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UNITED STATES v. SILBERMAN

March 9, 1990

UNITED STATES OF AMERICA, Plaintiff,
v.
Richard T. Silberman, Chris Petti, Jack Norman Myers, Darryl Nakatsuka, and Terry R. Ziegler, Defendants


J. Lawrence Irving, United States District Judge.


The opinion of the court was delivered by: IRVING

J. LAWRENCE IRVING, UNITED STATES DISTRICT JUDGE

 The defendants' motion to suppress the fruits of wiretap surveillance on the basis of the unconstitutionality of 18 U.S.C. § 2518(11) came on for hearing on February 6, 1990, at 9:00 a.m., before the Honorable J. Lawrence Irving, United States District Court Judge. Assistant United States Attorneys Charles Gorder and Carol Lam appeared on behalf of the United States of America; James Brosnahan, George Harris and Hannah Bentley appeared on behalf of defendant Richard Silberman; Oscar Goodman appeared on behalf of defendant Chris Petti.

 Having considered the pleadings and oral arguments of counsel, the court hereby issues the following memorandum decision and order.

 FACTS

 Defendants Silberman, Petti, Myers, Nakatsuka and Ziegler are indicted for various money laundering and currency reporting violations. Approximately 21 months prior to the indictment, the government obtained an authorization pursuant to 18 U.S.C. § 2518(11) to intercept defendant Petti's telephone conversations by means of a so-called roving wiretap in connection with its investigation of defendant Petti's activities unrelated to this case. The order authorized the surveillance and interception of defendant Petti's conversations conducted over various and changing public telephones in San Diego County. For a period of approximately one and a half years thereafter, defendant Petti was the subject of court authorized electronic surveillance. In the course of the wiretap surveillance on Petti, the government also intercepted defendant Silberman's conversations. See Defendant's Memorandum of Points and Authorities in Support of Motion (#3) to Suppress Fruits of Roving Wiretaps, at 1 n. 1. Defendants Petti and Silberman now argue that all conversations intercepted as the fruit of the roving wiretap must be suppressed. Specifically, the defendants argue that 18 U.S.C. § 2518(11) authorizing a roving wiretap is unconstitutional on its face and as applied because it fails to meet the probable cause and particularity requirements of the Fourth Amendment.

 DISCUSSION *fn1"

 Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III") governs the interception of wire communications. See 18 U.S.C. §§ 2510-2520. Wiretapping authorized under Title III has been found to comply with the Fourth Amendment. See e.g., United States v. Turner, 528 F.2d 143, 158-59 (9th Cir. 1975), cert. denied, 423 U.S. 996, 96 S. Ct. 426 46 L. Ed. 2d 371 (1975), 429 U.S. 837, 97 S. Ct. 105, 50 L. Ed. 2d (1976). Title III provides that a court may issue an order authorizing a wiretap for no more than 30 days if it determines, based on a supporting application, that: (1) there is probable cause to believe that an individual is committing, has committed, or is about to commit a particular crime; (2) there is probable cause to believe that particular communications concerning that offense will be obtained through such interception; (3) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed or to be too dangerous if tried; and, (4) there is probable cause to believe that the facilities from which or the place where the wire communications are to be intercepted are being used or are about to be used or are commonly used in connection with the commission of such offense, by such individual. 18 U.S.C. § 2518(5), 2518(3)(a)-(d).

 In 1986, Congress amended Title III through the Electronic Communications Privacy Act to "update and clarify Federal privacy protections and standards in light of dramatic changes in new computer and telecommunications technologies." S.Rep. No. 541, 99th Cong., 2d Sess. 1, reprinted in 1986 U.S.Code Cong. & Admin.News 3555. Specifically, Title III was amended to include section 2518(11) which provides:

 
The requirements of subsections (1)(b)(ii) *fn2" and (3)(d) *fn3" of this section relating to the specification of the facilities from which, or the place where, the communication is to be intercepted do not apply if --
 
(b) in the case of an application with respect to a wire or electronic communication --
 
(i) the application is by a Federal investigative or law enforcement officer and is approved by the Attorney General, the Deputy Attorney General, the Associate Attorney General, an Assistant Attorney General, or an acting Assistant Attorney General;
 
(ii) the application identifies the person believed to be committing the offense and whose communications are to be intercepted and the applicant makes a showing of a purpose, on the part of that person, ...

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