|United States v. Kahn
[ Stewart ]
[ Douglas ]
United States v. Kahn
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL concur, dissenting.
As a result of our decision in Berger v. New York, 388 U.S. 41, a wiretap -- long considered to be a special kind of a "search" and "seizure" -- was brought under the reach of the Fourth Amendment. [n1] The dominant feature of that Amendment was the command that "no Warrants shall issue, but upon probable cause" -- a requirement which Congress wrote into 18 U.S.C. § 2518. [n2] [p159] By § 2518(3), the judge issuing the warrant must be satisfied by the facts submitted by the police that there is "probable cause" for belief that "an individual" is committing the described offense, § 2518(3)(a); that there is "probable cause" for belief that particular communications concerning the offense will be attained by interception, § 2518(3)(b); that normal investigative procedures have been tried but have failed or reasonably appear to be unlikely to succeed or to be too dangerous, § 2518(3)(c), and that there is "probable cause" for belief that named facilities are being used or are about to be used in the commission of the named offense, § 2518(3)(d). The Act goes on to state that the judge must specify "the identity of the person, if known, whose communications are to be intercepted." § 2518(4)(a).
The judge in the present case described the telephones [p160] to be tapped and found probable cause to believe "Irving Kahn and others as yet unknown" were connected with the commission of specified interstate crimes. The judicial order authorized special federal agents to "intercept wire communications of Irving Kahn and others as yet unknown" concerning these crimes.
The agents intercepted incriminating calls made by Irving Kahn and also incriminating calls made by his wife, Minnie Kahn. The District Court on motions to suppress disallowed use of the conversations of Minnie Kahn; and the Court of Appeals agreed, saying that the probable cause order made it necessary for the Government to meet two requirements: (1) "that Irving Kahn be a party to the conversations, and (2) that his conversations intercepted be with ‘others as yet unknown,'" 471 F.2d 191, 195. That seems to be a common sense interpretation, for Irving Kahn, when using a phone, talks not to himself, but with "others" who at the time were "unknown." To construe the warrant as allowing a search of the conversations of anyone putting in calls on the Kahn telephone amounts, as the Court of Appeals said, "to a virtual general warrant in violation" of Mrs. Kahn's rights, id. at 197.
Whether the search would satisfy the Fourth Amendment is not before us, the decision below being based solely on the Act of Congress. Seizure of the words of Mrs. Kahn is not specified in the warrant. The narrow scope of the search that was authorized was limited to Mr. Kahn and those whom he called or who called him.
Congress, in passing the present Act, legislated, of course, in light of the general warrant. The general warrant historically included a license to search for everything in a named place as well as a license to search all and any places in the discretion of the officers. [p161] Frisbie v. Butler, 1 Kirby 213 (Conn.); [n3] Quincy's Mass. Rep. 1761-1772, App. I.
In light of the prejudice against general warrants which I believe Congress shared, [n4] I would not allow Mrs. [p162] Kahn's conversations to be impliedly covered by the warrant, for to do so allows a search of the entire list of outgoing and incoming calls to the Kahn telephones, even though no showing of probable cause had been made concerning any member of the household other than Mr. Kahn.
I cannot believe that Congress sanctioned that practice.
In the first place, though the agents just heard Mrs. Kahn using the phone on March 21 and though they continued their surveillance until March 25, they took no steps to broaden the warrant to include Mrs. Kahn. [n5] [p163]
There was time [n6] to obtain a warrant concerning Mrs. Kahn. I assume that one could have been obtained between March 21 and March 25. Then a judge would have decided the particularity of the search of the Kahn household.
Under today's decision, a wiretap warrant apparently need specify but one name and a national dragnet becomes operative. Members of the family of the suspect, visitors in his home, doctors, ministers, merchants, teachers, attorneys, and everyone having any possible connection with the Kahn household are caught up in this web.
I would affirm the judgment below.
1. Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
2. Title 18 U.S.C. § 2518 provides in pertinent part:
(1) Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the applicant's authority to make such application. Each application shall include the following information:
* * * *
(b) a full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including . . . (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted;
* * * *
(3) Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire or oral communications within the territorial jurisdiction of the court in which the judge is sitting, if the judge determines on the basis of the facts submitted by the applicant that --
* * * *
(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;
* * * *
(4) Each order authorizing or approving the interception of any wire or oral communication shall specify --
(a) the identity of the person, if known, whose communications are to be intercepted.
3. The warrant in the Frisbie case read in relevant part:
[Y]ou are commanded forthwith to search all suspected places and persons that the complainant thinks proper, to find his lost pork, and to cause the same, and the person with whom it shall be found, or suspected to have taken the same, and have him to appear before some proper authority, to be examined according to law.
1 Kirby 213-214.
The Court ruled:
With regard to the warrant -- Although it is the duty of a justice of the peace granting a search warrant (in doing which he acts judicially) to limit the search to such particular place or places, as he, from the circumstances, shall judge there is reason to suspect; and the arrest to such person or persons as the goods shall be found with: and the warrant in the present case, being general, to search all places, and arrest all persons, the complainant should suspect, is clearly illegal;
id. at 215.
4. The explicit requirements of the wiretapping provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 e seq., and their legislative history manifest a congressional effort to prevent law enforcement agents from proceeding by way of general search warrants. Section 2518(4)(a), of course, requires that a wiretap authorization order identify the person, if known, whose communications are to be intercepted. Sections 2518(4)(b) and (e) require that the order also specify the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted, and also particularly describe the type of communication to be intercepted and the particular offense to which it relates. Congress also provided that no order
may authorize or approve the interception of any wire or oral communication for any period longer than is necessary to achieve the objective of the authorization.
§ 2518(5). An authorization order, moreover, must specify that the electronic surveillance "shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter." Ibid.
Before a wiretap order can issue, Title III also demands that law enforcement officers applying for the order provide the judge with information describing the offense, the facility, the type of communication, and the identity of the person, if known, committing the offense and whose communications are to be intercepted, § 2518(1)(b), because, in the view of Congress, "[e]ach of these requirements reflects the constitutional command of particularization." S.Rep. No. 1097, 90th Cong., 2d Sess., 101. Furthermore, § 2518(3) requires the judge, before issuing a wiretap order, to find that there is probable cause to believe that an individual is involved with a particular offense, that particular communications concerning that offense will be intercepted, and that specific facilities are being used or are about to be used in connection with the commission of such offense, or are leased to, listed to, or commonly used by the individual. Congress inserted these provisions because it felt that, with them,
the order will link up specific person, specific offense, and specific place. Together, they are intended to meet the test of the Constitution that electronic surveillance techniques be used only under the most precise and discriminate circumstances, which fully comply with the requirement of particularity.
S.Rep. No. 1097, supra, at 102.
See also id. at 74-75; 114 Cong.Rec. 14712, 14750 (remarks of Sen. McClellan); id. at 14728 (Sen. Tydings); id. at 14715 (Sen. Tower); id. at 14763 (Sen. Percy); id. at 14748 (Sen. Mundt).
5. If the statement made by Mrs. Kahn on the telephone March 21 was incriminating, there would be a question whether it could be the basis for obtaining a broadening of the warrant to include her without violating Silverthorne Lumber Co. v. United States, 251 U.S. 385. In that case, papers had been seized by officers in violation of the parties' Fourth Amendment rights but used by the officials as a basis for demanding in proper form that the owners produce the papers. Mr. Justice Holmes, speaking for the Court, rejected that procedure, saying:
The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court, but that it shall not be used at all. Of course, this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source, they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed.
Id. at 392.
6. Cf. Johnson v. United States, 333 U.S. 10; United States v. Di Re, 332 U.S. 581; Trupiano v. United States, 334 U.S. 699.