SCOTT v. U.S.(1976)
On petition for writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit.
The petition for a writ of certiorari is denied.
Mr. Justice BRENNAN, with whom Mr. Justice MARSHALL concurs, dissenting.
The Court today again refuses to grant certiorari to consider the proper implementation of the 'minimization' requirement of 18 U.S.C. 2518(5) (1970), one of the core provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. See, e.g., Bynum v. United States, 423 U.S. 952 (1975) (Brennan, J., dissenting from denial of certiorari). The 'minimization' provision, which requires that every order and extension thereof authorizing electronic surveillance shall 'contain a provision, that the authorization to intercept shall be . . . conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter,'
When the Court denied certiorari in Bynum, I indicated my reasons for believing that 'we plainly fail in our judicial responsibility when we do not review these cases to give content to the congressional mandate of 'minimization," particularly since guidance for judges authorizing electronic surveillance 'is absolutely essential if the congressional mandate to confine execution of authorized surveillance within constitutional and statutory bounds is to be carried out.' Id., at 958-959, 953. That review is no less appropriate now. Indeed, it is even more urgent in light of the proliferation of opinions- exemplified by these cases from the Court of Appeals for the District of Columbia Circuit-sanctioning round-the-clock surveillance in which every conversation, whether innocuous or incriminating, is intercepted.
The facts of this case are relatively simple. The government sought and obtained authorization to intercept wire communications over a certain specified telephone on the ground that there was probable cause to believe that certain named individuals were using that telephone in connection with the commission of narcotics offenses, and that information concerning the offenses would be obtained through the interception of the communications over the telephone. The order authorized the intercep- [425 U.S. 917 , 919] tion of conversations relating to the illegal importation and transportation of narcotics and, as required by 2518(5), specified that the interception 'shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter.'
Although the monitoring agents were aware of the minimization requirement, the agent in charge testified that no attempt was made to minimize the interceptions. In fact, the agents listened to and recorded each and every one of the 384 calls completed over the subject telephone during the 30 days the surveillance was in effect, even though the agents' contemporaneous reports to the supervising judge classified the intercepted calls as only 40% narcotics related and 60% non-narcotics related. The agents also never informed the judge that they were taking no steps to minimize the amount of surveillance.
After the surveillance was terminated and petitioners and others were arrested, the District Judge conducted pretrial hearings on the question whether all evidence obtained during the surveillance and the fruits thereof, must be suppressed on the ground of noncompliance with the minimization mandate of the statute and the explicit provision of the wiretap authorization. The judge, finding that the agents 'did not even attempt 'lip service compliance' with the provision of the order and statutory mandate but rather completely disregarded it,' 331 F.Supp. at 247, ordered the complete suppression of all evidence obtained directly or indirectly through the surveillance. Id., at 248. On appeal, the Court of Appeals remanded for further consideration in light of another case in which it had adopted a test by which the statutory command of minimization was considered to be satisfied if monitoring agents made good- [425 U.S. 917 , 920] faith efforts to minimize and if those efforts were reasonable. 504 F.2d 194.
On remand, further hearings were held, and the District Judge again concluded that 'the monitoring agents made no attempt to comply with the minimization order of the Court but listened to and recorded all calls over the [subject] telephone. They showed no regard for the right of privacy and did nothing to avoid unnecessary intrusion.' App., at 14a. The judge again acknowledged the 'knowing and purposeful failure to comply with or even attempt to comply with the minimization requirements,' id., at 17a, and held that this 'admitted' 'conduct would be unreasonable even if every intercepted call were narcotic-related.' Id., at 18a.
On appeal, the Court of Appeals again reversed, concluding that the surveillance was reasonable because, in light of the conversations actually intercepted, it could not identify any categories of calls which could not have been reasonably intercepted even if minimization procedures had been instituted. 516 F.2d 751. The bad faith of the monitoring agents in not instituting any minimization procedures was thus deemed essentially irrelevant: the 'agents could publicly declare their intent to disobey the minimization provisions of the wiretap order, and yet it is possible that the ultimate interceptions will be found to have been reasonable.' Id., at 756.
Rehearing en banc was denied, with four judges stating why they believed reconsideration by the full court was absolutely essential. Their statement is pertinent as an indication of the necessity for granting certiorari in this case. The dissenters observed, 522 F.2d, at 1333-1334 ( Robinson, J., joined by Bazelon, C. J., and [425 U.S. 917 , 921] Wright and Leventhal, JJ.) (emphasis supplied) (footnotes omitted):
Moreover, in Walker v. United States, App., at 52a (Memorandum), in which the Court also denies certiorari today, 425 U.S. 917 a unanimous panel of the Court of Appeals for the District of Colum- [425 U.S. 917 , 924] bia Circuit declared that it would have found a violation of the minimization requirement had the Court of Appeals not denied rehearing en banc in Scott:
In light of the general importance of the minimization provision in the conduct of electronic surveillance and the conflict between the holding in Scott and other formulations of the minimization requirement, and especially in light of the Scott opinion's denigration of the importance of the monitoring agents' good-faith attempt to comply with the statute and its retroactive validation of a Fourth Amendment search on the basis of what was uncovered by the search, there is simply no justification for failing to grant the writ of certiorari in this case. The minimization issue is not clouded by other factors, and given the District Judge's findings of total noncompliance with the statutory command, only an unyielding hostility to the statutory command of minimization, and the constitutional interest in privacy which it was fashioned to protect, can motivate the Court to continue to refuse to review decisions which condone round-the-clock interception of every conversation that transpires during the conduct of a particular surveillance. No concern with crowded dockets, at a time when we review a not insubstantial number of trivial cases, can excuse the failure to address this crucial issue of statutory construction, [425 U.S. 917 , 925] fraught as it is with substantial constitutional overtones.
This refusal is not only inexcusable, but also especially anomalous in light of related actions by this Court in the electronic surveillance area. In United States v. Kahn, 415 U.S. 143 ( 1975), the Court, addressing the question of who must be named in an application and order authorizing surveillance, held, id., at 155, 94 S.Ct. at 984, 39 L.Ed.2d at 236, that
In response to the argument of the Court of Appeals and the dissent, see id., at 158-163, 94 S.Ct. at 985-988, 39 L.Ed.2d at 238-241 (Douglas, J., with whom Brennan and Marshall, JJ., concur), that such a conclusion would amount to approval of a general warrant proscribed by both Title III and the Fourth Amendment, the Kahn Court relied on the minimization mandate as an adequate safeguard to prevent such unlimited invasions of personal privacy, id., at 154-155, 94 S.Ct. at 983-984, 39 L.Ed.2d at 236- 237:
Yet the Court has consistently refused, and today persists in that refusal, to confront a case presenting the minimization question and the abuse that emanates from the seizure of 'every communication that came over the [425 U.S. 917 , 926] wire.' Indeed, the refusal is even more troubling since certiorari has been granted in United States v. Donovan, 424 U.S. 907 , a case in which the Solicitor General requests that we dilute even further the standard enunciated in Kahn for naming the subjects of proposed surveillance. I fail to comprehend how, in light of the above passage from Kahn, the Court can undertake that analysis without concomitantly addressing the contours of the minimization requirement. Inaction can only continue evisceration of the statutory mandate and require that Congress take a further and clearly unnecessary step of enacting more legislation to give concrete content to 2518(5).
I would grant the petition for certiorari.
Mr. Justice POWELL would grant the petition for certiorari.