The opinion of the court was delivered by: Getzendanner, District Judge.
MEMORANDUM OPINION AND ORDER
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
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 ...