’s conviction.

Now turning to the question of whether there was a need for an express entry authorization in the eavesdropping order.

There is of course no such requirement contained and visible in Title III and we suggest that the issue is a purely constitutional one.

Now, I want to begin my discussion at this point by making clear that we are not suggesting the no warrant at all is necessary for surreptitious trespassory entry into an office or home.

Of course, our argument is that the warrant issued by Judge Lacey in this case authorizing the interception of oral communications in petitioner's enclosed office confer the requisite authority for the entry that was made.

Cases like Silverman and Katz thus do not help petitioner at all since they involve no warrant of any kind.

Now it’s undisputed that the Court’s Title III order in this case met all the stated requirements of the warrant clause of the Fourth Amendment.

It was sought under oath, a probable cause was shown and the order particularly described the place to be searched which is of special relevance here and also the things to be seized.

The entry was a necessary aspect of the execution of the court’s order, but in our view it was implicitly authorized in the same way as I’ve said before than any entry necessary to execute a conventional search as implicitly authorized by Rule 41 warrant.

Now in making our argument, we are also not contending and this gets to Justice Rehnquist's point that the Title III order alone suffices to give the agents an unlimited license to do as they please in executing the order.

Just as with the conventional search, the agents must act reasonably in the means they select to implement the Title III order and the reasonableness of their actions is subject to post search judicial inquiry.

Here that inquiry occurred and both lower courts found that the surreptitious entry was in fact reasonable and necessary to execute the eavesdrop order.

Now, as I pointed out earlier the vast majority of eavesdropping of enclosed interior locations will require a physical trespass.

The situation is not materially different from that of a conventional search.

Now, often a single conventional search can involve an intrusion into several arguably distinct privacy interests.

Yet, the satisfaction of the express requirements of the warrant clause is normally considered sufficient.

Now, let me give you a hypothetical of a warrant to search the second floor rear room of a house.

In the course of executing that warrant which particularly describes the place to be searched, the officers may hypothetically at least have a choice of entering the front or the back door, walking through the living room or the dining room or some other rooms where they are arguably distinct privacy interests.

I am aware of no case which suggest that they have to get a separate warrant or that the magistrate expressly has to describe how they do it.

That's not to say that they don’t have to do it reasonably when they go into the premises they can’t go into other bedrooms that are not on the way to the bedroom that they’re authorized to search.

Now, let me come back to a point that Mr. Justice White made yesterday which I think is a very powerful point in our favor on this issue and that is the effect of arrest warrants on the authorization of interest.

I think the law generally is at least in the lower courts and there is some suggestion implicitly in this Court although I assume the question is open to reexamination that an arrest warrant would authorize the officers to enter the home of the person named in the warrant on at least let’s say probable cause to believe that the person is present in order to carry out the arrest.

Now, this is a very parallel situation to the present situation.

Indeed logically our case is, I think stronger because in the case of an arrest warrant, there is a very substantial chance that the individual will be in a public place or alternatively that when you knock at his door, ring his bell, he will come to the door and no entry will be necessary.

Nevertheless, the state of the law in the lower courts at least is clear that the arrest warrant authorizes the entry and I may mention another fact that makes our case much stronger.

We have a description in our Title III order of the location, the entry into which is being challenged here, an arrest warrant would contain no description.

So it’s difficult for me to see if the Court rules against us in this case how it can be squared with the present doctrine and an arrest warrant appears to justify an entry into the suspect’s premises.

Now, finally just to make a couple of or to make one other point, the Court is free, it has the power as Justice Marshall suggested to ask the officers what are you going to do, how are you going to do it to consider restrictions that are deemed wise to impose on the manner of executing the search and I think this is true with conventional searches as well as with the Title III search.

And the existence of this power it seems to me elevates greatly any concern about the agents barging in.

Justice Thurgood Marshall: Suggesting that he be required to do it.

Mr. Andrew L. Frey: Well --

Justice Thurgood Marshall: And you wouldn’t object to them, would you?

Mr. Andrew L. Frey: Well we would object if you’re doing it by deciding this case against us, but otherwise we wouldn’t object to it.

Justice Thurgood Marshall: It maybe alright to put it in a foot note?

Mr. Andrew L. Frey: No, we would not object to your expressing the view if you felt so as the Chief Justice pointed out the Court of Appeals did in this case and several others have done, Judge Grufein I think did it in the Scaffidi case.

It’s a good idea.

We think it would be prudent for the government to do it, we agree.

Justice Thurgood Marshall: He said [Inaudible] the rule.

But now the present rule is that you do explain to the jury.

Mr. Andrew L. Frey: Well, we don’t -- we are not clear that except in the exercise of the court’s supervisory power over the conduct of district judges granting Title III orders, it is possible that the court could say that we want the judge in issuing an order to address themselves to this problem and to put a provision regulating the manner of entering into Title III order, it’s possible that you could do that.

Justice Thurgood Marshall: I misunderstood, I thought you said it was the rule of the department?

Mr. Andrew L. Frey: Well, it is the department’s policy to obtain an express authorization from the court for each entry that is made to install or to maintain or to replace.

Justice Thurgood Marshall: But there is no requirement that they tell this court how they are going to make the entry.

Mr. Andrew L. Frey: Well, I think it’s our, we are talking about surreptitious entries now.

Justice Thurgood Marshall: Yes sir.

Mr. Andrew L. Frey: I’m not sure exactly how we do it, but I think in practice the judges are made aware of how we are planning to do it.

Justice Thurgood Marshall: But it wasn’t in this case?

Mr. Andrew L. Frey: No, but this case was before the adoption of the policy.

We adopted the policy after the DC circuit’s decision in Ford called to our attention the difficulties --

Justice Thurgood Marshall: We will not find it obviously.

Mr. Andrew L. Frey: You will find it in our brief.

We discuss it in our brief and I think we’d quote from it at page --

Justice Thurgood Marshall: I missed it.

Mr. Andrew L. Frey: Page 56 of our brief.

Okay.

Justice William H. Rehnquist: Mr. Frey, we heard a case yesterday argued I don’t know whether you were here or not saying in which the criminal defendants claimed that violation of a regulation issued by an Executive Department required exclusion of evidence even though neither the constitution or the statute required it.

I take it you’re not suggesting that you’d be satisfied with a decision by this Court saying that a departure from departmental policy that you have referred to would require exclusion.

Mr. Andrew L. Frey: We would be very unhappy whatsoever decision, yes.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.