United States v. Lawrence Dalia, 575 F.2d 1344, 3rd Cir. (1978)
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Scribd Government DocsUnited States v. Lawrence Dalia, 575 F.2d 1344, 3rd Cir. (1978)
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Scribd Government Docs575 F.
2d 1344
UNITED STATES of America, Appellee,
v.
Lawrence DALIA, Appellant.
No. 77-1277.
United States Court of Appeals,
Third Circuit.
Argued Jan. 5, 1978.
Decided May 3, 1978.
Jonathan L. Goldstein, U. S. Atty., Maryanne T. Desmond, Asst. U. S.
Atty., Chief, Appeals Div., Newark, N. J., for appellee.
Louis Ruprecht, Ruprecht & Graham, Newark, N. J., for appellant.
Before ROSENN and HIGGINBOTHAM, Circuit Judges, and
VanARTSDALEN, District Judge.*
OPINION OF THE COURT
HIGGINBOTHAM, Circuit Judge.
The crucial issue before this Court in this appeal from a final judgment of
conviction stems from the use of electronic surveillance to obtain evidence of
Lawrence Dalia's complicity in the crimes of which he was found guilty. Dalia
was found guilty under two counts of a five-court indictment for conspiracy to
transport, receive and possess stolen goods in violation of 18 U.S.C. 371
(1970) and for receiving stolen goods while in interstate commerce in violation
of 18 U.S.C. 2, 2315 (1970). Dalia's co-defendant, Daniel Rizzo, pleaded
guilty to the offenses charged in the indictment prior to the commencement of
the trial. Five named co-conspirators were charged in a prior indictment and
pleaded guilty to the charge of possessing goods stolen in interstate commerce
in violation of 18 U.S.C. 659 (1970). These five individuals were arrested on
April 5, 1973, by FBI agents who, in the execution of a search warrant, found
the stolen 664 rolls of polyester fabric valued at approximately $250,000. These
rolls of fabric were the same goods underlying the offenses for which the
appellant, Dalia, was convicted. Dalia was sentenced to serve two concurrent
five-year terms.
I.
2
On March 14, 1973, Judge Frederick B. Lacey granted the United States
Department of Justice authorization to intercept wire communications
emanating from two telephones located in Dalia's business office pursuant to
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.
2510 et seq. The original order authorized wire interception for a period of
twenty days. Upon the expiration of that order a new order was issued
authorizing the interception of both wire and oral communications. The second
order, issued April 5, 1973, provided that the Special Agents of the FBI were
authorized to:
3
Intercept
oral communications of Larry Dalia, and others as yet unknown,
concerning the above-described offenses at the business office of Larry Dalia,
consisting of an enclosed room, approximately fifteen (15) by eighteen (18) feet in
dimension, and situated in the north westernly corner of a one-story building
housing Wrap-O-Matic Machinery Company, Ltd., and Precise Packaging, and
located at 1105 West St. George Avenue, Linden, New Jersey.
4
By an order dated April 27, 1973, the authorization to intercept oral and wire
communications was extended for a maximum of twenty days. Pursuant to
these orders, two business phones used by Dalia were electronically surveilled
and a hidden microphone was installed in his place of business. Each
interception order directed the Department of Justice to provide the court with
progress reports on the fifth, tenth and fifteenth days of surveillance. Finally, on
May 16, 1973, the interception of wire and oral communications terminated.
Appellant's major contention on appeal to this Court pursuant to 28 U.S.C.
1291 is that an electronic listening device was unlawfully installed on his
business premises by government agents after gaining entrance by surreptitious
entry not explicitly authorized in the court's orders. Therefore, appellant argues,
the trial judge erroneously denied his motion to suppress tapes obtained from
the oral interception.1 We agree with Judge Lacey that an order authorizing the
interception of oral communications does not require explicit authorization for a
forcible, surreptitious entry and we affirm.
II.
6
Appellant argues that the fourth amendment prohibits use of evidence obtained
from an electronic listening device which agents installed in his premises after
forcible and surreptitious entry without express judicial approval for such entry.
In essence, the appellant contends that while the surveillance itself may be
legally authorized by a search warrant, the legality of the break-in is entitled to
separate fourth amendment scrutiny. Judge Lacey held that such explicit
judicial approval of a break-in was not required when the surveillance was
properly authorized.
7
Since Judge Lacey filed his opinion, the Fourth, Second and D. C. Circuits
have rendered decisions on the issue involved in this case. In Application of
United States for an Order Authorizing the Interception of Oral
Communications, 563 F.2d 637 (4th Cir. 1977), the court held that government
agents could covertly enter private premises to install a listening device only
after the district court had made an independent determination to allow such
covert entry. 563 F.2d at 644. Similarly in United States v. Ford,2 180
U.S.App.D.C. 1, 553 F.2d 146 (1977), in an opinion per Judge Skelly Wright,
the court held that the Fourth Amendment required that government agents
seek a valid warrant specifically authorizing surreptitious entry to install
electronic surveillance devices. In Ford, supra, the court's order authorized
surreptitious entry; however, the order was found invalid on its face because of
overbreadth. 180 U.S.App.D.C. at 20, 553 F.2d at 165. To the contrary, in
United States v. Scafidi, 564 F.2d 633 (2d Cir. 1977), the Second Circuit held
that implicit in a court order authorizing the interception of oral
communications was the concomitant authorization to secretly enter the
premises to install the electronic surveillance device.
8
(A)ny
order approving electronic surveillance of conversations to be overheard at a
particular private place, must, to be effective, carry its own authority to make such
reasonable entry as may be necessary to effect the "seizure" of the conversations.
9 therefore, hold that when an order has been made upon adequate proof as to the
We,
probable cause for the installation of a device in particular premises, separate order
authorizing entry for installation purposes is not required. 564 F.2d at 640.
10
Judge Lacey found that in this case a surreptitious entry was within
contemplation.
11 this set of facts, I find that the safest and most successful method of
On
accomplishing the installation of the wiretapping device was through breaking and
entering the premises in question. Dalia in fact stated that, to the best of his
knowledge, it would be impossible to install such a device in that location without
gaining access to the building forcibly. Affidavit of Dalia at P 4. In most cases the
only form of installing such devices is through breaking and entering. The nature of
the act is such that entry must be surreptitious and must not arouse suspicion, and
the installation must be done without the knowledge of the residents or occupants.3
12
426 F.Supp. 862, 866 (1977).
13
We accept Judge Lacey's finding that a surreptitious entry was the most
effective means for installing the interception device as well as his finding that
the installation was based upon probable cause and executed in a reasonable
fashion.
14
In rejecting appellant's contention in this case that separate authorization was
required for the forcible surreptitious entry, we do not adopt a rule that specific
authorization is never required. In the future, the more prudent or preferable
approach for government agents would be to include a statement regarding the
need of a surreptitious entry in a request for the interception of oral
communications when a break-in is contemplated.4 This burden is minimal in
light of the fourth amendment considerations that could be later raised.
15
The judgment of the district court will be affirmed.
Honorable Donald W. VanArtsdalen, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation
Appellant also maintains that the supervising judge was misled by the
government's progress reports and that the continuing electronic surveillance
was unjustifiable, not so minimized as claimed by the government, and,
presumably, lacking in probable cause. Appellant argues that the trial court
erred in failing to interrogate a juror to determine whether the verdict was
"tainted" by extraneous influences, that the disclosure of a privileged
communication between Dalia and his wife to a grand jury that did not issue his
indictment justifies the suppression of all electronically intercepted evidence
and, finally, that the trial court abused its discretion in sentencing Dalia to two
five-year concurrent terms. We find no merit to these contentions
United States v. Finazzo, 429 F.Supp. 803 (E.D.Mich.1977), held that
independent court authorization was required for covert entry to carry out an
oral interception order. That court, in an opinion per now Circuit Judge Damon
Keith, followed the analysis of United States v. Ford, supra, and the
"reservations expressed by the Court of Appeals for the Eighth Circuit" in
United States v. Agrusa, 541 F.2d 690 (8th Cir. 1976). In Agrusa, supra, the
interception order contained express court authorization to break and enter. The
court noted at 541 F.2d at 696 n.13:
We do not decide what result obtains if the officers act without express court
authorization to break and enter (although with court authorization to intercept).
We are certain, however, that the resolution becomes much more difficult in
that event, and we commend the procedures employed here to law enforcement
officials in the future.
3
When Dalia's counsel argued before the commencement of trial the need for
greater court supervision in the covert installation of interception devices, Judge
Lacey clarified, for the record, his involvement in the follow-up of his order.
He stated that: (1) he did not discuss with the supervising attorney or the agents
how the order would be carried out and gave no limiting instructions on this
matter and (2) he did not discuss afterwards how the order was carried out or
how entry was made. Consequently, we cannot affirmatively state that the
record demonstrates that Judge Lacey was actually aware of the surreptitious
entry; however, his opinion shows that he was cognizant that such surreptitious
entry might be most appropriate
When the request to intercept oral communications was made in 1973 in the
instant case the Department of Justice was not on notice of any conflict among
the circuits. Since that time, absent a Supreme Court decision, there has
developed an irreconcilable conflict among the various courts of appeals
