Journal of Criminal Law and Criminology

Volume 60 | Issue 2 Article 7

1969

Federal Procedure for Court Ordered ElectronicSurveillance: Does It Meet the Standards of Bergerand KatzStephen Linzer

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Recommended CitationStephen Linzer, Federal Procedure for Court Ordered Electronic Surveillance: Does It Meet the Standards of Berger and Katz, 60 J.Crim. L. Criminology & Police Sci. 203 (1969)

COURT ORDERED ELECTRONIC SURVEILLANCE

Confessions constitute a sensitive and hardproblem for law enforcement agencies and for thecourts. Without a confession in evidence juries willbe forced to determine guilt on a factual recon-struction of the act and not on the basis of whatan accused said. Confessions would still be usefulin the process of gathering the basic fact founda-tion but would have less an impact on the trial.If the judge decides before trial to exclude theconfession then the efficiencies of the joint trialcan be retained. Another way to look at thisfactor would be to consider how seriously would itprejudice the prosecutor's case to exclude theconfession from evidence. This would highlight thebasic decision being made: balancing the interestsof fairness for the codefendant against the state'sinterest in using a confession in a joint trial.

The three aforementioned factors which wererelied upon in Delli Paoli are still relevant andeffective indicia of possible prejudice to thecodefendant if used the way here suggested. Thetwo other Delli Paoli factors-that the separateinterest of the defendant is repeatedly emphasizedthroughout trial, and that the record does notshow confusion on the part of the jury-havelittle, if any, remaining weight. Bruton held thatlimiting instructions emphasizing the separateinterests of the defendants are not enough toprotect their rights. Indications of jury confusion

no longer would be relevant in the suggestedpretrial procedure. Even during the trial theconfusion and the source of the confusion wouldbe hard to determine and would not be a good basisupon which to measure the extent of fairness in ajoint trial.

This pretrial procedure would not be an addedburden on the court's time when weighed againstthe time that would otherwise be taken up innumerous retrials of misjoined cases. If the de-fendant never makes a motion to sever until thetrial starts, the burden would rest on him toshow that the trial judge clearly abused his dis-cretion under a rule such as Federal Rule 14permitting the joint trial.

It is hard to foresee whether this plan would beviable and useful in all situations, but an attemptshould be made to preserve the advantages of thejoint trial. Law enforcemen: agencies are goingto be forced to depend less on confessions and itwould be over-ambitious and wasteful for theprosecutor to demand the inclusion of an un-necessary confession at the cost of the benefits ofthe joint trial. Bruton reflects the Court's con-tinulng sensitivity towards the problems involvedin securing and using confessions but it alsodevelops an approach which will reduce theopportunity for both the state and the defendantto benefit through. the use of the joint trial.

FEDERAL PROCEDURE FOR COURT ORDERED ELECTRONICSURVEILLANCE: DOES IT MEET THE STANDARDS OF

BERGER AND KATZ?

STEPHEN LINZER

Recent criminal law decisions of the UnitedStates Supreme Court have displayed a growingconcern for the individual in society and for hisright to be free from governmental intrusions uponhis privacy.1 At the same time, there has been anawareness on the part of individual members of theCourt that crime, specifically organized crime, isgrowing rapidly and can only be controlled andlimited by effective law enforcement procedures.2

1 The legal concept of a right to privacy was dis-cussed by Warren and Brandeis, The Right to Privacy,4 H~Av. L. REv. 193, 198 (1890). See, e.g., Griswold v.Connecticut, 381 U.S. 479 (1965).

2 See, e.g., Berger v. New York, 388 U.S. 41, 113-14(1967), White, J., dissenting.

These two considerations-the right to privacy andthe need to stop the growth of crime-are at con-flict in the current controversy over the use ofelectronic surveillance' to aid in the investigationof serious crime.

Because of the nature of their operations andthe need for secrecy, criminal groups utilize aminimum of written communications. However,the diversity of their enterprises, the large number

3As used, electronic surveillance includes eaves-dropping, wiretapping, and all techniques or devicesby which a person is able to hear or record the com-munications of others. For a history of electronicsurveillance see DAsr, KowLrToN, and SCHwARTZ, THEEAVESDROPPERs, 23-34 (1959).

1969]

STEPHEN LINZER

of accomplices or employees, and the great dis-tances between segments of the organization, makethe telephone the main means of communication.As a result, electronic surveillance techniques,which include mechanical or electrical eaves-dropping and wiretapping, may provide the evi-dence to convict members of organized criminalgroups.

4

The President, Congress, and the SupremeCourt have recently taken positions on the subjectof electronic surveillance in an attempt to create aconsistent federal position on the law enforcementtechniques to be employed in effectively controllingorganized crime. The objective of this comment isto examine the recent activity of Congress and theSupreme Court with regard to electronic surveil-lance.

Since past Supreme Court decisions failed toprovide an adequate standard to which law en-forcement officials could conform, electronicsurveillance techniques were used with uncer-tainty.' In Olmstead v. United States,6 the first

case to consider the status of wiretapping, theSupreme Court held that the tapping of telephonewires leading from the residences of the defendantswas not a search within the meaning of the FourthAmendment. In finding that the evidence obtainedwas admissible, the Court stated that the Constitu-tion did not forbid such activities unless there hadbeen an actual unlawful entry. In addition, theCourt held that the Fourth Amendment appliedonly to "material" objects; therefore, a conversa-tion passing over a telephone wire could not beseized within the meaning of that amendment.

4 PRESWENT'S COMMISSION ON LAw ENFORCEMNTAND ADMINISTRATION or JusTICE, THE CHiLLENGE OFCRIME IN A FREE SOCIETY 201 (1967). See also WESTIN,PRIvAcY AND FREEDOM 77 (1967):

Even though any reader of newspapers knows thatwiretapping goes on in the United States, it is stillalmost impossible to conduct a business, engage inpolitics, participate in civic groups, or even run theMafia without resorting to the telephone.

For a discussion of the extent to which members oforganized criminal groups who attended the Ap-palachian meeting in 1957 correlated their activities bytelephone, see SELECT COMMITTEE ON IMPROPER

AcTviTrIES IN THE LABOR OR MANAGEMENT FIELD, S.REP. No. 1139, 86th Cong., 2d Sess., pt. 2, 488 (1960).For a detailed description of the current devices andtechniques, see WESTN, supra at 73-78; DASH, supranote 3, at 305-79.

5See Westin, The Wire-Tapping Problem: AnAnalysis and a Legislative Proposal, 52 CoLum. L. Rzv.165 (1952), and Note, Eavesdropping, Wiretapping, andthe Law of Search and Seizure: Some Implications of theKatz Decision, 9 ARiz. L. REv. 428 (1968).

6 277 U.S. 438 (1928).

At the time the Olmstead case was decided therewas no federal law specifically aimed at wiretapping.In 1934, however, when the Federal Communica-tions Act was passed by Congress, section 605provided that:

no person not being authorized by the sendershall intercept any communication and di-vulge or publish the existence, contents, sub-stance, purport, effect or meaning of suchintercepted communication to any person...7

Several years after the enactment of the FederalCommunications Act, the Supreme Court, inNardone v. United States, 8 interpreted section 605to prohibit interception and divulgence of telephoneconversations, and any evidence obtained therebywas inadmissible in federal courts. The decisionwas not founded on constitutional grounds, butrather on the Court's supervisory powers overfederal courts and officers. In the second Nardonecase,9 the Supreme Court went further and heldthat section 605 barred not only evidence obtaineddirectly by wiretapping but also evidence obtainedby use of leads secured by wiretapping. Other in-terpretations of section 605 extended its coverageto interception and divulgence of intrastate as wellas interstate calls,"0 to state law enforcement offi-cers," and, more recently, to suppression in statecourts.12

In the area of electronic or mechanical eavesdrop-ping ("bugging"), as distinguished from wiretap-ping, the Supreme Court established the doctrinethat evidence procured by electronic eaves-dropping devices became inadmissible only whenthere had been an unauthorized physical invasionof the defendant's premises. In Goldman v. UnitedStates 3 the Court found that the use of a detecta-phone placed against the partition wall of the de-fendant's office in order to overhear conversationsdid not violate the Fourth Amendment since therewas no physical intrusion into the office. The

7 48 STAT. 1103 (1934), 47 U.S.C. § 605 (1964). Thisgeneral language was taken from the Radio Act of1927 and was not intended to deal with the problemsof telephone tapping. See the testimony of ProfessorAlan Westin at the Hearings Before the Subcomitteeof Constitutional Rights of the Senate Committee onthe Judiciary, 85th Cong., 2nd Sess., pt.2 at 195, May28, 1958.

8 302 U.S. 379 (1937).'308 U.S. 338 (1939).10 Weiss v. United States, 308 U.S. 321 (1939).1 Benanti v. United States, 355 U.S. 96 (1957)."Lee v. Florida, 392 U.S. 378 (1968)."3 316 U.S. 129 (1942).

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holding that a finding of no "trespass" foreclosedFourth Amendment considerations was re-affirmedin Ot Lee v. United States" when the Court decidedthat an informer could be wired for sound totransmit a suspect's statements to officers waitingwith a receiver outside the building.

In 1961, in Silverman v. United States,15 theCourt for the first time specifically held that eaves-dropping accomplished by an unlawful invasion ofa constitutionally protected area violated theFourth Amendment. A "spike mike" was insertedinto a heating duct to pick up conversations inother parts of the building. While emphasizingthat the eavesdropping was accomplished bymeans of an unauthorized physical penetrationinto the premises, the Court also found that thescope of the Fourth Amendment reached "in-tangible" objects and that the interception of con-versations could constitute a search and seizure.

Soon after, however, the Court showed indica-tions that an actual physical penetration into aconstitutionally protected area might not be de-terminative in the area of eavesdropping. In Lopezv. United Statesi6 the Court held that there was noFourth Amendment violation when an internalrevenue agent, invited into the defendant's office,recorded a bribe offer on a small tape recorderconcealed on his person. In the decision, the Courtdid not rely solely on the absence of a trespass asit had in Ot Lee, which involved a similiar factsituation; rather, it found that there bad been noeavesdropping in the proper sense of the term asthe agent could have heard the conversation with-out the aid of the listening device. The Courtfurther emphasized that the defendant had as-sumed the risk that his conversation would be re-produced in court with or without the aid of theelectronic device.

This was the state of the law when, recently, thecontroversy surrounding electronic surveillancewas cast in a new perspective. In two cases,Berger v. New York17 and Katz v. United States,"8 theSupreme Court departed from previous treatmentsand rewrote the law relating to electronic surveil-lance. Berger,9 which tested the validity of NewYork's eavesdrop statute,2 concluded that the

14 343 U.S. 747 (1952).15 365 U.S. 505 (1961).16 373 U.S. 427 (1963)."388 U.S. 41 (1967).18 389 U.S. 347 (1967).19 For our purposes the facts are not important.

They may be found at 388 U.S. 44-45.20 N.Y. CODE CRI. PRoc. § 813-a (1957). A new

eavesdropping statute written to conform to the

statute was so broad that it allowed a trespassoryintrusion into the constitutionally protected areaof privacy and thus was violative of the Fourthand Fourteenth Amendments3.

While stating that New York's statute, whichrequired a court order, satisfied the Fourth Amend-ment's command that a neutral and detachedauthority be interposed between the police andthe publicn the Court found the statute deficienton its face in several respects. The statute failed tomeet the Fourth Amendment standard that awarrant must describe with particularity "the placeto be searched, and the persons or things to beseized." 2 It lacked a provision for a detailed de-scription of the type of conversation sought, whichis necessary for court ordered wiretapping in orderto indicate the government's specific objectivesand limit the officer executing the warrant.24

Further, the Court stated that the order shouldauthorize one limited intrusion rather than aseries or continuous surveillance; 25 a new ordermust be issued when an officer seeks to resume asearch. 2 Also, the officer must execute the order

Berger decision has since been enacted into law inNew York. See 3 CR4m. L. REP. 2249; N.Y. CODECznr. PRoc. §§ 814--25(Supp. 1968).

21388 U.S. 41, at 44. In a case currently before theCourt, Kaiser v. New York, 4: Cr. L. 4152-53, thissame New York statute is involved. With regard to theretroactive effect of Katz and Berger, the Court isbeing asked to decide if the Fourth and FourteenthAmendments bar admission at a state criminal trial ofevidence gathered in accordance with a wiretap orderissued under a statute subsequently declared un-constitutional.

22 388 U.S. at 54, citing Johnson v. United States, 333U.S. 10, 14 (1948).

"The Fourth Amendment of the United StatesConstitution reads:

The right of the people to be secure in their persons,houses, papers, and effects, against unreasonablesearches and seizures, shall not be violated, and noWarrants shall issue but upon probable causesupported by Oath or Affirmation, and particularlydescribing the place to be searched, and the personsor things to be seized.

The Court quoted with approval the language inOsborn v. United States, 385 U.S. 323,330 (1966), thatallowed the admission into evidence of a recordingobtained by eavesdropping because the authorizationof the judges was "based upon a detailed factualaffidavit alleging the commission of a specific criminaloffense directly and immediately affecting the ad-ministration of justice.., for the narrow and par-ticularized purpose of ascertaining the truth of theaffidavit's allegations." 388 U.S. at 57.

24 388 U.S. at 57.251 Id. The Court also stated that the authorizationfor two months of eavesdropping is the equivalent ofa series of intrusions, searches, and seizures pursuantto a single showing of probable cause. Id. at 59.

26 Id. at 57, 59. The Court said that an extensionmust be based on a new and present determination ofprobable cause.

STEPHEN LZNZER

with dispatch7 and make a return on it, indicatingthe manner of execution and the materials seized.nFinally, there must be a showing of exigent cir-cumstances in order to avoid the requirement ofnotice to the subject of the search. 29 As a result ofthese unalterable standards, Mr. Justice Black,dissenting, stated that "it seems obvious... thatthe Court's holding by creating obstacles thatcannot be overcome, makes it completely impossi-ble for the State or Federal Government ever tohave a valid eavesdropping statute." 0

Justice Black's fears were partially abated by theCourt's subsequent decision in Katz v. UnitedStates" which implied that a narrowly drawnelectronic surveillance statute could be con-stitutional if the requirements of the FourthAmendment were met.32 In Katz, the defendant wasconvicted for transmitting wagering informationby telephone across state lines in violation of 18U.S.C. § 1084. The defendant's end of the conver-sation was overhead by F.B.I. agents who hadattached an electronic listening and recordingdevice to the outside of the public telephone booth.Evidence of his conversation was introduced attrial. The Supreme Court, in reversing the de-cision of the Court of Appeals,3 3 specificallyrejected the test of a "constitutionally protectedarea" which it had employed in the past34 andstated that "the Fourth Amendment protects

27Id. at 57, 59-60. With regard to execution, theCourt found the New York statute defective in notproviding for termination of the eavesdrop once theconversation sought was seized.

3 Id. at 57.21 Id. at 60.30 Id. at 71.31389 U.S. 347 (1967).3 This position is not shared by several writers who

have reviewed the Katz decision. See, e.g., Schwartz,Electronic Eatesdropping-What the Supreme CourtDid Not Do, 4 Can. L. BuILL. 83, 89 (1968).

"The Supreme Court often moves in mysterious ways.Because policy-making on a case by case basisrestricts the Court to the particular facts of the casebefore it, its decisions are often merely suggestiverather than definitive, settling only the obviouslyimmediate, while unsettling the obviously im-minent .... The only legal effect of the two decisionsis to do what the Court has done many times before:to piece out on a case by case basis, the implicationsof certain basic principles. In the area of electroniceavesdropping, that principal remains after Katzwhat it was before and after Berger: the FourthAmendment permits only a narrowly circumscribedsearch and seizure of specific items."

369 F.2d 130 (9th Cir. 1966).34 See Silverman v. United States, 365 U.S. 505, 510,

512 (1961), Lopez v. United States, 373 U.S. 427, 438-39 (1963), Berger v. New York, 388 U.S. 41, 57 (1967).

people, not places." 1 It then redefined theapplicable Fourth Amendment standard:

What a person knowingly exposes to thepublic, even in his own home or office, is not asubject of Fourth Amendment protection. Butwhat he seeks to preserve as private, even inan area accessible to the public, may be con-stitutionally protected.3 6

Therefore, the Court concluded, the government'ssurveillance violated the privacy upon which thedefendant had relied while using the telephonebooth and thus constituted a "search and seizure"within the meaning of the Fourth Amendment.nAs a result, the activities of the government had tobe considered within Fourth Amendment stand-ards. The Court reemphasized the Berger guidelinesand presented a coherent package of requirementsfor the admissiblity of evidence resulting fromelectronic surveilance.-s

In reaffirming the requirement for judicial au-thorization, the Court stated that a constitutionalauthorization for electronic surveillance could beobtained:"7

It is clear that this surveillance was so nar-rowly circumscribed that a duly authorizedmagistrate, properly notified of the need forsuch investigation, specifically informed ofthe basis on which it was to proceed, anddearly apprised of the precise intrusion itwould entail, could constitutionally haveauthorized, with appropriate safeguards, thevery limited search and seizure the Govern-ment asserts in fact took place.40

35 389 U.S. at 351. Preceding this statement, theCourt had said that the Fourth Amendment could notbe translated into a general constitutional right to pri-vacy. That Amendment protects individual privacyagainst certain types of governmental intrusion, but itsprotections go further and often have nothing to dowith privacy at all. Id. at 350.

36 389 U.S. at 351-52.17 Id. at 353.'7Evidence illegally obtained can not be used in

federal court, Boyd v. United States, 116 U.S. 616(1886), or in state court, Mapp v. Ohio, 367 U.S. 643,655 (1961).

19 Compare supra note 32.40 389 U.S. at 354. This portion of the decision has

resulted in much controversy. Advocates of electronicsurveillance point to it as an expression of approval fora narrowly circumscribed, court ordered search. How-ever, critics of electronic surveillance cite this sentenceas a limiting factor--suggesting that a search so limitedas in Katz was the only acceptable kind:"Katz thus permits eavesdropping in one of the raresituations where it can be limited-a bug on one side

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However, since the government agents in Katzfailed to secure a court order and failed to make areturn on their interceptions, the Court would notsustain their actions.4 In the important qualifica-tion of the need for notice--an element which hadpreviously been considered a necessity in the issu-ance of search warrants--the Court recognizedthat while a conventional warrant ordinarilynotifies the suspect of the search, this requirementmay be omitted in an authorized electronic sur-veillance when the announcement would allow theescape of the suspect or the destruction of criticalevidence.43 Since electronic surveillance is success-ful only when the suspect is deprived of notice, thisqualification was necessary.

Even though the Berger and Katz decisions pro-vided a constitutional outline of the safeguardsnecessary to conduct a legitimate Fourth Amend-ment search and seizure, they did not enunciate auniform procedure for federal agencies to follow ineavesdropping and wiretapping. The push for ef-fective' legislation= " in this area culminated inJune, 1968, when Congress, after much delibera-tion and discussion, passed the "Omnibus CrimeControl and Safe-Streets Act of 1968" containingeleven principal sections (Titles).4' Title III,4

of conversations which take place in a sporadicallyused place that cannot be easily used by more thanone person, and where the bug is limited to the oc-casions that the suspect actually uses the buggedpremises."

Schwartz, supra note 32, at 83.41389 U.S. at 356-57."See Donnelly, Electronic Eavesdropping, 38 Nom

DA=s LAW. 667, 679 (1963).43 389 U.S. at 355 citing Ker v. California, 374 U.S.

23, 37-41 (1964).44 Prior to the Supreme Court's decision in Berger,

June 12, 1967, the Federal Wire Interception Act (S.675) had been introduced by Senator McClellan onJanuary 25, 1967. On February 8, 1967, PresidentJohnson had sent to Congress his Right of Privacy Act(S. 928) which outlawed electronic surveillance exceptin national security cases. After Berger was decided,Senator Hruska introduced the Electronic Surveil-lance Control Act of 1967 (S. 2050).

45 Pub. L. No. 90-351, 90th Cong., 82 Stat. 197 (June,1968). The eleven titles are:

Title I-Law Enforcement AssistanceTitle 11-Admissibility of Confessions, Reviewa-

bility of Admission in Evidence of Confessions inState Cases, Admissibility in Evidence of EyeWitness Testimony, and Procedure in Obtaining-Writs of Habeas Corpus

Title rn-Wiretapping and Electronic SurveillanceTitle IV-State Firearms Control AssistanceTitle V-Disqualification For Engaging in Riots and

Civil DisordersTitle VI-Confirmation of the Director of the Fed-

eral Bureau of Investigation.Title VII-Unlawful Possession or Receipt of Fire-

arms

the focus of this discussion, represents a permissivescheme of court ordered electronic surveillancewhile complying with the Supreme Court decisionsin Berger and Katz. It has two fundamental pur-poses: protecting the privacy of wire and oralcommunications and delineating on a uniform basisthe circumstances and conditions under which theinterception of wire47 and oral18 communicationsmay be authorized.

49

To assure the privacy of oral and wire communi-cations, Title III expressly prohibits all wiretappingand other forms of electronic surveillance by per-sons other than duly authorized law enforcementofficials engaged in the investigation or preventionof specified types of crimes,50 and allows law en-forcement surveillance only after authorization ofa court order obtained upon a showing and find-ing of probable cause.5' This prohibition is sub-ject to four exceptions." Title III also bans the

Title VIII-Providing For An Appeal By the UnitedStates From Decisions Sustaining Motions To Sup-press Evidence

Title IX-Additional Grounds For Issuing WarrantTitle X-Prohibiting Extortion and Threats In the

District of ColumbiaTitle XI-General Provisions.46 Title 11I is essentially a combination of S. 675 and

S. 2050 mentioned supra note 44.47 Wire communication means any communication

made in whole or in part through the use of facilitiesfor the transmission of communications by the aid ofwire, cable, or other like connection between the pointof origin and the point of reception furnished or oper-ated by any person engaged as a common carrier pro-viding or operating such facilities for the transmissionof interstate or foreign communications. 18 U.S.C.§ 2510 (1).

48 Oral communications means any oral communica-tions uttered by a person exhibiting an expectationthat such communication is not subject to interceptionunder circumstances justifying such expectation. 18U.S.C. § 2510 (2).

49S . REP. No. 1097, 90th Cong., 2d Sess. (1968).60 18 U.S.C. § 25115118 U.S.C. § 2518

The President may obtain information by suchmeans as he may deem necessary to protect the nationfrom attack or hostile acts of a foreign power, to obtainintelligence information essential to the nation'ssecurity, and to protect the internal security of theUnited States from those who advocate its overthrowby force or other unlawful means. 18 U.S.C. § 2511(3). Employees of the Federal Communications Com-mission may, in the normal course of employment,intercept and disclose wire communications in thedischarge of the monitoring responsibilities dischargedby the Commission in the enforcement of Chapter 5of Title 47 of the United States Code. 18 U.S.C.§ 2511(2) (b). Communication common carriers may interceptand disclose wire communications in the normal courseof their employment while engaged in any activitynecessary to the rendition of service, or protection ofthe rights or property of the carrier of such communica-tion. 18 U.S.C. § 2511 (2)(a). Persons acting under

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STEPHEN LINZER

manufacture, distribution, sale, possession, andadvertising of wiretapping and eavesdropping de-vices.1

3

Significantly, the legislative program for elec-tronic surveillance has amended section 605 of

the Federal Communications Act of 1934.54 Theamendment provides an exemption from the tradi-tional prohibitions for persons authorized or per-

mitted by Title III to tap and thus removes the

serious statutory obstacle of section 605. 55 Yet, it

still leaves for consideration the question of how

the Congressional drafters have conformed to the

Supreme Court decisions as they relate to a pro-cedure for authorizing the interception of wire or

oral communications.5 6 An examination of the

relevant provisions demonstrates the attempt

which was made to insure constitutionality.Section 2518 of Title III establishes strict legis-

lative requirements which must be followed by law

enforcement agencies in applying for court authori-zation to intercept wire and oral communications.These provisions reflect both Congress' interpreta-tion of the recent Supreme Court decisions on

electronic surveillance and safeguards which Con-

gress felt were necessary to provide for valid andeffective law enforcement.

An application must be made in writing upon

oath or affirmation to a "judge of competentjurisdiction" 51 stating the applicant's authority to

color of law may intercept wire or oral communicationswhere such a person(s) is a party to the conversationor has been given prior consent to such interception.18 U.S.C. § 2511 (2)(c). See Lopez v. United States,373 U.S. 4-27 (1963), Rathbun v. United States, 355U.S. 107(1957), On Lee v. United States, 343 U.S. 747(1952), Greenawalt, The Consent Problem in Wire-tapping and Eavesdropping, 68 CoLum. L. Rxv. 189(1968).

'z 18 U.S.C. § 2512 (1)(a), (b), (c). Exempted arethe actions of a communications common carrier andits employees or persons under contract with a com-munications common carrier in the normal course ofits business, and any law enforcement officer of theUnited States, a State, or a political subdivision of astate in the normal course of its activities. 18 U.S.C. §2512 (2)(a), (b).

64 See supra note 7.55 47 U.S.C. § 605 as amended by § 803 of the Act.56 Focus will be on section 2518 of Chapter 119,

Title 18 of the United States Code which outlines theprocedure for the interception of wire or oral com-munications. Well written and very similar statutoryschemes along with explanatory notes may be foundin Blakey and Hancock, A Proposed Electronic Surveil-lance Control Act, 43 NOTRE DAus LAW. 657 (1968),A.B.A. PROJECT ON MINDUms STAmDAS FOR CRI-INAL JUSTICE, STANDARDS RELATING TO ELECTRONIC

SURVEILLANCE (Tentative Draft, 1968).57 With regard to federal practice, a "judge of com-

petent jurisdiction" means a judge of a United StatesDistrict Court or a United States Court of Appeals.See 18 U.S.C. § 2510 (9)(a).

make such an application. The need for antecedentjustification before a magistrate is central to the

Fourth Amendment and serves as a precondition

to lawful electronic surveillance 2 The Fourth

Amendment requires only that warrants "be sup-

ported by oath or affirmation." -9 Even though it

makes no mention of the necessity for writing, it

has become a statutory requirement in presentfederal warrant practice.60

Congress has interpreted the Berger and Katzdecisions to require that specific information be

contained in each application. This information is

an affirmative test of the propriety of the investi-

gation in light of traditional Fourth Amendment

principles of search and seizure. Every applicationmust include the identity of both the investigative

or law enforcement officer making the application

and the officer authorizing the application.6' Thisassessment of responsibility is advantageous since

it centralizes in a publicly responsible official the

formulation of law enforcement policy on the use of

electronic surveillance which will avoid the develop-ment of divergent practices. If abuses do result, the

lines of responsibility may be traced to an identifi-able person. 62

In addition, the application is required to include

a complete statement of the facts and circum-

stances upon which the applicant justifies his

belief that the judge should issue the ex parte order.

58 See Berger v. New York, 388 U.S. 41, 54 (1967),Osborn v. United States, 385 U.S. 323, 330 (1966),Silverman v. United States, 365 U.S. 505, 513 (Douglas,J. concurring) (1961). This requirement stems fromthe necessity of protecting the individual from impulsivepolice action:

In their understandable zeal to ferret out crime andin the excitement of the capture of a suspectedperson, officers are less likely to possess the detach-ment and neutrality with which the constitutionalrights of the suspect must be viewed. To provide thenecessary security against unreasonable intrusionsupon the private lives of individuals, the framers ofthe Fourth Amendment required adherence tojudicial processes wherever possible.

Trupiano v. United States, 334 U.S. 699, 705 (1948),McDonald v. United States, 335 U.S. 451, 455-56(1948), United States v. Lefkowitz, 285 U.S. 452, 464(1932).

59 Supra note 13. See Dow v. Baird, 389 F.2d. 882,883(10th Cir. 1968): "There can be no doubt whateverthat the search... was illegal... because it was not'supported by oath or affirmation' as required by theFourth Amendment .... "

60 Sparks v. United States, 90 F.2d. 61 (6th Cir.1937). FED. R. Cans. PRoc. 41.

61 Only the Attorney General, or any AssistantAttorney General designated by the Attorney General,may authorize an application for the interception ofwire or oral communications. 18 U.S.C. § 2516.

62 With regard to fixing responsibility see King v.United States, 282 F.2d. 398 (4th Cir. 1960).

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This statement must include four elements to bevalid: (1) details as to the particular offense thathas been, is being, or is about to be committed; 3

(2) a particular description of the place where, orthe facilities from which, the communication is tobe intercepted; (3) the identity of the persons, ifknown, committing the offense and whose com-munication is to be intercepted; and (4) a par-ticular description of the type of communicationssought to be intercepted u This information ismeant to provide the basis for a determination ofprobable cause by the examining judge.65

Prior to Berger and Katz it had been suggestedthat an inherent problem in obtaining a valid courtorder for electronic surveillance was the inabilityto meet Fourth Amendment requirements ofparticularity.66 However, the application procedureoutlined by Congress is basically a compilation ofthose requirements which the Court had consid-ered and discussed in Berger and Katz.6

The applicant is also required to make a state-ment concerning the circumstances that necessitateresort to electronic surveillance. Appropriate con-siderations are whether other investigative pro-cedures have been tried, whether they are unlikelyto succeed if tried, and whether the alternativesmay be too dangerous. By making this statement,the officer is meeting another firm requirement thatthe Court has enunciated. The purpose of this in-formation is to establish that there exist the "exi-gent circumstances" 1 required in Berger19 and

63 Offenses for which an order may be obtained areset out in § 2516 (1). In Berger, the Court had saidthat a specific offense must be alleged. See supra note 23.

64In Berger, 388 U.S. at 57, the Court had said:"Among other safeguards, the order described thetype of conversation sought with particularity, thusindicating the specific objective of the Govern-ment ...."

65 Findings which are required by 18 U.S.C. § 2518(3)(a), (b), (d).

66"It is doubtful... that a court order authorizingelectronic eavesdropping can comply with the 'war-rant clause'... .The provision of the warrant clausewhich seems to defy compliance is the requirementthat a search warrant must particularly describethe 'things to be seized.' A specific description ofthe conversation to be 'seized' in the future is im-possible since the words have not yet come intoexistence.... Due to the nature of electronic eaves-dropping, it seems apparent that a court order cannot meet the particularization requirement of thewarrant clause... ." Comment, The Constitutional-ity of Electronic Eavesdropping, 18 S.C.L. REV.835, 837 (1966).

67 Supra notes 21-43.6s Mr. Justice Stewart, writing for the majority in

Katz, stated that the magistrate should be properlynotified of the "need" for such an investigation. 389U.S. at 354. It would appear, therefore, that electronicsurveillance should be a selective investigative tech-

Katz79 to justify a search without notice. Tradi-tionally, a subject is given notice by the warrantwhich announces both authority for the search andits purpose7

The application must also state the period of timefor which the interception is required to be main-tained. This requirement must be read in light oflater provisions which establish a thirty day maxi-mum time period 2 and allow for court supervisionduring the time of interception." If the nature ofthe investigation is such that the interceptionshould not be terminated when the described type74

of communication has been first obtained, the ap-plicant must provide a particular description offacts establishing probable cause that additionalcircumstances of the same type will occurY5

Possible misuse of this process is guarded againstby a provision that requires the application for theeavesdropping order to contain facts concerning allprevious applications involving any of the samepersons, facilities, or places specified in the appli-cation, and the action taken by earlier courts. Con-tinuous observation resulting from repeated appli-cations should be prevented by this safeguard. Itwill also enable the examining judge to question re-peated applications and ascertain the need forinterceptions if they have been fruitless in the past.Furthermore, the judge may require the applicantto furnish additional testimony or documentaryevidence in support of the applicationY6

Since Congress appears to have codified effec-tively the requirements set out by the SupremeCourt in Berger and Katz, constitutional objectionsto the application process should have little meritunless the procedure is abused. The restrictivestandards which must be met by the applicantshould effectively insure that there will not be in-discriminate use of electronic surveillance, whileallowing valid interceptions if the appropriate pro-cedure is followed.

nique, used only in cases of "need"-not as a standardinvestigative procedure.

69 388 U.S. at 60.70 389 U.S. at 355-56 n. 16.71 The exception is based upon Ker v. California,

374 U.S. 23, 37-41 (1963), a decision in which theCourt found that prior notice would have resulted inthe destruction of evidence subject to seizure. As aresult, the Court held, as to this question, that noticewas legitimately withheld.

r 18 U.S.C. § 2518 (5).- 18 U.S.C. § 2518 (6).74 18 U.S.C. § 2518 (1)(b) (ii), supra note 64.76 Substantively this provision is very important

and will be discussed in the examination of the timestandards.

76 18 U.S.C. § 2518 (2).

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Section 2518 of Title III grants the judge au-thority to enter an ex parte order for the intercep-tion of either wire or oral communications. Thejudge may deny the application or modify it if hewishes. Before the judge may approve the order,however, Congress has established required find-ings which he must make. Based on the informationprovided by the applicant and any in cameraexamination the judge may have held, the judgemust initially find that there is probable cause77 forbelief that an individual is committing, has com-mitted, or is about to commit a particular crimelisted in Section 2516Y8 In addition, the judge mustdetermine whether there is probable cause to be-lieve that particular communications concerningthe offense will be obtained through the intercep-tion. He must also find probable cause to believethat the facilities, or place, from which the wire ororal communications are to be intercepted arebeing used, or about to be used in connection withthe commission of the listed offense. These findingsof probable cause link the individual, the offense,and a particular place. This avoids the issuance of"blanket authority to conduct general searches" 79

-a practice which the Constitution specificallyrejects in the Fourth Amendment.

To avoid the traditional need for notice to thesubject of the search, the judge must also make adetermination that "special facts" or "exigent cir-cumstances" exist to obviate the requirement.Again this must be based on the information sup-plied in the application and additional evidencethat the judge, in his discretion, may receive.80

If the judge makes the required determinationsand decides to grant the order, Congress has setout the form and inclusions for the order. Thestatutory provision is quite explicit as to the con-tents of the order:

(a) the identity of the person, if known, whosecommunications are to be intercepted;

(b) the nature and location of the communica-

77 Probable cause under the Fourth Amendmentexists where the facts and circumstances within theaffiant's knowledge, and of which he has reasonablytrustworthy information, are sufficient unto themselvesto warrant a man of reasonable caution to believe thatan offense has been or is being committed. Carroll v.United States, 267 U.S. 132, 162 .(1925), Husty v.United States, 282 U.S. 694, 700-01 (1931), Brinegarv. United States, 338 U.S. 160, 175-76 (1949).

78 See supra note 63. This list is criticized by SenatorHart in his separate views in SEN. REP. No. 1097,supra note 49. Compare A.B.A. PRoJEcT FOR MumrSTAD ARrms, supra note 56, at 141-42.

1' 388 U.S. at 58, 389 U.S. at 355-56.80 See supra notes 68, 70.

tions facilities as to which, or the placewhere, authority to intercept is granted;

(c) a particular description of the type of com-munication sought to be intercepted, and astatement of the particular offense towhich it relates;

(d) the identity of the agency authorized tointercept the communications, and of theperson authorizing the application; and

(e) the period of time during which such in-terception is authorized, including a state-ment as to whether or not the interceptionshall automatically terminate when thedescribed communication has been first ob-tained.

81

These specifications are designed to insure that theorder is sufficiently definite so that the executingofficer can follow its directions02

The procedure for obtaining an ex parte order forelectronic surveillance is subject to substantivelimitations that reflect an attempt by Congress toconform to the Supreme Court's guidelines inBerger and Katz. Unfortunately, the Court hasbeen unable to promulgate specific functional rulesin the substantive aspects of wiretapping andeavesdropping. An excellent example of the legalconfusion that results from this situation is thestatutory provision for the time of an electronicsurveillance.

Congress has provided that no order mayauthorize or approve the interception of wire ororal communications for any period of time longerthan is necessary to achieve the objective of theorder, and in no event longer than thirty days.Extensions may be obtained, but only if anotherapplication is properly filed and the judge makesthe required findings. 83 The extension period mustbe no longer than the judge deems necessary toattain the objectives for which it was granted, andin no event, longer than thirty days. Congress hasalso required that every order and extension mustbe executed as soon as possible and conducted insuch a way as to minimize the interception of com-munications not subject to interception under theorder.

Theseprovisions pose manyproblems from a con-

s8 18 U.S.C. § 2518 (4).12 See West v. Cabel, 153 U.S. 78 (1894), Steele v.

United States No. 1, 267 U.S. 498 (1925). Nothingshould be left to the discretion of the officer. Marron v.United States, 275 U.S. 192, 196 (1927).83 New orders or extensions must rest upon a presentfinding of probable cause. See supra note 36, Sgro v.United States, 287 U.S. 206 (1932).

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stitutional, as well as a policy, viewpoint. InBerger, the Supreme Court simply stated that"authorization of eavesdropping for a two-monthperiod is the equivalent of a series of intrusions,searches, and seizures pursuant to a single showingof probable cause." 84 The only affirmative test,appearing in Berger and Katz, is that there shouldbe no greater invasion of privacy than is neces-sary under the circumstances, Mr. justice Harlanattempted to clarify this requirement in hisBerger dissent when he stated that the electronicsurveillance "must be confined in time precisely asthe search for tangibles is confined in space".8 Bythis standard, it is at least arguable that the Con-gress has conformed to this limitation by re-quiring that surveillance terminate when the ob-jective is reached, or at the end of a period imposedby the issuing judge. However, if those who readKatz narrowly are correct in their interpretation,then the federal officer who uses the entire thirtyday period to intercept communications of a sus-pect will have conducted a "general search"through an "indiscriminate dragnet." 11 He willhave picked up all the conversations on the wiretapped or in the room bugged.

Strength for this view is gathered from thelanguage of the Supreme Court in Berger. TheCourt stated that it had in the past, "under specificconditions and circumstances, sustained the use ofeavesdropping devices." 11 For this proposition theCourt cited four cases which involved very cir-cumscribed eavesdropping8 9 In each of these fourcases, as in Katz, the eavesdropping the SupremeCourt approved was carefully circumscribed andlimited to specific conversations which the eaves-dropper knew would take place. The view of thosewho read Katz narrowly is, therefore, that there isno implied Court approval for a thirty day inter-ception such as provided for in Title yi-.10

84 388 U.S. at 59.85 388 U.S. at 57, 389 U.S. at 355.8 388 U.S. at 100.87 See 388 U.S. at 65 (Douglas, J. concurring).8 Id. at 63.9 Goldman v. United States, 316 U.S. 129 (1942),

On Lee v. United States, 343 U.S. 747 (1952), Osborn v.United States, 385 U.S. 323 (1966), Lopez v. UnitedStates, 373 U.S. 427 (1963). In Goldman an F.B.I.detectaphone was installed to overhear four conversa-tions to which an F.B.I. informer was a party. In OnLee an informer wore a radio transmitter for his con-versation with a specific suspect. In Lopez and Osborn,the Supreme Court upheld the use of an eavesdroppingdevice wired to an informer, and used to record theinformer's conversations with a suspect.

90 See, e.g., views of Senator Hart, SEN. REP. No.1097, supra note 49.

On the other hand, those arguing for the reason-ableness of this provision cite the safeguards of thestatute which require that the interception beterminated if the conversation sought is obtained."Any departure from this norm would constitute aviolation of both the order and the law, makingsuch interceptions inadmissible in court. 2 Also,the purpose of the thirty day period is to establisha maximum period to prevent the staleness of theorder, and to insure that the officer either ter-minates his activity at the maximum date or ob-tains an extension. 3 During this period, the Courtmay maintain supervision of the law enforcementofficials' activities through the statutory provis-ion relating to periodic returns on the order. 4 Ithas also been pointed out that, though eavesdrop-ping by its nature involves the indiscriminate re-ception of all conversations, a search under awarrant is equally as indiscriminate in viewing per-sonal effects and, under the "in plain view" rule,equally as damaging to the subject.95 Thus, intheory, it is urged that there is no apparent differ-ence between the two searches.

The resolution of this issue by the Court willundoubtedly be influenced by the facts of the casebefore it. It is, therefore, essential that restraintand intelligent monitoring be exercised by law en-forcement officials for the surveillance to be sus-tained. An "indiscriminate dragnet" will violatethis permissive section.

Congress has also established a procedure forperiodic judicial supervision during a period ofsurveillance. Whenever an order to intercept isgranted, it may require reports to be made to theissuing judge showing what progress has beenmade toward achievement of the authorized ob-jective and whether there is a continuing need forinterception. 6

This requirement continues the judicial super-vision in the area of electronic surveillance by pro-

9118 U.S.C. § 2518 (5) conforming to the standardset out in Katz, 389 U.S. at 354.

92The difficulty in making such a proof in a motionto suppress is obvious-the law enforcement agentswill be the only ones knowing of the violation. 18 U.S.C.§ 2515 prohibits the use, as evidence, of interceptedcommunications when in violation of this Act.

93 See generally, 100 ALR 2d 525 (1965). For analternative time limit suggestion see Westin, supranote 4, at 391-92.

94 18 U.S.C. § 2518 (6)95 Comment, Eavesdropping Orders And The Fourth

Amendment, 66 CoLu.m. L. REv. 355, 374 (1966).96This relates to the requirement that a return be

made on the order, supra note 28, and that the existenceof a "need" be ascertained, supra note 68.

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viding for active judicial participation. 97 When con-sidered with the standards which the applicantmust meet in providing information to the judge,

this "review" would function as an added safe-

guard. Unfortunately, it is stated as a suggested,but not mandatory, provisionY. The need for com-munication between the operator of the intercept

and the issuing judge is seriously undermined bythe failure to make this provision as strict as others

that have been discussed.In cases of emergency, Congress has created a

procedure for interception of communications thatby-passes the provisions that have been discussed.When a specially designated investigative or lawenforcement officer determines:

(a) that an emergency situation exists with

respect to conspiratorial activities threateningthe national security interest or to conspira-torial activities characteristic of organizedcrime that requires a communications inter-

ception before an order authorizing such inter-ception can with due diligence be obtained, and(b) there are grounds upon which an ordercould be entered under this Act, he may inter-cept such communications if a proper applica-

tion is made within forty eight hours after theinterception has occurred, or begins to occur.99

In such an emergency situation, the interception

shall immediately terminate when the communica-tion is obtained or when the application for au-thorization is denied. If the application is denied,or if the interception is terminated without anorder having been issued, the contents of the inter-

ception shall be treated as having been obtained inviolation of the Act, and an inventory served asprovided for in a later provision.'0 0

The provisions of the emergency section relatingto conspiratorial activities characteristic of or-ganized crime would appear to be overly permis-

9 "When a magistrate ... acts as a mere rubberstamp for the police a basic constitutional protectionwith roots deep in our national history is reduced to somany empty words." Dow v. Baird. 389 F.2d. 882,884 (10th Cir. 1968).

93Whenever an order authorizing interception isentered pursuant to this chapter, the order mayrequire reports to be made to the judge who issuedthe order showing what progress has been madetoward achievement of the authorized objectiveand the need for continued interception. Suchreports shall be made at such intervals as thejudge may require.

18 U.S.C. § 2518 (6).99 18 U.S.C. § 2518 (7).1 18 U.S.C. 2518 (8)(d).

sive when read in light of Berger and Katz. Tradi-tionally, searches conducted without warrantshave been held unlawful even though the factsshowed probable cause.'" The Constitution re-quires that an impartial judicial officier be inter-posed between the individual and the police.'0'As a result, searches conducted outside the judicialprocess have been held unreasonable under theFourth Amendment. 103

These general rules governing search and seizureare subject to a few specifically established excep-tions, frequently referred to as emergency situa-tions-the search of a person (and the area underhis control) incidental to a valid arrest, and thesearch of a vehicle where there is probable cause tobelieve that the vehicle is being used to transportcontraband. TM Recognized as justifying the ab-sence of a search warrant, these search situationsstill require a finding of probable cause.9 5 The pro-ponents of the emergency section believe that thestatutory situations will fit within the coverage ofthe Court's decisions establishing these excep-tions.109 However, it would appear that the Courthas foreclosed discussion of such a permissive pro-vision by its language in Katz. The Court stated:'9 '

It is difficult to imagine how any of those ex-ceptions could ever apply to the sort of searchand seizure involved in this case. Even elec-tronic surveillance substantially contem-poraneous with an individual's arrest couldhardly be deemed an "incident" to that ar-

101 Agnello v. United States, 269 U.S. 20, 33 (1925)102 Wong Sun v. United States, 371 U.S. 471, 481-

82 (1963)103 See, e.g., Jones v. United States, 357 U.S. 493,

497-99 (1958); Rios v. United States, 364 U.S. 253,261 (1960); Chapman v. United States, 365 U.S. 610,613-15 (1961); Stoner v. California, 376 U.S. 483,486-87 (1964).'"4 See, e.g., Carroll v. United States, 267 U.S. 132,

153, 156 (1925); McDonald v. United States, 335 U.S.451, 454-56 (1948); Brinegar v. United States, 338U.S. 160, 174-77 (1949); Cooper v. California, 386U.S. 58 (1967); Warden v. Hayden, 387 U.S. 294298-300 (1967).101 "In cases where the securing of a warrant is reason-

ably practicable, it must be used.... In caseswhere seizure is impossible except without war-rant, the seizing officer acts unlawfully and athis peril unless he can show the court probablecause." Carroll v. United States, 267 U.S. 132,156 (1925)

106 "There are exceptional circumstances in which,on balancing, the need for effective law enforce-ment against the right of privacy, it may becontended that a magistrate's warrant for searchmay be dispensed with." Johnson v. UnitedStates, 333 U.S. 10, 14-15 (1948).

'0 389 U.S. at 357-58.

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rest.l 0 Nor could the use of electronic sur-veillance without prior authorization bejustified on grounds of 'hot pursuit'. 109

Note should be made of two recent decisionswhich recognize an "emergency situation" notrequiring either probable cause or a search warrant:Patrick v. State"0 and Vauss v. United States."'Both decisions rest upon a finding that the preser-vation of human life is paramount to the right ofprivacy protected by search and seizure laws andthe accompanying constitutional guarantees. Thus,whenever the police have credible information thatan unnatural death has, or may have, occurredthey may enter and investigate without an ac-companying intent either to seize or arrest." 2 Abroad application of this doctrine could justifyemergency electronic surveillance in cases wherethe "conspiratorial activities" may have resultedin an unnatural death, e.g. kidnapping, murder,and possibly narcotic violations. The statutoryrequirement, however, that there exist "groundsupon which an order could be entered" would stilllimit surveillance to situations based upon a find-ing of probable cause.

With the possible exception of cases involvingunnatural deaths, it would seem that the Courtthrough its language in Katz has indicated that thewarrantless surveillance would be unreasonableunder the Fourth Amendment. Though it was notfaced with a Congressional expression of what con-stituted an emergency situation in Katz, both thebreadth of the statute and the predisposition ofmajority of the Court imply rejection of thissection of the Act.

The Court has been less forceful in dealing withthe demands of national security as an exception

10s In Agnello v. United States, 269 U.S. 20, 30(1925), the Court stated:

"The right without a search warrant contempora-neously to search persons lawfully arrested whilecommitting crime and to search the place where thearrest is made in order to find and seize things con-nected with the crime as its fruits or as the meansby which it was committed, as well as weapons andother things to effect an escape from custody, is notto be doubted."109 Although '[t]he Fourth Amendment does not

require police officers to delay in the course of aninvestigation if to do so would gravely endangertheir lives or the lives of others,' Warden v.Hayden, 387 U.S. 294, 298-99, there seems littlelikelihood that electronic surveillance would be arealistic possibility in a situation so fraught withurgency. 389 U.S. at 358 n. 21.

110 227 A.2d 486 (Del. 1967).M 370 F.2d 250 (D.C. Cir. 1966)."1 227 A. 2d at 489.

to the warrant requirement. In Katz, the Courtmentioned in a footnoteu that it did not reach thequestion whether safeguards other than priorauthorization by a magistrate would satisfy theFourth Amendment in a situation involving na-tional security. The issue is raised in two differentcontexts in the Safe Streets Act. A prior section"4

exempts from the Act the constitutional power ofthe President to take such measures as he deemsnecessary to protect the nation from specified actsof foreign powers or those presenting a clear andpresent danger to the government. But this sec-tion implicitly recognizes that the actions of theExecutive are limited by the Constitution. There-fore, the requirements of the Fourth Amendmentshould apply to the President's actions, as well asto the lower level law enforcement officer."'

The provision for an emergency surveillanceupon a finding that conspiratorial activitiesthreaten the national security is subject to asimilar argument. Mr. Justice Douglas, concurringin Katz, expressed the view that the Executivebranch would not be disinterested or neutral inmatters of national security. Rather, its properfunction is to investigate and prevent breaches ofnational security-the President or the AttorneyGeneral functioning as an adversary in the enforce-ment process. They would, therefore, be unable tooccupy the neutral position of a judge or magis-trate. Mr. Justice Douglas further stated that thereshould be no distinction under the Fourth Amend-ment between types of crimes. As a result, na-tional security cases would involve the same pro-cedural approach as other crimes." 6

Mr. Justice White, on the other hand, inter-preted the Court's footnote as an acknowledge-ment that there are circumstances in which it isreasonable to search without a warrant. Therefore,the Court should not require the warrant procedureand a judge's intervention if the President or theAttorney General have considered the requirementsof national security and authorized electronic sur-

"1 389 U.S. at 358 n. 23.114 18 U.S.C. § 2511 (3). See supra, note 52."5 In Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952), the Court was asked to decidewhether the President was acthig within his constitu-tional power when he issued an order directing theSecretary of Commerce to take possession of most ofthe nation's steel mills. The Court held that the aggre-gate powers of the President, as Chief Executive andCommander of the Armed Forces, did not permit himto act in contravention of the Constitution's separationof powers notion.

116 389 U.S. at 359-60.

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CASE NOTES

veillance as reasonable." 7 In his dissent in Berger,Mr. Justice White asked the crucial question:

If electronic surveillance is a 'general search',or if it must be circumscribed in the mannerthe Court now suggests, how can surreptitiouselectronic surveillance of a suspected Com-munist or a suspected saboteur escape thestrictures of the Fourth Amendment?"8

It is suggested that such surveillance can notescape the dictates of the Constitution unless theCourt is prepared to create classifications of crimesfor the purposes of the Fourth Amendment-aposition apparently without legal precedent." 9

As this comment has sought to emphasize theneed for discriminating and narrowly circumscribedsafeguards in any interception of wire and oral com-munications, it would appear that an even higherstandard is necessary to conduct an electronicsurveillance without an order in an emergencysituation. There is good reason for this. Theability to intercept for forty eight hours without

"7 Id. at 363-64.

118 338 U.S. 116."1 In a case currently before the Supreme Court,

Butenko v. United States, 4 Cr.L. 4053, the oralargument revealed the issues involved in nationalsecurity cases. To the Solicitor General's explanationthat the new law [1968 Safe Streets Act] is written invery general terms and provides that a wiretap, innational security cases, may issue whenever authorizedby the Attorney General, Mr. Justice Black inquired"Are you relying on a Congressional rule, and not theconstitution?"

an order is overly permissive, for while any evi-dence obtained would be in violation of the Actand therefore excluded, its worth as an investiga-tive tool for "leads" and corroborative informationmight justify misuse of this provision. It is difficultto envision situations in which such an "emer-gency" could exist without sufficient time to securea court order.

CONCLUSION

The above examination of those parts of Section2518 which relate to the Supreme Court decisionsin Berger and Katz indicates that the validity ofseveral provisions will depend on the restraint ofinvestigative officials. The serious crime problemin this country demands that instruments neces-sary for law enforcement be fully employed. Never-theless, the possible abuses inherent in such sophis-ticated practices as electronic surveillance requirethat specific limitations be imposed. Congress hassought to provide these standards by closely follow-ing the requirements set down by the Court inBerger and Katz. But serious constitutional ques-tions are raised by those provisions allowing sur-veillance in emergency situations, issues aboutwhich the Court has given little direction.

Police abuse of the provisions of Section 2518, orirresponsibility in carrying out its proceduralscheme, could lead the Court to establish morerigid and severe requirements for eavesdropping, adevelopment that could spell the end of electronicsurveillance as an effective law enforcement tool.

CASE NOTES

An editorial comment accompanying a Note represents the opinion of the student who prepared

the Note and does not necessarily represent the viewpoint of any other member of the Editorial Board

Edited by

Robert L. Greenwald Richard P. Vogelman

SEARCH AND SEIZURE

Exclusionary Rule Held Applicable To CivilCommitment Procedures For Narcotic Addicts-People v. Moore, 446 P. 2d 800 (Calif. S.Ct. 1968).The defendant was arrested for possession ofheroin. He was taken to a jail infirmary and

examined by a doctor. As a result of this examina-tion, a petition was filed to commit him as anarcotic addict or as a person who is in imminentdanger of becoming addicted to narcotics. At thetrial he was found to be in imminent danger ofbecoming a narcotic addict and committed to a

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