State v. Sitko

460 A.2d 1, 1983 R.I. LEXIS 857
Supreme Court of Rhode Island·Decided May 2, 1983·No. 81-74-C.A.·Published·Cited by 13 cases

Opinion

OPINION

SHEA, Justice.

The defendant, Albert Edward Sitko, appeals his conviction of two counts of possession of a firearm after a previous conviction of a crime of violence. At trial, much of the evidence presented against the defendant resulted from a search authorized by a warrant. This warrant, in turn, was based on evidence supplied by the results of a court-authorized wiretap placed on the telephone in the Woonsocket home of defendant Sitko. Prior to trial, the defendant filed a motion to suppress the evidence obtained from the wiretap, which was denied. We reverse.

On July 26, 1978, then-Attorney General Julius C. Michaelson, pursuant to G.L.1956 (1969 Reenactment) chapter 5.1 of title 12, made application, in writing, to the Presiding Justice of the Superior Court for an order authorizing the police to place a wiretap on a phone, 765-1861, listed under the name of Patience Sitko, the defendant’s wife. In his sworn application, the Attorney General asserted that information presented to him by members of the Intelligence Unit of the Rhode Island State Police led him to believe that defendant and others were committing several named violations of the General Laws of Rhode Island 1 *2 and suggested that defendant was using 765-1861 to further these and other illicit activities.

Attached to the application was an affidavit by Brian R. Andrews, a member of the Rhode Island State Police’s Organized Crime Intelligence Unit, detailing information regarding defendant’s activities. The affidavit first stated that Officer Andrews, in light of an informant’s statements, had investigated defendant, and then outlined the nature and results of his surveillance of Sitko during the spring of 1978.

The authorization order permitting the installation of a wiretap on 765-1861 was entered on July 27, 1978. It contained a finding that there was probable cause to believe that defendant was committing a number of offenses and that information concerning the stated offenses “as more fully detailed on Page 3 of the Application of Attorney General Julius Michaelson” would be obtained through interception of wire communications over telephone 765-1861. The order permitted the police to tap the telephone for a thirty-day period, twenty-four hours daily. Furthermore, it provided that although the order to intercept “shall not automatically terminate when the above-described communications have been first obtained”, it must terminate “upon attainment of the authorized objective or in any event within thirty (30) days i|e ‡ ‡ h

As a result of the conversations overheard, the police applied to the presiding justice for a search warrant for the premises located at 61 Wilson Avenue, the home of defendant and his wife. A warrant was issued authorizing the police to search for “any firearm.” In September 1978 the police executed the warrant and, in the course of the search, discovered and seized two firearms that, along with other items seized, were introduced at defendant’s trial. Prior to trial, defendant unsuccessfully moved to suppress the results of the wiretap as well as those of the search.

Before us now, defendant asserts numerous errors of law arising both before and during trial, including the hearing justice’s refusal to suppress the product of the wiretap on the phone located in defendant’s home. In particular, defendant contends that the wiretap order did not contain a particular description of the type of communication sought to be intercepted, as required by our state’s wiretap statute, G.L. 1956 (1981 Reenactment) § 12-5.1-5. We agree.

Electronic devices enable law enforcement officers to monitor and record the private conversations of individuals and therefore allow them to monitor the movements of persons and objects. We have recognized that wiretapping is undoubtedly a “valuable tool in a police officer’s arsenal as he wages war with the criminal element in our society.” State v. Maloof, 114 R.I. 380, 383, 333 A.2d 676, 678 (1975). Uncontrolled use of such devices, however, threatens the privacy of individuals. In fact, “tapping,” because of its continuous nature, poses a much greater threat to one’s right of privacy than a conventional physical search of one’s premises.

This court has stated that the citizens of this state have “a double barrelled source of protection which safeguards their privacy from unauthorized and unwarranted intrusions: the fourth amendment of the Federal Constitution and the Declaration of Rights which is specified in the Rhode Island Constitution.” State v. Luther, 116 R.I. 28, 29, 351 A.2d 594, 594-95 (1976); State v. Maloof, 114 R.I. at 384, 333 A.2d at 678. Both documents provide for the right of the people to be secure in their persons, papers, and possessions against unreasonable searches and seizures. Our previous decisions also recognized that under the guarantees of our Rhode Island Constitution, we could establish a higher standard of protection for this state’s citizens than *3 might otherwise be afforded under the Fourth Amendment. State v. Maloof, 114 R.I. at 389, 333 A.2d at 681. This court therefore adopted a higher standard of protection by requiring that there be strict compliance with the explicit directives detailed in § 12-5.1-5, which specifies the form and content that must be satisfied to conduct an electronic search. State v. Luther, 116 R.I. at 29, 351 A.2d at 595.

Chapter 5.1 of title 12, which became effective on May 2, 1969, was adopted in response to Title III of the Omnibus Crime Control and Safe Streets Act enacted by Congress in 1968 and codified as 18 U.S. C.A. §§ 2510 to 2520 (1970). State v. Maloof, 114 R.I. at 381, 333 A.2d at 677. Our statute, which is very similar to the federal counterpart, authorizes the Attorney General or an assistant attorney general to apply to the Presiding Justice of the Superior Court for an order authorizing the electronic interception of “any wire or oral communications” by certain federal, state, or municipal law enforcement officers as they conduct an investigation of several specific crimes. Id. Section 12-5.1-5 dictates the form and contents of such orders. In its relevant portions, section 12-5.1-5(a) states:

“Each order authorizing the interception of any wire or oral communication shall specify—
‡ * ‡ Jfc !}!
(3) a particular description of the type of communications sought to be intercepted, and a statement of the particular offense to which it relates; * *

In the case at bar, the order of July 27, 1978, did not contain a particular description enumerating the type of communications sought to be intercepted. Rather, the order incorporates by reference page 3 of the Attorney General’s application to gain that information. 2

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State v. Sitko, 460 A.2d 1, 1983 R.I. LEXIS 857 (R.I. 1983).

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