The opinion of the court was delivered by: GESELL
Motions to suppress are before the Court raising questions common to these five indictments in which eight defendants are charged with various narcotic drug offenses under the United States and District of Columbia Codes. The Government's proof is based in part on interceptions of oral communications made by the District of Columbia police after having placed transmitting devices inside the Meljerveen Ltd. Shoe Circus, an establishment located on Georgia Avenue, N.W., in Washington, D.C. The police acted under an order of another Judge of this Court
authorizing the interceptions based on D.C.Code §§ 23-541 et seq. entitled "Wire Interception and Interception of Oral Communications," which is a local statute tracking the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq.
Defendants contend, among other things, that D.C.Code § 23-541 is unconstitutional as applied in this instance because, in the absence of limitations placed by the Code, the authorizing Judge did not restrict the manner of entry and gave unlimited authority for any number of entries to be made in connection with installation of the devices. This challenge to the warrant as overly broad is strenuously opposed. Testimony was taken and the issues must be resolved within the traditional procedural and substantive protections that have developed for implementing the strictures of the Fourth Amendment to the Constitution.
This is not a wiretap case where police intercept by a tap made outside the premises under surveillance. Rather, it is a "bugging" case involving entry into such premises and subsequent interception of conversations by a transmitting device installed inside. The questions presented are somewhat novel because a recently enacted statute is invoked and there are few "bugging" decisions. Before considering the legal issues, the Court will first outline what apparently occurred when the authorization was obtained and executed as developed at the suppression hearing.
The police, working closely with the United States Attorney, had concluded on substantial evidence that two or more defendants were operating a narcotic business primarily during night hours
at the Meljerveen Ltd. Shoe Circus in Washington, D.C. The police were reliably informed that targets of the investigation apparently believed their telephone was tapped, and the police therefore sought means to "bug" the premises. Use of a spike mike or parabolic mike was considered impractical under the physical conditions pertaining at the site and discussion therefore focused upon how "bugs" might be installed in the premises themselves.
Before approaching the Judge, the U.S. Attorney's office considered simulating a nighttime break-in, a fire or postal inspection, and a bomb scare. Because of "Watergate" overtones, a break-and-enter was rejected and the decision made to use a bomb scare ruse to evacuate the premises, gain entry and effect the necessary installations.
This decision was orally presented to the Judge in chambers without a transcript by the U.S. Attorney's office and the Court took the view that any and all pretexts were reasonable, indicated no objection to the bomb scare ruse and left the entire decision as to method of entry to the police. Thereafter, the detective responsible for the affidavit in support of the application for the warrant was questioned on a transcript in chambers as to probable cause and instructed as to minimization. Based on the wholly sufficient affidavit and the detailed showing of probable cause, the Order (Misc. No. 75-159) authorizing interception of oral communications pursuant to D.C.Code § 23-547 was signed on September 4, 1975, at 11:20 a.m., without change in the undifferentiated form submitted by the U.S. Attorney. The authorization was to end in 20 days and the Order directed that an undesignated number of devices be placed "as soon as practicable." Minimization was required and the court directed that periodic progress reports be made on the fifth, tenth, fifteenth and twentieth days. Movants focus on paragraph (d) of the Order which reads as follows:
The "bugs" were installed in about a half hour's time by a team of three or four police posing as a unit of the police bomb squad on September 5, around 11:30 a.m. On September 6, the police realized the "bugs" were not working and advised the U.S. Attorney who in turn advised the authorizing Judge. It was decided to re-enter on the same bomb scare ruse and install new "bugs," and the Judge approved. No transcript was taken.
The second entry was made in the same fashion as the first on September 10 about 1:30 p.m. and this time the interception worked. There were two functioning "bugs," both of the type that connected to AC current; one was on the store floor attached to an icebox which was near the point where the front sales room and a back storage-type room less frequented by the public adjoined and the second was attached to the overhead light of basement room where there was a type of lounge not open to the public.
Reports were made to the Judge on September 9, 15, 22 and 24. Minimization was conscientiously undertaken and the interception eventually terminated on the 20th day by another entry openly made under the warrant.
Thus it is apparent that the authorizing Judge was fully informed and maintained close scrutiny over what was taking place. A review of the jacket, Misc. No. 75-159, which records all papers relating to the interception, reflects the way the matter was monitored by the Judge.
The decisions under the Fourth Amendment or related statutes dealing with the installation of transmitting devices in private quarters to enable a continuous overhearing from the outside of what takes place inside are extremely few and not particularly instructive as guides for resolution of the instant case. Obviously the reasonableness of the search and seizure in this instance must withstand the closest scrutiny.
Where a search warrant issues for the seizure of specified contraband or evidence, there are statutory provisions in the District of Columbia governing execution. For example, an officer serving the warrant must announce his intention to enter and his identity. The time the warrant is executed is also generally limited to daytime unless a magistrate permits nighttime entry for cause shown. Moreover, upon entry the search is limited to specific, previously identified items. There is no re-entry. In contrast, the installation of a transmitting "bug" in private premises as a necessary condition precedent to the search and seizure of the subsequent oral communications must, in the nature of things, be proceeded by a covert entry of some kind. The existence of the warrant, the entry by the police, the safeguards of prior warning before the search commences, etc., must all be hidden from the private parties searched in order to carry out the purpose of the police under the authority of the warrant. There are no express statutory provisions in the District of Columbia authorizing covert entry by the police into private premises for the ...