parties and submitted to the Court for its determination.
1. CONSTITUTIONALITY OF THE STATUTE
All defendants have attacked the constitutionality of the statute authorizing the interception. Their primary argument is that the statute contravenes the 4th Amendment restrictions against unreasonable searches and seizures.
The motions before the Court challenge the validity of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, particularly Section 2518, Title 18, United States Code, which establishes the procedure for the interception of wire and oral communications.
As already indicated the Fourth Amendment to the Constitution of the United States provides the constitutional framework within which to test the validity of the statute. This amendment dictates that people have a right "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and that this right "shall not be violated, and no warrant 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". The amendment does not bar all searches and seizures but only those that are unreasonable. The amendment outlawed the "general warrant", and its basic purpose "is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials." Camara v. Municipal Court, 387 U.S. 523, 528, 87 S. Ct. 1727, 1730, 18 L. Ed. 2d 930. Thus the issue confronting this Court is whether 18 U.S.C. § 2518 is so broad as to result in the authorization for a general warrant permitting an unreasonable search and seizure in violation of the 4th Amendment.
The United States Supreme Court faced a similar problem in Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967). There it held the New York permissive eavesdrop statute, N.Y. Code Crim. Proc. § 813-a, to be unconstitutionally broad in its sweep "resulting in a trespassory intrusion into a constitutionally protected area" and thus violative of the 4th and 14th Amendments. The Court condemned the New York statute's "blanket grant of permission to eavesdrop * * * without adequate judicial supervision or protective procedures," 388 U.S. at 60, 87 S. Ct. at 1884 and reiterated the 4th Amendment requirement that a neutral and detached authority be interposed between the police and the public. It held that this authority must independently find probable cause, and that "warrants may only 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'." 388 U.S. at 55, 87 S. Ct. at 1881.
In striking down the constitutionality of the New York Statute the Supreme Court delineated four basic 4th Amendment requirements of particularity that must be a part of any statute authorizing wiretapping or eavesdropping. These requirements are as follows:
1. The statute must provide that probable cause be established in the application and order for the belief that a particular offense has been or is being committed; a particular description of the property (conversations or communications) to be seized, and not merely the name or identity of the person whose conversations are to be seized.
2. The statute must require particularity as to the duration of the intrusion which shall not be so long as to be "the equivalent of a series of intrusions, searches, and seizures pursuant to a single showing of probable cause". The statute must provide for prompt execution of the order and for a new showing of probable cause upon each application for an extension of the original authorization.
3. The statute must require particularity as to the termination date once the particular conversation sought is seized, rather than leaving such cut-off date to the discretion of the officer.
4. The statute must provide for either notice to the persons whose conversations are to be seized or a showing of special facts or exigent circumstances necessitating the withholding of notice. The statute must also require a return on the warrant in order to limit the discretion of the officer as to the use of the seized conversations which may be of innocent as well as guilty parties.
The requirement of a showing of probable cause before an independent judicial officer imposing the necessary safeguards was reiterated by the Supreme Court in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). In that case the Supreme Court held that although the eavesdropping officers had exercised great restraint and limited their intrusion into the petitioner's privacy, the intrusion was nevertheless unlawful because it lacked the safeguards of judicial restraints independently imposed. It held that the agents should have been required "before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate." They should have been "compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order", and they should have been directed to notify the authorizing magistrate after completion of the search "in detail of all that had been seized".
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 represents an attempt by Congress, among other things, to structure a limited system of wire surveillance and electronic eavesdropping within the framework of the 4th Amendment and the guidelines of Berger, Katz, and other Supreme Court decisions for use by law enforcement officers in fighting crime. An examination of the portions of the statute relevant to these motions reveals that they track the constitutional requirements of particularity, judicial restraints and supervision, and the other protective procedures outlined by the Supreme Court in Berger and Katz.
The Statute vests control and supervision of its use in Judges of the U.S. District Court and the U.S. Court of Appeals. (See 18 U.S.C. §§ 2510(9) (a) and 2516(1)). Section 2518(1), Title 18, U.S. Code, requires that the application for a wiretap must contain certain information and be made to such judge who may require additional testimony or documentary evidence in support of the application, 2518(2), Title 18, U.S. Code. Section 2518(3) provides for an independent determination by the judge and
"(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 --
(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter;