Spease v. State

Moylan, J., delivered the opinion of the Court. The appellants, Clifton Spease and Willie Ross, were convicted in the Circuit Court for Prince George’s County by a jury, presided over by Judge Robert B. Mathias, of conspiracy to distribute cocaine. Ross was sentenced to a term of 20 years and Spease, to one of 15 years. The prosecution was the latest episode in the continuing effort of Prince George’s County authorities, spearheaded by Detective Elmer L. Snow, to crack the higher echelons of the apparatus behind the widespread trafficking in illicit drugs in that county.

The evidence at bar is permeated with familiar names from Peterson, Deal and Hunt v. State, 15 Md. App. 478 , 292 A. 2d 714 , and Soles v. State, 16 Md. App. 656 , 299 A. 2d 502 . The first of six assignments of error goes to the denial of the appellants’ pretrial motion to suppress incriminating conversations seized by a court-ordered wiretap. A resume of the probable cause for the issuance of the wiretap order will help place the ensuing discussion of the manner of execution of that order in factual perspective. The focus of the investigation was upon the appellant ²⁷² Ross.

The appellant Spease was caught up in the net thrown about Ross. The wiretap order now under review was issued by Judge Ernest A. Loveless, Jr., on December 8, 1971. The probable cause therefor was contained in the affidavit of Detective Snow. The probable cause began accumulating on April 8, 1971, and continued to accumulate over the ensuing eight months.

It was learned that Ross, who lived at 7404 Walker Mill Road in the District Heights area of Prince George’s County, was a major dealer for the heroin which permeated the Fairmont Heights section of that county. He was the wholesale supplier for Daniel Deal, Shandy Richardson, Jr., Artemus Logan and James Arnett. 1 Throughout the spring of 1971, Ross’s modus operandi was for his retailers to come to his apartment at 7404 Walker Mill Road to purchase their uncut heroin, in wholesale quantities. They would then and there “cut” or dilute the drugs for eventual resale. A discreet surveillance put both the appellant Ross and Daniel Deal together at that address on May 3,1971.

Ross’s 1967 Cadillac was also observed parked on occasion at the intersection of 61st Street and Eastern Avenue in Fairmont Heights, an intersection frequently used by drug users as a distribution point. The community there is known as “Junky Hill”. Information coming in from the Narcotics Squad of the Washington Metropolitan Police revealed that Ross had sold $900 worth of heroin to a government undercover agent on May 15, 1971, from an address at 7282 79th Avenue in Landover, Prince George’s County. A second sale of $500 worth of heroin was made to the same undercover agent on June 5, 1971.

This second sale was made from a 1969 Buick, with District of Columbia personalized tags TJS, which Buick had been observed three days earlier, on June 2,1971, parked in front of Ross’s apartment. The heroin obtained on ²⁷³ both May 15 and June 5 was chemically analyzed to be 9.1% pure, a quality of definitely wholesale strength. Street heroin almost universally tested out to be of a strength of 2% or less. On July 13, 1971, the undercover agent who had made the purchases of May 15 and June 5 was shot.

Detective Snow arrested Ross on July 13, 1971, on two charges of distribution of heroin to the undercover agent. Detective Snow confirmed Ross’s address as of that time as 7404 Walker Mill Road. On November 17, 1971, Detective Snow learned reliably that Ross was still dealing heavily in both heroin and cocaine. As a result of the July 13 arrest, however, Ross had radically changed his modus operandi.

He was apprehensive of police interference and no longer kept the drugs at his home A prospective purchaser would have to telephone Ross at home. Ross would then direct the purchaser to go to a specified location, Ross would then call a third person to meet him and the purchaser at that location. The third person would bring the drugs from its rotating “stash”. The designated meeting places would generally be a motel or a location in Palmer Park, Maryland.

Discreet surveillance had picked up the appellant Ross, the appellant Spease, one Gloria Holmes and an unknown fourth person at the Howard Johnson’s Motel in Cheverly on October 3. Gloria Holmes was a known addict. Police records revealed that narcotics complaints had been lodged against Spease. A records check with the Howard Johnson’s Motel revealed that Ross had been a frequent guest there.

It was established that Ross, post-July 13, would sell drugs only to retail dealers and only in wholesale quantities. He would have no contact with ultimate users. The drugs sold would be of an unadulterated, higher quality and the sales usually involved sums of money in excess of $500. Ross would deal only with persons known to him.

Automobile surveillance turned out to be unavailing. Ross regularly used evasive driving techniques — driving around the block several times watching in his rear-view mirror, making unexpected U-turns in the middle of little-traveled streets, etc. To discourage even neighborhood surveillance, Ross had ²⁷⁴ installed a closed circuit television camera mounted on a house across the street, focused on his own apartment with a monitor inside the apartment. After the modus operandi changed on July 13, even Detective Snow’s highly credible confidential source was cut off from direct contact with Ross. The entire operation had gone telephonic.

On December 8, 1971, Judge Loveless issued the order authorizing Detective Snow, and necessary assistants, to tap Ross’s home phone, placing the tap as soon as feasible after 4 p.m. on December 10, 1971, and continuing the tap through 8:30 p.m. on December 24, 1971. Because the investigation was aimed at all possible buyers in the network emanating from Ross and also at the unknown supplier of Ross, the order provided that the interception should not automatically terminate when some incriminating evidence had been obtained but should continue until all aspects of the illicit operation had been revealed. The tap was placed at 12:25 p.m. on December 11. Progress reports were made to Judge Loveless on the fifth, tenth and fifteenth days of the intercept.

On December 16, the State’s Attorney reported to the judge that during the first five days of the tap, 130 telephonic interceptions had been made, of which total approximately 25 calls were believed to be involved in the drug conspiracy. Surveillances were then established at a number of locations revealed by the intercepted calls. On December 21, the State’s Attorney reported to the judge that during the second five days of interception, approximately 234 telephonic interceptions had been made, of which total approximately 20 phone calls were believed to be involved in the conspiracy. On December 27, the final report to the judge revealed that during the last four days of the intercept, approximately 190 telephonic interceptions had been made, of which total approximately 10 calls involved conspiratorial operations.

The order to intercept the telephonic communications was issued in full compliance with Art. 35, Sec. 94, of the Annotated Code of Maryland, and with Title III, Omnibus Crime Control and Safe Streets Act of 1968, Chapter 119, Title 18, United States Code, §§ 2510-2520 . The appellants do ²⁷⁵ not challenge the constitutionality of the statutes authorizing wiretaps. See State v. Siegel, 266 Md. 256 , 292 A. 2d 86 ; State v. Siegel, 13 Md. App. 444 , 285 A. 2d 671 ; Pennington v. State, 19 Md. App. 253 , 310 A. 2d 817 . Nor do the appellants challenge the facial adequacy of the wiretap order itself.

There is, therefore, no initial inadequacy tainting all subsequent police action under the order, as in State v. Siegel, supra, or in State v. Lee, 16 Md. App. 296 , 295 A. 2d 812 . 2 The appellants confine their attack to the manner in which the order was executed. They are chagrined in two regards. They claim that the police, in executing the order, failed to comply with Title 18, § 2518 (5), which provides, inter alia: “Every order and extension thereof . . . shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter . . .” Additionally, they claim that the police also failed to comply with § 2518 (8) (d), which provides, in pertinent part: “(d) Within a reasonable time but not later than ninety days after the filing of an application for an order of approval under section 2518 (7) (b) which is denied or the termination of the period of an order or extensions thereof, the issuing or denying judge shall cause to be served, on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice, an inventory which shall include notice of— ²⁷⁶ (1) the fact of the entry of the order or the application; (2) the date of the entry and the period of authorized, approved or disapproved interception, or the denial of the application; and (3) the fact that during the period wire or oral communications were or were not intercepted.” The Minimization Question The Compliance Issue In our judgment, the appellants cannot prevail in their contention that the failure to minimize the interceptions mandated the suppression of incriminatory conversations. We believe this is so for two reasons.

In the first place, we hold, as did Judge Mathias below, that the State did not fail to comply with that portion of Judge Loveless’s order which provided that the wiretap should be: “conducted in such a way as to minimize the interception of communication not otherwise subject to interception.” The evidence produced at the suppression hearing was somewhat skimpy as to the usual use made of the telephone located at 7404 Walker Mill Road. We have simply the raw statistics as to the total number of calls, averaging out to 40 per day. No information was provided as to what adults, if any, other than Ross lived at 7404 Walker Mill Road and as. to what use they might typically make of the phone. No information was provided as to the number of children in the apartment or as to their normal use of the phone.

No information was provided as to Ross’s telephone habits in general or as to hie specific use of the telephone during the period of the intercept for -non-criminal purposes. The “improper invasion of privacy” posited by the appellants is presented to us as a nakedly abstract proposition. Detective Snow testified that four agents maintained a seven-day-a-week, twenty-four-hour-a-day monitoring regimen, working in twelve-hour shifts. The listening post ²⁷⁷ was established at a Holiday Inn near the Andrews Air Force Base.

Whenever the telephone receiver at 7404 Walker Mill Road was picked up, a voice activator at the listening post automatically triggered a Sony tape recorder. The human monitors would enter into a log book the name of the agent supervising the interception at that moment, the time of the call, the fact of whether the call was an incoming one or an outgoing one, the footage on the tape recorder at the time the call began, and such basic characterizations as whether the call was personal or drug-related, etc. Two basic operations were involved in the interception process — (1) the monitoring of the conversation by the human agent and (2) the recording of the conversation on tape. Although all calls were listened to by the agents, Detective Snow testified that the tape recorder was turned off whenever it became clear that the call was completely innocent in nature. Even as to the act of listening, he testified that he “never really paid attention to what children were saying once [he] knew that it was from a child to a child.” Presumably, he kept even an inattentive ear “at the half-cock” lest an adult suddenly replace a child on the instrument.

As to the necessity for maintaining the human monitoring on facially innocuous conversations, Detective Snow explained that “when a drug code is used or replacement words are used for an actual narcotic, it only takes one word or two words to throw into a conversation where we would know that it was a drug conversation or drug related.” In a lexicon where “girl,” “doll,” “she,” and “the baby” means “cocaine”; where “boy,” “horse,” “Harry,” and “ship” means “heroin” and where “I got that thing” means “The contraband has been delivered,” the normal measure of innocuousness is severely strained. Detective Snow affirmatively testified that no conversation with an attorney, with a clergyman, with a psychiatrist or with a medical doctor was ever intercepted. We believe that the turning off of the tape recorder on clearly non-criminal conversations and the essential “tuning out” on the children’s conversations represent a bona fide attempt at as much minimization as the investigative ²⁷⁸ problem would allow. There was no evidence that conversations between adults other than Ross were ever intercepted.

We are persuaded that the degree of vigilance here employed, in dealing with a cautious and chary operative involved in a subtle and widespread conspiracy, was not unreasonable. In judging the reasonableness of the tactical decisions made by an investigator in the field, hindsight is no criterion. The on-the-spot dilemma facing the investigator is well summarized in United States v. LaGorga, 336 F. Supp. 190 (W.D. Pa. 1971), at 196: “[I]t is often impossible to determine that a particular telephone conversation would be irrelevant and harmless until it has. been terminated. It is certainly not unusual for two individuals using the telephone to discuss social matters or items of general interest before getting to the precise point which is to be covered in the call.

Similarly, when a call is made to a residence, the telephone is often answered by a young child who will turn it over to one of the adult members of the household at some point in the conversation. It is also rather common that a telephone conversation initially between two children will later develop into a discussion between adults. It is all well and good to say, after the fact, that certain conversations were irrelevant and should have been terminated. However, the monitoring' agents are not gifted with prescience and cannot be expected to know in advance what .direction the conversation will take.

It is also true that, during the. early part of the surveillance, it was necessary for the agents- to familiarize themselves with the voices of those who were working with the defendants.” 3 ²⁷⁹ In holding that the minimization order before it had been reasonably complied with, United States v. Bynum, 360 F. Supp. 400 (S.D.N.Y., 1973), found an important factor to have been the periodic progress reports made to the judge who had issued the order and his continuing supervision of the course of the investigation. It eschewed reliance on mere statistical analysis, at 410: “This focus on reasonableness necessarily forces a case-by-case analysis. ... A review of reasonableness primarily involves a careful appraisal of circumstances and not merely a mechanical deference to the suggestive weight of statistics. Even the fact that 100% of the calls made or received during the limited period of surveillance were intercepted, if. this were established, though significant, should not be overestimated.

The determination of whether minimization was achieved in a particular case requires close scrutiny of, inter alia, the type of criminal enterprise being investigated; the scope of that enterprise and the number of participants, known and unknown, involved therein; the number of days tor which electronic surveillance is conducted; the scope of the authorizing order; ” The United States Court of Appeals for the 8th Circuit gave careful attention to the minimization problem in United States v. Cox, 462 F. 2d 1293 (1972). In that case, 20 days of continuous surveillance produced 90 reels of recorded conversations. Many irrelevant conversations were apparently recorded. The court felt that significant factors in the minimization effort were that the judge had limited the order to 20 days rather than the permissible 30 days; that no renewal of the order was requested; that he required a status report from the United States Attorney at five-day intervals during the period of the intercept; and that he ²⁸⁰ gathered an inventory of all taped conversations and promptly sealed both the tapes and the log book.

The facts are remarkably similar to those at bar. The court there quoted, at 1300, from the favorable committee report on the subject of minimization, prior to the enactment of 18 U.S.C. § 2518 (5): “Where it is necessary to obtain coverage to only one meeting, the order should not authorize additional surveillance. Where a course of conduct embracing multiple parties and extending over a period of time is involved, the order may properly authorize proportionately longer surveillance ... What is important is that the facts in the application on a case-by-case basis justify the period of time of the surveillance.” Senate Report No. 1097, 1968 U.S. Code Cong. & Adm.

News, at 2190. In applying the intent of the framers to the minimization question then before it, the court went on, at 1300-1301: “Accordingly, where, as here, the investigation is of an organized criminal conspiracy conversing in a colloquial code, surveillance of most of the telephone calls made during several days does not constitute a failure to minimize simply because in retrospect it can be seen that a substantial portion of them had no evidentiary or investigative value.” For other cases holding that minimization orders had been complied with and discussing the nature of the minimization question, see United States v. Fino, 478 F. 2d 35 (2nd Cir. 1973); United States v. Tortorello, 480 F. 2d 764 (2nd Cir. 1973); United States v. Focarile, 340 F. Supp. 1033 (D. Md. 1972); and United States v. Sklaroff, 323 F. Supp. 296 (S.D. Fla. 1971). We hold that there was adequate compliance with the minimization order in the case at bar. ²⁸¹ The Minimization Question The Sanction Issue Our ultimate holding that Judge Mathias was not wrong in denying the motion of the appellants to suppress incriminatory conversations would not be otherwise, however, even if we were to assume that Detective Snow, and his fellows, had failed to comply with the minimization order. We add the cautionary note, however, that our holding is limited to a situation such as that at bar, where at least a bona fide effort at minimization was made (again assuming that it was not adequate).

We do not imply that total suppression might never be involved as a sanction, were the police utterly to flout a minimization order. See the distinction made in n. 4 infra between mere failure to minimize adequately, on the one hand, and blatant disregard of the minimization order raising the issue to constitutional dimensions, on the other hand. We are clearly not dealing with such blatant action here, however, even assuming technical non-compliance. There is a division of authority in the country as to whether a failure to minimize requires simply the suppression of the conversations which should not have been seized or whether it requires a suppression of everything seized under a particular order, including clearly incriminatory conversations which were not the object of the intended minimization.

The appellants rely upon United States v. Scott, 331 F. Supp. 233 (D.D.C. 1971), and United States v. Focarile, supra. Scott, in dealing with a situation where there was a blatant refusal to make any even minimal effort at minimization, held that all conversations seized under that particular wiretap must be suppressed. The factual situation in Scott was an extreme one: “The surveilling agents did not even attempt ‘lip service compliance’ with the provision of the order and statutory mandate but rather completely disregarded it. The record is devoid of any attempt, no matter how slight, to minimize the interception of unauthorized calls.

In fact when Agent Cooper ²⁸² was asked if he could point to ‘any discretion exercised by any agent at any time that resulted in * * * non-recordation * * * ’ He answered, T cannot, sir.’ ” 331 F. Supp. at 247 . In Focarile , Judge Miller reasoned that total suppression was the appropriate sanction, but did so in an extended dictum. He went on to hold that the government agents there had, indeed, complied with the minimization order, so that no sanction was ultimately required. The great weight of authority and, in our judgment, the sounder reasoning maintains that the failure to minimize requires only the suppression of those conversations which should not have been seized and not the suppression of those conversations which were appropriately seized.

Indeed, analogy to general Fourth Amendment experience dictates such a result. Wiretapping and electronic eavesdropping problems are fundamental Fourth Amendment problems. Berger v. New York, 388 U. S. 41 , 87 S. Ct. 1873 , 18 L.Ed.2d 1040 (1967), simply extended the coverage of the Fourth Amendment, holding that words were subject to seizure just as more palpable items had always been. Whether dealing with conversations or with tangible items, the issue is one of particularity — that language of ■ the Fourth Amendment stating that the only valid warrants are those “particularly describing. . . the things to be seized.” The classic case on point is Marron v. United States, 275 U. S. 192 , 48 S. Ct. 74 , 72 L. Ed. 231 (1927).

In that case, certain ledgers and other papers not particularly described in a search and seizure warrant were held to have been improperly seized under the warrant; other items which had been particularly described, however, were admitted into evidence. More recent applications of the Marrón principle, mandating only the partial suppression of things wrongfully seized and not derogating from the admissibility of those things rightfully seized, are United States ex rel. Nickens v. LaVallee, 391 F. 2d 123 (2nd Cir. 1968); United States v. Dzialak, 441 F. 2d 212 (2nd Cir. 1971); and Brooks v. United States, 416 F. 2d 1044 (5th Cir. 1969). ²⁸³ The wiretap cases generally acknowledge the clear analogy to more general Fourth Amendment principles. United States v. LaGorga, supra, said, at 197: “It seems clear under the general law of search and seizure that if some of the items obtained satisfy the requirements of the law, the mere fact that other objects beyond the permissible ambit of the search must be suppressed, does not require that all of the evidence must be necessarily so treated.” United States v. Cox, supra, made the analogy explicit, at 1304: “Obviously an electronic search extending over a period of time will encompass overhearing irrelevant conversations, but the search of a building will likewise involve seeing and hearing irrelevant objects and conversations.” See also United States v. Escandar, 319 F. Supp. 295 (S.D. Fla. 1970); United States v. Langford, 303 F. Supp. 1387 (D. Minn. 1969); United States v. Thweatt, 433 F. 2d 1226 (D.C. App. 1970); Stanley v. Georgia, 394 U. S. 557 , 89 S. Ct. 1243 , 22 L.Ed.2d 542 (1969) (concurring opinion by Stewart, J.).

Beyond the application of general Fourth Amendment principles to the problem, a second argument strongly commends itself to us — the inappropriateness of extending the sanctiqn of the exclusionary rule in an area where viable alternatives have been provided. That we have the freedom to interpret in this area is clear from the circular and ambiguous provisions of Title III as well as from the example of all our sister jurisdictions, who have felt that they had the freedom to opt for or against total exclusion as a matter of judicial policy. One starts with § 2515 of the federal law: “Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, ²⁸⁴ department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.” In deciding what disclosures are not violations of the chapter, one must turn, for present purposes, to § 2517 (2): “Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire or oral communication or evidence derived therefrom may use such contents to the extent such use is appropriate to the proper performance of his official duties.” In deciding, then, whether the law enforcement officer has acted “by any means authorized by this chapter,” one turns to § 2518 (5) which provides, inter alia: “Every order and extension thereof. . . shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter . . .” The'procedural steps are made clear by § 2518 (10) (a), which provides, in pertinent part: “Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that— (i) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or ²⁸⁵ (iii) the interception was not made in conformity with the order of authorization or approval.” One thing is clear; if there has been a bona fide effort at minimization, even an inadvertent and unanticipated seizure of a conversation not particularly described in the wiretap order and not related to the subject of the investigation, but otherwise incriminatory on some other subject, would be admissible in evidence. It is equally clear that if there has been no bona fide effort at minimization, such improperly seized conversations shall not be admitted in evidence.

The present problem is more complex. Whether the improper “interception of communications not otherwise subject to interception” will somehow taint the interception of communications which were properly subject to interception, thereby divesting the investigator of the protection of § 2517 (2), thereby making his disclosure of that information a “violation of this chapter” under § 2515 and thereby requiring its suppression under § 2518 (10) (a) is the point to be resolved. The legislative intent is by no means clear and we do have range within which to apply judicial policy. In the ongoing debate for and against the exclusionary rule from Weeks v. United States, 232 U. S. 383 , 34 S. Ct. 341 , 58 L. Ed. 652 (1914), through Wolf v. Colorado, 338 U. S. 25 , 69 S. Ct. 1359 , 93 L. Ed. 1782 (1949), and Elkins v. United States, 364 U. S. 206 , 80 S. Ct. 1437 , 4 L.Ed.2d 1669 (1960), to Mapp v. Ohio, 367 U. S. 643 , 81 S. Ct. 1684 , 6 L.Ed.2d 1081 (1961), even the champions of the exclusionary rule acknowledged that it was a blunt and awkward instrument, ultimately relied on out of sheer necessity only because alternative methods of putting teeth in the Fourth Amendment had not been provided.

Linkletter v. Walker, 381 U. S. 618 , 85 S. Ct. 1731 , 14 L.Ed.2d 601 (1965), pointed out that the purpose of the rule, was simply prophylactic — that of “general deterrence.” Bivens v. Six Agents, 403 U. S. 388 , 91 S. Ct. 1999 , 29 L.Ed.2d 619 (1971), reiterated that a terrible price was paid in the loss of trustworthy evidence and that the rule was tolerated only ²⁸⁶ because of the absence of workable alternatives. See generally our discussion in Everhart v. State, 20 Md. App. 71, 83-90 , 315 A. 2d 80, 89-92 . 4 With respect to wiretapping violations, however, Title III is not dependent upon the exclusionary rule for its enforcement but has braced itself with strong and explicit sanctions, civil and criminal. For the criminal sanction, § 2511 (1) provides, in pertinent part: “Except as otherwise specifically provided in this chapter any person who— (a) willfully intercepts . . . any wire or oral communication; . . . shall be fined not more than $10,000 or imprisoned not more than five years, or both.” By way of additional civil sanction, 5 § 2520 provides, in pertinent part: ²⁸⁷ “Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter shall (1) have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use such communications, and (2) be entitled to recover from any such person— (a) actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher; (b) punitive damages; and (c) a reasonable attorney’s fee and other litigation costs reasonably incurred.” If the words of the Supreme Court in Mapp and related cases to the effect that the exclusionary rule is reluctantly and grudgingly resorted to only because of the total absence of viable alternatives to deter Fourth Amendment violations have any vitality at all, our extension of the exclusionary rule into questionable Title III areas, where strong ²⁸⁸ alternative deterrents have been provided, 6 would do violence to the spirit of the Supreme Court. They have consistently told us that trustworthy evidence should only be forsaken out of sheer necessity, when prophylaxis cannot be achieved by any other means.

The reasoning of those cases which reject total suppression is well set out in United States v. King, 335 F. Supp. 523 (S.D. Cal. 1971). In King , there was a clear failure to minimize interceptions: “The wiretap on King’s telephone was in effect for a total of forty-five days, twenty-four hours a day. It was the testimony of Agent Martin that during that time every communication that came across the tapped wire was recorded, regardless of who the parties were or the nature of the conversation, while an estimated ninety percent of the phone calls were monitored by the surveilling agents.” p. 540. There were also, however, validly seized conversations: “While it is true in this case that a substantial portion of the 1556-page wiretap transcript represents unauthorized interceptions, it must be emphasized that the rest was monitored and recorded by Customs agents in compliance both with the statute and the authorizing order.” pp. 543-544.

Zing rejected the reasoning of United States v. Scott, supra, md looked rather to general Fourth Amendment principles, jointing out that total suppression was appropriate only vhen the authorizing order itself was void ab initio: “This Court takes issue with this position as having ²⁸⁹ no legal basis, preferring to consider wiretaps within the framework of the general law of search and seizure and to follow its principles. . . . Throughout its history, whenever application of the exclusionary rule has resulted in total suppression of evidence in a criminal prosecution, it has been because the entire search and seizure was considered tainted by some violation of Fourth Amendment rights. . . . This was the case even in Berger v. New York, supra, and Katz v. United States, supra, the two decisions having the most significance in the genesis of constitutionally-approved electronic surveillance. In Berger the New York statute which authorized the electronic eavesdrop was adjudged unconstitutional so that no search pursuant to that statute could be valid either in whole or in part.

Likewise in Katz an otherwise validly executed ‘bug’ was considered a violation of the Fourth Amendment because not authorized by a judge. The entire search was void ab initio. The case presently before this Court is of a different nature. Here we have a constitutional statute and a valid warrant (authorizing order) issued thereunder.

In its execution, however, some, but not all, of the evidence seized lay beyond the scope of the warrant.” p. 544. King looked to Marron v. United States, supra, and to cases in the lower federal courts applying Marrón and to the provision of Federal Rule 41 (e): “ [T]he reasoning employed, based on the language of Rule 41(e) of the Federal Rules of Criminal Procedure, is persuasive. That Rule provides that if ‘the property seized is not that described in the warrant,’ then ‘the property shall be restored unless otherwise subject to lawful detention and it shall not be admissible in evidence at any hearing or trial.’ (Emphasis added.) This language would ²⁹⁰ seem to require an item-by-item consideration of the warrant and the items seized during the search pursuant thereto. With the exception of Scott , defense counsel has cited us to no contrary opinion, nor could our own research discover any.

Combined with the above-quoted language of Rule 41(e), this indicates to the Court that in the ordinary case, the seizure of some items of evidence in excess of those specified in a search warrant does not result in the suppression of those items which were validly seized.” pp. 544-545. King finally concluded that § 2518 (10) and Rule 41 (e) were similar in application: “It is our belief that with no higher court authority to the contrary, this principle applies as well to wiretaps under Title III, 18 U.S.C. § 2510 et seq. Section 2518 (10) (a), the section that addresses itself to motions to suppress interception, like Rule 41(e), may be considered as support for this position. The language here provides that any aggrieved person ‘may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that — (!) the communication was unlawfully intercepted; (ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval.’ (Emphasis added) This language, using the singular form throughout, appears to indicate that a motion to suppress may be directed toward one or more allegedly unlawful interceptions, and that if such motion were ²⁹¹ granted, suppression of the entire wiretap would not be a necessary consequence.

It is the decision of this Court, therefore, that defendants’ motions to suppress the entire contents of the wiretap on the basis of the Government’s failure to minimize interceptions are denied.” p. 545. United States v. Mainello, 345 F. Supp. 863 (E.D.N.Y. 1972) doubly reinforced the principle of King . It dealt first with the effect on validly seized conversations of the failure to minimize, at 877: “This court finds the reasoning of the King, Leta, and LaGorga cases most | compelling and it entertains grave doubts as to the propriety of the Scott decision. Moreover, the Marron, Nickens, and Dzialak cases, which the defense relies upon, are in fact contrary to the position the defense urges this court to take.

They clearly hold that where, in execution