1974, September, Pg. 465. U.S. Supreme Court Criminal Decisions: 1973-1974 Term.

• Author: by Justice William Erickson

3 Colo.Law. 465

Colorado Lawyer

1974.

1974, September, Pg. 465.

U.S. Supreme Court Criminal Decisions: 1973-1974 Term

465Vol. 3, No. 11, Pg. 465U.S. Supreme Court Criminal Decisions: 1973--1974 Termby Justice William EricksonColorado Supreme Court

I. PROCEDURE

A. Investigative Phase1. Search and Seizurea. Electronic Surveillance(1) Authorization of Application for Interception Order

United States v. Giordano, ___ U.S.___, 94 S.Ct. 1820, 40 L.Ed.2d 341 1974): Section 2516(1) of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 provides that only the Attorney General or an Assistant Attorney General specially designated by him can approve a request to apply for a wiretap. Thus, the Court held that evidence derived from a wiretap order, the application for which was authorized by the Attorney General's Executive Assistant, was "unlawfully intercepted" within the meaning of § 2518(10)(a) and, therefore, subject to suppression under § 2515. Communications are "unlawfully intercepted" within the meaning of § 2515(i) not only when they have been obtained in violation of constitutional requirements, but whenever there has been a "failure to satisfy any of those statutory requirements that directly and substantially implement the Congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device." 28 U.S.C. § 510, which authorizes the Attorney General to delegate to others within the Department any of his functions, does not control over the specific provisions of § 2516(1).

United States v. Chavez, _____ U.S.___, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974): Although § 2518(1)(d) and (4)(a) of Title III of the Omnibus Crime Control and Safe Streets Act provide that both the application for an interception order and the order itself shall specify the identity of the person authorizing the application, and although § 2515 provides that evidence derived for communications intercepted "in violation of this Chapter" shall be suppressed, interceptions are not "unlawful" within the

466meaning of § 2518(10)(a)(i) and suppression is not necessary where the order and the application therefor incorrectly identify the Assistant Attorney General as the person who approved the request, when in fact, the Attorney General himself has done so. Such errors do "not represent a failure to follow Title Ill's precautions against the unwarranted use of wiretapping or electronic surveillance...."

Douglas, Brennan, Stewart, and Marshall, dissenting, state that Title III unambiguously provides that a violation of any of its provisions makes evidence thereby obtained inadmissible. They contend that the majority's interpretation thwarts one of Congress' primary purposes for requiring the identity of the authorizor to be firmly established at the time of an application for an interception order. The purpose of that provision was to ensure the immediate fixing of responsibility for policy decisions on the use of electronic surveillance in an identifiable public official subject to the political process.

(2) Persons Named in the Interception Order

United States v. Kahn, 415 U.S.___, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974): Pursuant to § 2518 of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, an order was issued which authorized FBI agents to intercept wire communications concerning gambling activities "of Irving Kahn and others as yet unknown" to and from the Kahn home telephones. After her indictment as a result of the wiretapping, Minnie Kahn, wife of Irving, moved to suppress the conversations to which she was a party on the ground that she was not "as yet unknown" to the federal authorities at the time of the wiretap application.

The Court rejected the Seventh Circuit's interpretation which excluded from the term "others as yet unknown," any "persons whom careful investigation would disclose were probably using the Kahn telephone in conversations for illegal activities."

A person need not be named in the interception order or application therefor merely because it is likely he will be using a telephone from which conversations are to be intercepted. Title III requires that an individual be named only when law enforcement authorities have probable cause to believe that the individual is committing the offense for which the wiretap is sought. Authority to intercept is not limited to those conversations to which a person named in the interception order is a party. In refusing to engraft a separate requirement of "discoverability" onto the provisions of Title III, the majority rejected the contentions of the dissenters that without this requirement a wiretap order would amount to "a virtual general warrant" by allowing the search of the conversations of any individual using the named telephones.

2. Time of Execution of WarrantGoading v. United States, _____ U.S.___, 94 S.Ct. 1780, 40 L.Ed.2d 250 (1974): The legality of a nighttime search for illegal drugs conducted in the District of Columbia pursuant to a search warrant is governed by 21 U.S.C. § 879(a), rather than by local laws or by Rule 41, F.R.Crim.P. Proper construction of § 879(a), as part of a comprehensive scheme for the control of drug abuse, reveals that Congress meant to impose no requirement of a special showing of need for searches conducted at night.

   467c. Search Incident to a Custodial ArrestUnited States v. Robinson, _____ U.S. ___, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973): Following a full custody arrest for driving while his license was revoked, defendant was searched and illicit drugs were found in his possession. He moved to suppress on the grounds that the search was illegal.

   The Court ruled that a full search of the person pursuant to a lawful custodial arrest is prima facie reasonable and need not be justified by the need to seize weapons or prevent destruction of evidence of the crime for which the arrest is made. Because a full search of the person incident to a lawful custodial arrest "is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that Amendment," there need be no case-by-case adjudication of the reasonablesness of such searches.

   Marshall, with whom Douglas and Brennan joined, dissenting, decried the majority's foresaking the "case-by-case analysis characteristic of our Fourth Amendment decisions" and asserted that the validity of a warrantless search is the kind of question which can only be decided in the concrete factual context of the individual case.

4. Search Incident to a Discretionary Custodial Arrest

   Gustafson v. Florida, _____ U.S. ___, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973): Following a discretionary arrest for driving without his driver's license in his possession, petitioner was searched and drugs were found in his possession. Petitioner attempted to differentiate Robinson on the basis that in the instant case there were no police regulations which required the officer to effect an arrest for this offense, nor were there police department regulations requiring full-scale body searches upon arrest in the field.

   In answer, the Court said: "We do not find these differences determinative of the constitutional issue," and re-emphasized that it is the fact of the custodial arrest which gives rise to the authority to search.

   Powell concurred in Robinson and Gustafson on the grounds that a person subjected to a custodial arrest retains no significant Fourth Amendment interest in the privacy of his person.

   468e. Delayed Search Incident to ArrestUnited States v. Edwards, ___ U.S. ___, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974): The morning after an 11:00 p.m. arrest and subsequent incarceration of the defendant, a warrantless seizure was made of his clothing, which was believed to contain evidence of the crime.

   The Court ruled that once the defendant is lawfully arrested and is in custody, the effects still in his possession that were subject to search at the time and place of his arrest may lawfully be searched and seized without a warrant even though a substantial period of time has elapsed between the arrest and administrative processing and the seizure. The dissent asserted that for a search to be justified as incident to arrest, it must be "substantially contemporaneous with the arrest." Stoner v. California, 376 U.S. 483 (1964).

6. Warrantless Car Search

   Caldwell v. Lewis, ___ U.S. ___, 94 S.Ct. 2464, 41 L.Ed.2d _____ (1974): The defendant was arrested under warrant after being interrogated at the police station, and his car keys and parking lot claim check were taken by the police. His automobile was then towed from the lot and impounded. The Court held that the exterior search of an automobile in which paint scrapings were taken and the tires examined is not unreasonable, where probable cause existed to believe the automobile was used in the commission of a crime.

   This is not a search which implicates "traditional considerations of the owner's privacy interest" nor one "which the interposition of a warrant requirement is meant to protect." The majority observed that "[t]he search of an automobile is far less intrusive of the rights protected by the Fourth Amendment than the search of one's person or of a building.... One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's...