United States v. Bell

637 F. Supp. 452, 1986 U.S. Dist. LEXIS 26163
CourtDistrict Court, D. Kansas
DecidedApril 29, 1986
DocketNos. 85-10089-04, 85-10089-05
StatusPublished
Cited by2 cases

This text of 637 F. Supp. 452 (United States v. Bell) is published on Counsel Stack Legal Research, covering District Court, D. Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Bell, 637 F. Supp. 452, 1986 U.S. Dist. LEXIS 26163 (D. Kan. 1986).

Opinion

MEMORANDUM AND ORDER

CROW, District Judge.

These cases arise from a criminal investigation which began in the spring of 1985 and culminated with the indictment of more than 50 individuals in November of 1985. During the investigation, extensive use was made of electronic surveillance. In [453]*453the present motion, defendants seek to suppress the result of this electronic surveillance as a result of alleged failures to comply with the requirements of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 to 2520. Defendants object to the electronic surveillance of telephones which was conducted pursuant to court order and to interception of mobile phone and mobile pager communications which was obtained without court order.

The court has reviewed the memoranda submitted by the parties and has heard argument in this matter. At oral argument, the government’s counsel represented that no communications intercepted from the mobile phone or mobile pager will be offered at trial. It is therefore unnecessary for the court to address that issue. For the reasons stated below, the court concludes that the wire communications occurring on May 2,1985, were intercepted in accordance with the requirements of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, and that no valid grounds exist to suppress those communications.

The wire communications which defendants seek to suppress were obtained pursuant to an order issued by a judge of the district court for the 18th Judicial District of Kansas dated April 12,1985. The eavesdropping was authorized for the period April 18, to May 5, 1985. The affidavit supporting the order listed gambling offenses as the justification for the eavesdropping. This order was extended on May 2, 1985, to continue until May 12, 1985. On May 10, 1985, an eavesdropping order was obtained form the same court to monitor the same telephone lines for narcotics related communications. This order was authorized to extend for 21 days beginning May 12, 1985. Other eavesdropping was authorized in conjunction with this investigation, however, these orders are not relevant to the present motion.

In order to enforce constitutional standards for electronic surveillance as established by the Supreme Court, Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 to 2520. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). Above all, Congress was concerned with protecting the privacy of the citizens of the United States. “Our mandate to strictly construe judicial wire tap authorizations is bottomed on the fact that ‘[f]ew threats to liberty exist which are greater than that posed by the use of eavesdropping devices.’ [citation omitted]” United States v. McNulty, 729 F.2d 1243 (10th Cir.1983). Title III establishes strict requirements which must be met in order to obtain authority to intercept wire communications for criminal investigations.

The communications at issue in this case were intercepted on May 2, 1985. At that time, only an order authorizing interception for gambling offenses was in effect. On November 19, 1985, the government applied to the state judge who had authorized all of the interceptions in question to use the communications pertaining to narcotics offenses before the grand jury. The order was signed at 8:38 a.m. and the grand jury met and presumably received the evidence later that day.

Title III makes allowances for the use of intercepted communications dealing with crimes other than those for which the eavesdropping was originally authorized.

When an investigative or law enforcement officer, while engaged in intercepting wire or oral communications in the manner authorized herein, intercepts wire or oral communications relating to offense other than those specified in the order of authorization or approval, the contents thereof, and the evidence derived therefrom, may be disclosed or used as provided in subsection (1) and (2) of this section. Such contents and any evidence derived therefrom may be used under subsection (3) of this section when authorized or approved by a judge of competent jurisdiction where such judge finds on subsequent application that the [454]*454contents were otherwise intercepted in accordance with the provisions of this chapter. Such application shall be made as soon as practicable.

18 U.S.C. § 2517(5).

The defendants contend these communications should be suppressed because the November 19, 1985 order is insufficient to authorize the testimonial use of this evidence as required by 18 U.S.C. § 2517(5). The defendants object that the order authorizing use of this other crimes evidence fails to state with particularity the offenses for which the evidence may be used and that the application for its use was not made as soon as practicable as required by 18 U.S.C. § 2517(5) and the applicable Kansas statute.

The defendants argue the Kansas statute and interpreting cases should control the court’s decision in this matter. The federal courts have recognized that the states may impose more stringent requirements on law enforcement officers seeking to obtain wire tap authorizations. In ruling on the admissibility of evidence obtained by state law enforcement officers pursuant to state law, the federal courts apply the state rules. United States v. McNulty, 729 F.2d at 1265-66. The Tenth Circuit limited its application of state law to the question of the validity of the wire tap order obtained. In a case relied on heavily by the Tenth Circuit in McNulty, the Second Circuit refused to extend the application of state law to the disposition of evidence after a legal interception.

[I]t is readily apparent that New York’s sealing requirements, although vital to the state statutory scheme, do not impose a standard design to protect the individual’s right of privacy but seek only to assure that, once a lawful interception has been completed, the fruits of the seizure will remain intact. The sealing requirement is a post-interception procedure relating solely to the later preservation of the evidence, as contrasted to the methods used to obtain it____
[Wjhatever interest, if any, the state may have in securing federal enforcement of its sealing requirements through application of the exclusionary rule is outweighed by the federal interest in establishing its own standards for the admission of lawfully obtained wiretaps into evidence.

United States v. Sotomayor, 592 F.2d 1219, 1226 (2d Cir.) cert. denied, 442 U.S.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Commonwealth v. Hashem
525 A.2d 744 (Supreme Court of Pennsylvania, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
637 F. Supp. 452, 1986 U.S. Dist. LEXIS 26163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-bell-ksd-1986.