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July 8, 1982


The opinion of the court was delivered by: Getzendanner, District Judge.


Defendants have been charged in a multi-count indictment with numerous violations of the federal narcotics laws. While investigating these charges, the Government sought and obtained five warrants authorizing wiretaps on the telephones of Thomas Arra and Michael Bounos, two of the principals in the alleged conspiracy.*fn1 At issue is the lawfulness of the Government's conduct during its initial surveillance of Arra (the "Arra I" surveillance). The defendants contend that the monitoring agents failed to "minimize" the interception of calls not subject to seizure under the warrant, and that all evidence derived from this surveillance must be suppressed.*fn2 For the reasons to follow, the motion to suppress is denied.


In Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510-2520 (1976 & Supp. II 1978) ("Title III"), Congress enacted a scheme of rules regulating the use of wiretap evidence in the federal courts. Section 2518(5) commands that each wiretap warrant contain

  a provision that the authorization to intercept
  shall be executed as soon as practicable, shall
  be conducted in such a way as to minimize the
  interception of communications not otherwise
  subject to interception under this chapter, and
  must terminate upon attainment of the authorized
  objective, or in any event in thirty days.

In compliance with Title III, Judge Parsons inserted the required "minimization" directive in his order authorizing the initial tap on Arra's phone. See Government Wiretap Exhibit 1C at 4. The issue before the court is whether the Government complied with this command while executing the warrant.

The Supreme Court interpreted the minimization provision in Scott v. United States, 436 U.S. 128, 140, 98 S.Ct. 1717, 1724, 56 L.Ed.2d 168 (1978):

  The statute does not forbid the interception of
  all nonrelevant conversations, but rather
  instructs the agents to conduct the surveillance
  in such a manner as to "minimize" the
  interception of such conversations. Whether the
  agents have in fact conducted the wiretap in such
  a manner will depend on the facts and
  circumstances of each case.

The inquiry is whether "the government has done all that it could to avoid unnecessary intrusion." United States v. Quintana, 508 F.2d 867, 874 (7th Cir. 1975).

In disputes of this sort, the Government's case is clearly bolstered by a showing that a high proportion of the calls it intercepted revealed information pertinent to the investigation being conducted. In many of the reported decisions, however, such a showing could not be made. In Scott, only forty percent of the intercepted calls were drug-related and therefore within the literal scope of the warrant. In Quintana, another drug case, over 2000 calls were intercepted, yet "only 153 were ultimately found germane enough to be worth transcribing, and only 47 were used at trial." United States v. Quintana, supra, 508 F.2d at 873. Nevertheless, in both cases, no minimization violation was found. Both decisions prove that "there are surely cases . . . where the percentage of nonpertinent calls is relatively high and yet their interception was still reasonable." Scott v. United States, supra, 436 U.S. at 140, 98 S.Ct. at 1724.*fn3

Courts have put forth numerous arguments to justify a finding of statutory compliance in the face of evidence that a significant number of nonpertinent calls were intercepted. It has often been remarked that

United States v. Quintana, supra, 508 F.2d at 874.

The location of the tapped phone is also extremely significant. If it "is located in the residence of a person who is thought to be the head of a major drug ring," extensive monitoring may be both permissible and necessary. Scott v. United States, supra, 436 U.S. at 140, 98 S.Ct. at 1724. This is especially true at the outset of the investigation when the Government lacks the information it needs to identify the relevant cast of characters. United States v. Quintana, supra, 508 F.2d at 874.*fn4

A third systemic consideration is the extent of supervision exercised by the authorizing judge.*fn5 Obviously, a reviewing court is more likely to sanction a surveillance if it has already been subjected to extensive and contemporaneous oversight. Id. at 875.

As for particular calls, several types are essentially exempted from the requirements of minimization. These include calls which are "very short"; those which are "onetime only" and involve unidentified voices; and those which are "ambiguous in nature," particularly if they contain "guarded or coded language." Scott v. United States, supra, 436 U.S. at 140, 98 S.Ct. at 1724. "In all these circumstances agents can hardly be expected to know that the calls are not pertinent prior to their termination." Id.

Indeed, as a general rule, an interception made pursuant to a lawful warrant is unreasonable only when the monitored call fits into a pattern of previous calls that the listening agents should have realized were irrelevant:*fn6

  During the early stages of surveillance the
  agents may be forced to intercept all calls to
  establish categories of nonpertinent calls which
  will not be intercepted thereafter. Interception
  of those same types of calls might be
  unreasonable later on, however, once the
  nonpertinent categories have been established and
  it is clear that this particular conversation is
  of that type.

Id. at 141, 98 S.Ct. at 1725; accord, United States v. Quintana, supra, 508 F.2d at 874-75; United States v. Dorfman, 542 F. Supp. 345, at 390 (N.D.Ill. 1982). However, there is even an exception to this principle, for it is extremely unlikely that there is any obligation to minimize any call that is made between suspected coconspirators, even if a pattern of innocence*fn7 has developed in their conversations. At any moment, the pleasantries might cease and the business begin. See, e.g., United States v. Scott, 516 F.2d 751, 755 (D.C. Cir. 1975); United States v. King, 335 F. Supp. 523, 542 (S.D.Cal. 1971), affd in part and reversed in part on other grounds, 478 F.2d 494 (9th Cir. 1973), cert. denied, 417 U.S. 920, 94 S.Ct. 2628, 41 L.Ed.2d 226 (1974); see also Scott v. United States, supra, 436 U.S. at 140, 98 S.Ct. at 1724 (recognizing that a call is likely to be "interceptable" when it "involve[s] one or more of the co-conspirators.") At the very least, claims of pattern must be strictly scrutinized in this context.


Even if a violation of Title III is shown, a defendant is not necessarily entitled to an order suppressing the information obtained through the illegal wiretap. The defendant must also establish that he or she has standing to complain. Thus, when objecting to the introduction of a given call X, a defendant must show that he or she was a party to call X or that he or she has a privacy interest in the premises housing the tapped phone. Alderman v. United States, 394 U.S. 165, 176, 89 S.Ct. 961, 968, 22 L.Ed.2d 176 (1969).*fn8

With respect to the Arra I wiretap, no defendant can assert the second ground as a basis for standing. Thomas Arra is not a defendant, since the Government voluntarily dismissed him from this case several months back. Likewise, neither Paula Guthery nor Jennifer Arra (Thomas' daughter), the two other individuals possessing a privacy interest in the Arra residence, are defendants.*fn9 Calls intercepted during the Arra I wiretap are suppressible, if at all, only at the behest of a defendant who was a party to the call in question.

In concrete terms this means that defendant Bounos has standing to suppress the 95 calls he was overheard making during Arra I, and that defendants Browning and Hillon have standing to suppress 2 and 11 calls, respectively. No other defendant appears at this point to have standing to suppress any evidence derived from Arra I.

Bounos, Browning and Hillon have made no effort thus far to show that they were unreasonably intercepted in the sense that their individual calls were part of an innocuous pattern as discussed before. See pp. 1037-1038, supra. Rather, defendants have attacked the entire Arra I surveillance as a totality and have tried to show that the monitoring agents flagrantly disregarded the minimization directive by committing numerous, unjustified invasions of privacy. Their theory seems to be that such a showing allows the inference that the entire monitoring was conducted without any regard for the limiting terms found in the warrant, and that the Government therefore engaged in an essentially "warrantless." "general search." Since searches of this nature are void ab initio and unreasonable in all of their manifestations, it follows that each interception made during the course of Arra I was illegal, even those which might be thought of as reasonable when viewed in isolation. In a nutshell, defendants' claim appears to be that even if their own calls were legally seized ...

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