Justia Federal District Court Opinions

The District Court for the District of Columbia granted motions to suppress certain evidence gathered by electronic surveillance of appellees' conversations. On this appeal by the Government¹ from that ruling the facts are not in dispute.

From early 1975 members of the Narcotics Branch of the Metropolitan Police Department suspected that the Meljerveen Ltd. Shoe Circus, a shoe store in Northwest Washington, D. C., was the locus of narcotics distribution activity. Over a period of months these suspicions were corroborated by information received through intermittent physical surveillance of the store and from informants, some of whom made controlled purchases of narcotics there.² The police concluded that the narcotics operation was extensive, but they were unable to gather sufficient information as to the persons involved.³ Therefore, they decided to seek a court order authorizing electronic surveillance.⁴ Their information indicated that the proprietor of the Shoe Circus and prime suspect, Melvin E. Smith, mistakenly believed his telephone was already under surveillance, i. e., the object of a wiretap order, and that, therefore, he would not discuss narcotics activity over the telephone.⁵ The police concluded that under the circumstances a wiretap would be fruitless, so a decision was made to seek judicial authority to install eavesdropping devices "bugs" inside the premises.⁶

On September 4, 1975 an Assistant United States Attorney and a Metropolitan Police Department Narcotics Branch detective⁷ approached a judge of the District Court and presented to him a lengthy affidavit of probable cause and a surveillance order prepared for his signature. The Assistant United States Attorney informed the authorizing judge, off the record, that the police intended to effect entry into the Shoe Circus by means of a bomb-scare ruse.⁸ After questioning the detective on the issue of probable cause and instructing him as to statutory minimization,⁹ the authorizing judge signed the intercept order submitted by the Assistant United States Attorney.

In accordance with the provisions of the District of Columbia Code governing capture of wire and oral communications, the 20-day10 intercept order called for minimization and periodic progress reports to the authorizing judge.¹¹ Unlike most electronic surveillance orders which authorize strictly non-trespassory wiretaps¹² this warrant permitted an undesignated number of "bugs" to be placed inside the Shoe Circus "as soon as practicable."¹³ Paragraph (d) of the intercept order read:

(d) Members of the Metropolitan Police Department are hereby authorized to enter and re-enter the Meljerveen Ltd. Shoe Circus located at 4815 Georgia Avenue, Northwest, Washington, D. C., for the purpose of installing, maintaining and removing the electronic eavesdropping devices. Entry and re-entry may be accomplished in any manner, including, but not limited to, breaking and entering or other surreptitious entry, or entry and re-entry by ruse and stratagem.

Intercept order at 3, JA 45 (emphasis added). Acting pursuant to this authorization, police posing as a unit of the bomb squad appeared at the Shoe Circus on September 5. The store was evacuated and three "bugs" were installed, with at least one of the devices being placed in an area of the store not open to the general public. The operation lasted approximately half an hour.

It appears that on the following day police assigned to monitor conversations taking place inside the Shoe Circus discovered that none of the devices was transmitting. The Assistant United States Attorney was notified, and he in turn informed the authorizing judge. Remarking that there was, in his opinion, little likelihood of successful re-entry by means of another bomb-scare ruse, the authorizing judge nevertheless apparently concurred in the Assistant United States Attorney's plan. No record was made of these entirely informal conversations. Again using a bomb-scare ruse, police made a second daytime entry on September 10, 1975 and installed two additional devices, one in a non-public area. This time the devices did not malfunction, and during the next five weeks the police successfully monitored numerous narcotics-related conversations.

There is no indication that any further entries were made until October 15, 1975, when, prior to the expiration of an extension order issued September 26, 1975, the police entered without subterfuge to remove the listening devices. The intercepted conversations were subsequently presented to the grand jury. On February 6, 1976 indictments were issued charging appellees with various narcotics-related offenses.¹⁴ Appellees moved to suppress the electronic surveillance evidence, and a hearing was held¹⁵ at which the Government vigorously contended that this essential element of the prosecution's evidence had been validly seized. In a memorandum and order dated April 23, 1976 the District Court granted appellees' motions to suppress. United States v. Ford, 414 F.Supp. 879 (D.D.C.1976). The instant appeal ensued.

* The District Court found that the police had received reliable information and had concluded on "substantial evidence"¹⁶ that a narcotics business was being operated, primarily during night hours, at the Shoe Circus. It determined that the authorizing judge had been furnished a detailed showing of probable cause,¹⁷ and had been kept fully informed of police actions taken under the authority of the intercept order.¹⁸ The court concluded that in enacting Title III of the Omnibus Crime Control and Safe Streets Act of 1968 and the parallel provisions of the District of Columbia Code¹⁹ Congress intended to confer jurisdiction on the courts to authorize covert entry by police for the purpose of installing eavesdropping devices.20 Thus the District Court ruled by implication that certain statutory safeguards governing execution of search warrants issued for seizure of specified items were inapplicable in this case.21 It reasoned, however, that the total absence of statutory limitations or restrictions on entry of private premises to install "bugs,"22 combined with the continuous and undiscriminating nature of the seizure,23 placed an "extraordinarily heavy burden"²⁴ on the authorizing judge to tailor his order narrowly and thereby minimize the scope of the total intrusion.

According to the District Court, the order in question failed to meet these criteria. Since no formal record of any of the discussions between the Assistant United States Attorney and the authorizing judge had been made, the intercept order had to stand or fall on its own terms,²⁵ which were impermissibly overbroad. The court discussed the authorization necessary in this type of case:

A warrant must be specific. * * * Where more than one entry is involved each intrusion must be treated formally and approved in advance so that the judge or magistrate can supervise when and how the entry is to be accomplished. * * * The authorization given in this instance did not limit the number of entries nor did it specify either the general time or manner of entry. Thus the authority given was far too sweeping.

United States v. Ford, supra, 414 F.Supp. at 884. The court held that because the authorization was invalid the District of Columbia Code mandated suppression of the evidence obtained by the electronic surveillance.

II

The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The present case implicates two distinct aspects²⁶ of the Fourth Amendment: unconsented physical entry into private premises²⁷ and recording of oral statements.²⁸ We deal primarily with the first aspect. The Government's initial contention is that surreptitious entry into private premises, for the limited purpose of installing, maintaining, or removing bugging equipment, is not independently within the Fourth Amendment's protections, and that an entry provision is "not required by either the Supreme Court or Congress to be part of the order." Government br. at 8. Therefore, it is argued, the surreptitious entry provision, whether or not overbroad, constituted surplusage and should have been irrelevant to any judicial scrutiny of the intercept order.

In cases involving physical intrusions into private premises the Supreme Court has repeatedly recognized that the individual has an interest in "limiting the circumstances under which the sanctity of his home may be broken by official authority."²⁹ The basic purpose of the Fourth Amendment, the Court has stated, "is to safeguard the privacy and security of individuals against arbitrary invasions by government officials."³⁰ Indeed, until Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), unauthorized electronic eavesdropping on conversations, when not accomplished by an invasion of a constitutionally protected area, did not even violate the Fourth Amendment. Because no right of conversational privacy had been recognized, the Court "insisted only that the electronic device not be planted by an unlawful physical invasion of a constitutionally protected area." Lopez v. United States, 373 U.S. 427, 438, 83 S.Ct. 1381, 1388, 10 L.Ed.2d 462 (1963). Exclusion of verbal evidence obtained by trespass vindicated only the right to be secure from illegal governmental invasion of private premises. Alderman v. United States, 394 U.S. 165, 177-178, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).³¹ We conclude, after analysis of the underlying policy considerations and well established precedents, that surreptitious physical invasion of a home or protected business premises,³² when undertaken by police agents for the purpose of installing, maintaining, or removing electronic eavesdropping devices, is, absent a valid consent or sufficiently particularized judicial authorization to enter, a violation of the Fourth Amendment. Thus the surreptitious entry provision in the warrant here was not surplusage. It was a necessary precondition to the Government's unconsented entries into the Shoe Circus and the failure adequately to limit the authorization to enter was a fatal defect.

In Irvine v. California, 347 U.S. 128, 74 S.Ct. 381, 98 L.Ed. 561 (1954) decided seven years before Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), applied the exclusionary rule to state court prosecutions police officers surreptitiously entered the petitioner's home, without a warrant, on three separate occasions to install and reposition an eavesdropping device.³³ Relying on the principle of Wolf v. Colorado, 338 U.S. 25, 33, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949),³⁴ that evidence seized in violation of the Fourth Amendment was not required by the Constitution to be excluded in state court prosecutions where no coercion, violence, or brutality to the person was involved, a sharply divided Court affirmed the conviction. The plurality nevertheless commented in the following language on what had transpired:

Each of these repeated entries of petitioner's home without a search warrant or other process was a trespass, and probably a burglary, for which any unofficial person should be, and probably would be, severely punished. * * * That officers of the law would break and enter a home, secret such a device, even in a bedroom, and listen to the conversation of the occupants for over a month would be almost incredible if it were not admitted. Few police measures have come to our attention that more flagrantly, deliberately, and persistently violated the fundamental principle declared by the Fourth Amendment * * *. * * *

347 U.S. at 132, 74 S.Ct. at 382-383 (emphasis added).³⁵

The Court was again confronted with trespassory electronic eavesdropping in Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961), though in that case the physical invasion was arguably less severe. A "spike mike" was driven through an adjoining wall and, although no agent ever physically entered the premises, the device made contact with the heating duct system of the home where the incriminating conversations were expected to take place. The Court, in reversing the conviction under the exclusionary rule of Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), stated:

Eavesdropping accomplished by means of such a physical intrusion is beyond the pale of even those decisions in which a closely divided Court has held that eavesdropping accomplished by other electronic means did not amount to an invasion of Fourth Amendment rights. * * *

365 U.S. at 509-510, 81 S.Ct. at 682.³⁶ Furthermore, the Court declared it had

never held that a federal officer may without warrant and without consent physically entrench into a man's office or home, there secretly observe or listen, and relate at the man's subsequent criminal trial what was seen or heard.

Id. at 512, 81 S.Ct. at 683.³⁷ If, as the Court stated in Irvine, entering private premises to plant an eavesdropping device is, for Fourth Amendment purposes, equivalent to ensconcing a police agent, and Silverman established the latter as a subject of the Amendment's strictures,³⁸ the Amendment must also encompass surreptitious entry of the kind involved in this case.³⁹

The Government seems to concede that under these cases trespass was the focus of constitutional protection. It argues, however, citing Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), and Katz v. United States, supra, that with the advent of constitutional protection for conversational privacy physical entries incident to electronic surveillance no longer require prior judicial approval. To put it mildly, we cannot agree.

In Berger the necessity of judicial authorization for the trespassory invasion was not at issue because each of the two surreptitious entries which took place was the subject of prior judicial approval.⁴⁰ Nevertheless, the Court recognized that protection from unauthorized intrusion into private premises is a primary concern of the Fourth Amendment.⁴¹ It outlined some of the safeguards present in other cases where it had held the Amendment's requirements met. Among these protections were: issuance of a warrant allowing one limited intrusion rather than a series of intrusions or continuous surveillance; issuance of a warrant drawn to foreclose any search of unauthorized areas; and obtaining of a new order on a new showing of probable cause, by officers seeking to resume the search.⁴²

In Berger the Court was concerned with the question whether the challenged New York statute was facially invalid in that it permitted the second aspect of the search the overhearing to be undertaken by general warrant, contrary to the Amendment's command. But Berger certainly did not reject the then established premise that surreptitious entry for the purpose of installing electronic surveillance devices was within the ambit of the Fourth Amendment. Kaiser v. New York, 394 U.S. 280, 282, 89 S.Ct. 1044, 22 L.Ed.2d 274 (1969). Rather, the Court extended particularity protections formerly applicable only to the trespass to the overhearing in those cases where both aspects of the Amendment were implicated.

Similarly, there is no indication that the majority in Katz intended to alter the rule applicable to physical invasion when, in explicitly overruling Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942), and Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), it announced that henceforth even incursions on conversational privacy accomplished by non-trespassory means would be subject to the Amendments' strictures. Stating that "the correct solution of Fourth Amendment problems is not necessarily promoted by incantation of the phrase 'constitutionally protected area,' " 389 U.S. at 350, 88 S.Ct. at 510 (emphasis added), the Court continued:

(O)nce it is recognized that the Fourth Amendment protects people and not simply "areas" against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.

389 U.S. at 353, 88 S.Ct. at 512 (emphasis added).

The decision "in Katz refused to lock the Fourth Amendment into instances of actual physical trespass," United States v. United States District Court (Keith), 407 U.S. 297, 313, 92 S.Ct. 2125, 2135, 32 L.Ed.2d 752 (1972); it was intended to expand the scope of the Amendment's protection and not to diminish existing safeguards against unwarranted invasions of physical privacy.⁴³ This is the clear lesson of the Supreme Court's Alderman decision,⁴⁴ in which the Court stated:

Nor do we believe that Katz, by holding that the Fourth Amendment protects persons and their private conversations, was intended to withdraw any of the protection which the Amendment extends to the home or to overrule the existing doctrine, recognized at least since Silverman, that conversations as well as property are excludable from the criminal trial when they are found to be the fruits of an illegal invasion of the home. * * *

394 U.S. at 180, 89 S.Ct. at 970 (emphasis added). Surreptitious entries of the type authorized here are undoubtedly invasions of privacy. They may entail inspection of the premises while police search for suitable places to install or relocate the necessary devices or while personnel charged with maintenance or removal search for devices previously installed. Such entries will often bring government officers within plain view of personal papers and effects. Even if it were to be assumed that such entries inevitably represent less aggravated incursions than traditional rummaging searches, they would remain within the sphere of the Fourth Amendment. Contrary to the Government's contention, the Fourth Amendment's protections against physical trespass do not disappear simply because a probable cause showing has been made, and statutory authorization received, for gathering oral evidence. Quite the contrary, the least intrusive means rationale implicit in Katz and Keith requires that, where possible, such evidence should be gathered without entering private premises and that where entry is required the judicial authorization therefor should circumscribe that entry to the need shown.

The Government next argues, however, that even if surreptitious entries to install, maintain, or remove eavesdropping devices are within the ambit of the Fourth Amendment they should not be subjected to the Amendment's warrant procedure, provided there is a proper warrant authorizing seizure of conversations. It is contended that if the police enter with probable cause and intend to intercept oral communications under the authority of a Title III order, the incursions on physical privacy are per se reasonable and should be validated without regard to the terms of a surreptitious entry provision in the judicial order.⁴⁵ Under this approach the overbroad entry provision in the intercept order would again be surplusage.

We reiterate that in determining whether issuance of an order for seizure of conversations obviates the need to obtain prior judicial approval of ancillary entries, we are cognizant of the fact that bugging, unlike nontrespassory wiretapping, ordinarily involves two distinct aspects of the Fourth Amendment: protection of private premises and of conversational privacy from unwarranted governmental intrusion.⁴⁶ Moreover, in Fourth Amendment jurisprudence " 'search' and 'seizure' are not talismans." Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). The "Amendment governs all intrusions by agents of the public upon personal security," id. at 18 n.15, 88 S.Ct. at 1879, and requires adherence to judicial processes in order that the deliberate and impartial judgment of a judicial officer will be interposed between the citizen and the police.⁴⁷ The Fourth Amendment protects a right of privacy and the warrant clause was included

so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. * * * And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. * * *

McDonald v. United States, 335 U.S. 451, 455-456, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948), quoted in Chimel v. California, 395 U.S. 752, 761, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

Therefore, the Government's argument

touches the very heart of the Fourth Amendment directive: that, where practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen's private premises or conversation. * * *

Keith, supra, 407 U.S. at 316, 92 S.Ct. at 2136 (emphasis added).⁴⁸ Generally, it is insisted that

in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. * * *

Terry v. Ohio, supra, 392 U.S. at 21, 88 S.Ct. at 1880 (emphasis added; footnote omitted). Thus, unless a judicially created exception to the warrant requirement can be invoked, when a case involves incursions on both private premises and conversational privacy, each requires prior valid judicial authorization though such authorization may be contained in the same document.

Exemptions from the warrant requirement have been few in number and generally have been created in that class of cases where an exception is considered necessary to protect the well-being of officers or to preserve evidence from destruction.⁴⁹ Recently the Supreme Court has held "hot pursuit" to be sufficient reason in certain circumstances to permit warrantless entry onto private premises. United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976). No contention is made, however, that any of these existing justifications is applicable in this case, so we must determine whether a new exception should be created for surreptitious entries to install, maintain, or remove "bugs." In this inquiry the question is not whether the public interest requires this type of incursion on privacy to achieve valid ends of law enforcement. Rather, it is whether the authority to enter "should be evidenced by a warrant, which in turn depends in part upon whether the burden of obtaining a warrant is likely to frustrate the governmental purpose * * *." Camara v. Municipal Court, 387 U.S. 523, 533, 87 S.Ct. 1727, 1733, 18 L.Ed.2d 930 (1967).⁵⁰

The Government maintains that courts do not have the expertise necessary to weigh adequately the desirability and feasibility of various methods of entry, and that the incremental invasion of privacy entailed by surreptitious entry is relatively minor. The first argument proves too much, however, for it would lead not only to abrogation of the warrant requirement, but also to the unacceptable conclusion that courts are inherently incapable of reviewing the reasonableness of police action taken with the intent to install or maintain eavesdropping devices.⁵¹ The second "is founded on little more than a subjective view regarding the acceptability of certain sorts of police conduct, and not on considerations relevant to Fourth Amendment interests." Chimel v. California, supra, 395 U.S. at 764-765, 89 S.Ct. at 2041.⁵² As the District Court here properly recognized, surreptitious entry to install, maintain, or remove "bugs" is a serious invasion because

(f)reedom from intrusion into the home or dwelling is the archetype of the privacy protection secured by the Fourth Amendment. * * *

* * * The requirement of a warrant, as now generally understood, rests primarily on the conception that it is for a judicial officer, and not the prosecutor or police, to determine whether the security of our society, which is essential to the maintenance of a rule of law, requires that the right of privacy yield to a right of entry, search and seizure, and what limitation and specification of entry may be appropriate and reasonable. * * *

Dorman v. United States, 140 U.S.App.D.C. 313, 317, 435 F.2d 385, 389 (1970) (en banc ) (emphasis added; footnote omitted). Moreover, the Supreme Court has recently stated that "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed * * *." Keith, supra, 407 U.S. at 313, 92 S.Ct. at 2134.

We do not

deal here with an entire rubric of police conduct necessarily swift action predicated upon the on-the-spot observations of the officer on the beat which historically has not been, and as a practical matter could not be, subjected to the warrant procedure. * * *

Terry v. Ohio, supra, 392 U.S. at 20, 88 S.Ct. at 1879. Entry into private premises is the traditional focus of the warrant requirement.⁵³ By virtue of the requirements outlined in Title III, a judicial officer is inevitably and intimately involved in electronic surveillance situations. We believe, therefore, the only rationale for creating a categorical exemption from the warrant requirement for surreptitious entries to install, maintain, or remove electronic surveillance devices would be the convenience of the executing officers.

In light of the privacy interests implicated, the legislative history of Title III,⁵⁴ specific findings and provisions in the District of Columbia Code,⁵⁵ and the Supreme Court's recognition that exigency factors will rarely, if ever, be present in instances of electronic surveillance,⁵⁶ we conclude that the minor incremental burden involved in obtaining proper judicial authorization for the particular invasions of privacy at issue here is not sufficient justification for dispensing with a fundamental Fourth Amendment requirement.⁵⁷ When police seek to invade, surreptitiously and without consent, a protected premises to install, maintain, or remove electronic surveillance devices, prior judicial authorization in the form of a valid warrant authorizing that invasion must be obtained.⁵⁸

III

Our conclusion that surreptitious entries to install, maintain, or remove electronic surveillance devices are subject to the warrant requirement of the Fourth Amendment mandates consideration of the legal sufficiency of the intercept order's entry provision. As noted above, see pages --- - --- of 180 U.S.App.D.C., pages 151-152 of 553 F.2d supra, the District Court determined that the order was overbroad and that the overbreadth was more than a technical defect. Therefore, the order was "insufficient on its face." United States v. Ford, supra, 414 F.Supp. at 885. Of course, in determining whether issuance of a particular warrant was justified, affidavits of probable cause are to be tested in a commonsense, realistic fashion. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). The issuing magistrate's determination of probable cause should be paid great deference by reviewing courts. Jones v. United States, 362 U.S. 257, 270-271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). But intercept orders issued under Title III or the parallel provisions of the District of Columbia Code, like other warrants, must be subjected to a review which will "ensure that the issuing magistrate properly performed his function and did not 'serve merely as a rubber stamp for the police.' " United States v. Kalustian, 529 F.2d 585, 589 (9th Cir. 1976), quoting United States v. Ventresca, supra, 380 U.S. at 109, 85 S.Ct. 741.

The reviewing court thus has a duty to determine whether the showing of probable cause was sufficient to justify the intrusion authorized.⁵⁹ In Berger v. New York, supra, the Court stressed that

(t)he need for particularity and evidence of reliability in the showing required when judicial authorization of a search is sought is especially great in the case of eavesdropping. * * * As was said in Osborn v. United States, 385 U.S. 323, (87 S.Ct. 429, 17 L.Ed.2d 394) (1966), the "indiscriminate use of such devices in law enforcement raises grave constitutional questions under the Fourth and Fifth Amendments," and imposes "a heavier responsibility on this Court in its supervision of the fairness of procedures . . ." At 329, n.7 (87 S.Ct. at 433). * * *

388 U.S. at 56, 87 S.Ct. at 1882. The procedure used in Osborn, for example, was

lawful because there was sufficient proof to obtain a search warrant to make the search for the limited purpose outlined in the order of the judges. Through these "precise and discriminate" procedures the order * * * afforded similar protections to those that are present in the use of conventional warrants authorizing the seizure of tangible evidence. * * *

388 U.S. at 57, 87 S.Ct. at 1882. And the Court reserved its strongest criticism for that aspect of the New York eavesdropping law which authorized "the equivalent of a series of intrusions, searches, and seizures pursuant to a single showing of probable cause." 388 U.S. at 59, 87 S.Ct. at 1883. See also pages --- - --- of 180 U.S.App.D.C., pages 156-158 of 553 F.2d supra.

Nevertheless, by analogy to an intercept order authorizing multiple conversational seizures, the Government contends that a valid warrant might authorize multiple entries during the period of authorized electronic surveillance even if, at the time the warrant issues, there is no demonstrated need or individualized judicial finding of necessity for multiple incursions.⁶⁰ Admittedly, Title III and the parallel provisions of the District of Columbia Code of necessity do allow individual conversations to be seized without a prior determination by the issuing magistrate that they are covered by the warrant authorizing the bugging. After the surveillance is completed, if it is challenged, a reviewing court determines whether particular challenged conversations were illegally seized. However, this procedure is akin to post-search examination of whether police have exceeded the authority of the warrant by seizing items not particularly described,⁶¹ and does not obviate the Fourth Amendment's command that the official intrusion on private premises have prior valid judicial authorization based on sufficient probable cause.⁶² In accord with the mandate of Berger, Title III and the parallel provisions of the District of Columbia Code require the demonstration of probable cause to be coextensive with the intrusion permitted.⁶³

The affidavits submitted in support of the application for the intercept order reveal that the showing of probable cause was less than sufficient to support the entry provision in the order.⁶⁴ The affiant did allege facts which, if true, would allow a judicial officer to determine that non-trespassory electronic surveillance would not succeed in achieving the conversational seizures and that "bugging" inside the premises would be required. But the affidavits are totally devoid of allegations which would warrant the conclusion that the executing officers needed freedom to make multiple entries at any time of day or night, by any means they believed necessary.⁶⁵

A person whose physical privacy is to be invaded has a right to expect the judicial officer issuing an intercept order will authorize only those entries and those means of entry necessary to satisfy the demonstrated and cognizable needs of the applicant. This is the method by which the magistrate exercises the degree of supervision required by the Fourth Amendment in the absence of statutory safeguards. There having been a failure in this regard, we affirm the judgment of the District Court that, given the showing to the District Judge in this case, the failure of the order to limit time, manner, or number of entries over a 40-day period⁶⁶ made the authorization far too sweeping.⁶⁷

We do not decide when, if ever, surreptitious entries are reasonable within the Fourth Amendment. Assuming that such entries are sometimes constitutional, we hold only that the warrant in this case was defective for expressly authorizing any number and manner of entries when there had been no showing of necessity for such broad authorization. Essential to our holding is the premise that entries to plant "bugs" are themselves invasions of privacy distinct from the actual eavesdrop, and therefore require separate consideration in the warrant procedure. If police are to be permitted to enter private premises to conceal eavesdropping devices a question we leave unresolved they at least must be required to proceed in accordance with the authorization of a warrant narrowly tailored to the demonstrated demands of the situation.

IV

Turning to the Government's contention that suppression of the evidence is not the proper remedy to be applied in this case, we find an essentially threefold argument. Appellant maintains (1) that statutory suppression is not applicable; (2) that any violation was merely technical and, therefore, the evidence should not be suppressed; and (3) suppression, if ordered, must be under the judicially fashioned exclusionary rule, and its application turns not only on the degree of the violation, but also on whether a deterrence function will be served in a particular case. Our conclusion that statutory suppression is applicable and that the violation was not merely technical makes unnecessary any discussion of the third contention.⁶⁸Statutory Suppression is Applicable

As to the applicability of statutory suppression to the communications in question here, the Government is in the interesting situation of taking a position diametrically opposite to the one it urged in United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). Understandably it does not press its current position too strongly. In Giordano the Government sought to convince the Court that "unlawfully intercepted" under the statute, 18 U.S.C. § 2518(10)(a)(i), 23 D.C.Code § 551(b)(1), was limited to constitutional violations, as distinguished from statutory violations, 416 U.S. at 525, 94 S.Ct. 1820, whereas here it argues that "unlawfully intercepted" is limited to statutory violations as distinguished from constitutional violations. The Court in Giordano, in rejecting the Government's argument, observed that "(t)he words 'unlawfully intercepted' are themselves not limited to constitutional violations * * * ." Id. at 527, 94 S.Ct. at 1832. It clearly indicated that "unlawfully intercepted" included constitutional as well as statutory violations. Id. at 524-528, 94 S.Ct. 1820.

In United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed. 380 (1974), the Court also interpreted the words "unlawfully intercepted." There, in rejecting an argument that the challenged evidence should be suppressed because of a defect in the intercept order, the Court emphasized that "(t)here is no claim of any constitutional infirmity arising from this defect * * * ." 416 U.S. at 570, 94 S.Ct. at 1854. The Court also stated: "(W)e rejected, in Giordano, the Government's claim that Congress intended 'unlawfully intercepted' communications to mean only those intercepted in violation of constitutional requirements * * * ." Id. at 574, 94 S.Ct. at 1856.

Thus the Court in two cases has plainly indicated that "unlawfully intercepted" includes constitutional violations. These indications are reinforced by the language of Title III and the pertinent provisions of the D.C.Code. When Congress wanted to refer only to statutory violations of Title III it said so,⁶⁹ whereas no such limiting language is found with respect to the words "unlawfully intercepted."

Here the constitutional violation the overbroad entry provision invalidated the warrant, made the seizure thereunder unlawful, and proscribed the admission into evidence of the communications unlawfully intercepted under both relevant constitutional doctrine and the provisions of the statute itself.⁷⁰ Thus the suppression order under review is affirmed not only because the warrant was "insufficient on its face," 18 U.S.C. § 2518(10)(a)(ii), 23 D.C.Code § 551(b) (2), as the District Court held, 414 F.Supp. at 885, but also because the communications in suit were "unlawfully intercepted." 18 U.S.C. § 2518(10) (a)(i), 23 D.C.Code § 551(b)(1).

The Violation Was Not Merely Technical

Not every technical or minor deficiency in an intercept order requires seized conversations to be suppressed.⁷¹ The Third Circuit, for example, has concluded that Title III does not call for suppression "for facial insufficiency relating to less critical requirements which may be varied by subsequent affidavits." United States v. Acon, 513 F.2d 513, 518 (3d Cir. 1975). But the same court said:

The government certainly would not be allowed to amplify the facts presented on the face of the affidavit to the district court in order to improve the district court's finding of probable cause. United States v. Ceraso, 467 F.2d 647, 653 (3d Cir., 1973).

Id. This is an unequivocal rejection of the rule the Government seeks to have adopted in this case. To allow the Government to supplement the showing of probable cause at the point of judicial review would violate the established constitutional principle that probable cause cannot be tested by hindsight but must be examined as of the time the affidavits were presented to the authorizing magistrate and the warrant issued.⁷² At that time the entry provision in the warrant here, essentially authorizing unlimited entries on private property, was impermissibly overbroad.⁷³ There was simply no probable cause showing to support the breadth of the entry provision. This constituted more than a clerical mistake.⁷⁴ As a result guidance as to the proper remedy is found in United States v. Giordano, supra, rather than United States v. Chavez, supra, on which the Government chiefly relies.⁷⁵

In Giordano the Attorney General had not complied with a statutory requirement that he personally authorize application for a Title III intercept order. Though there was the appearance of compliance with Title III, the Court concluded that the case was within the category where Congress intended statutory suppression, that is, "where there is failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device." 416 U.S. at 527, 94 S.Ct. at 1832. Since the order had been issued invalidly, it could not support the conversational seizures.

Both the Supreme Court and Congress have indicated that court orders dealing with electronic surveillance must be suitably circumscribed. The Fourth Amendment requires, and Congress has expressed an intent to ensure, that the showing of probable cause match the intrusion contemplated and authorized.⁷⁶ There was here, as there was in Giordano, a fault in the required review prior to issuance of the intercept order, although here it was the authorizing judge rather than the Attorney General or his designee who did not fulfill his responsibility. The probable cause shown did not establish the need for the broad authority granted, and the fact that the police may have acted with restraint in executing the warrant cannot legitimate the surveillance. As the Supreme Court stated in a passage directly applicable here:

It is apparent that the agents in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer. * * *

Katz v. United States, supra, 389 U.S. at 356, 88 S.Ct. at 514.⁷⁷

Our conclusion is that the oral communications seized under the overbroad intercept order in this case must be considered to have been intercepted, as in Giordano, without the authority of a properly issued and suitably circumscribed warrant.⁷⁸ Therefore, in addition to the warrant's being "insufficient on its face," 23 D.C.Code § 551(b)(2), (18 U.S.C. § 2518(10)(a)(ii)), the communications are "unlawfully intercepted" within the meaning of 23 D.C.Code § 551(b)(1) (18 U.S.C. § 2518(10)(a)(i)). Since there is no doubt that appellees are statutorily "aggrieved persons,"⁷⁹ the order of the District Court suppressing the seized conversations is

Affirmed.