DALIA v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Argued January 9, 10, 1979
Decided April 18, 1979
Pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, the District Court, finding probable cause to believe that petitioner was a member of a conspiracy the purpose of which was to steal goods being shipped in interstate commerce, granted the Government's request for authorization to intercept all oral communications taking place in petitioner's business office. Petitioner was subsequently convicted of receiving stolen goods and conspiring to transport, receive, and possess stolen goods. At a hearing on his motion to suppress evidence obtained under the bugging order, it was shown that although such order did not explicitly authorize entry of petitioner's business office, FBI agents had entered the office secretly at midnight on the day of the bugging order and had spent three hours installing an electronic bug in the ceiling. Denying petitioner's motion to suppress, the District Court ruled that under Title III a covert entry to install electronic eavesdropping equipment is not unlawful merely because the court approving the surveillance did not explicitly authorize such an entry. Affirming petitioner's conviction, the Court of Appeals rejected his contention that separate court authorization was necessary for the covert entry of his office.
POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined and in Parts I and II [441 U.S. 238, 240] of which BRENNAN and STEWART, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which STEWART, J., joined except as to Part I, post, p. 259. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 262.
Louis Ruprecht argued the cause and filed a brief for petitioner.
Deputy Solicitor General Frey argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Heymann, William C. Bryson, Kenneth S. Geller, and Jerome M. Feit.
MR. JUSTICE POWELL delivered the opinion of the Court.
Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III), 18 U.S.C. 2510-2520, permits courts to authorize electronic surveillance 1 by Government officers in specified situations. We took this case by writ of [441 U.S. 238, 241] certiorari to resolve two questions concerning the implementation of Title III surveillance orders. 439 U.S. 817 . First, may courts authorize electronic surveillance that requires covert entry 2 into private premises for installation of the necessary equipment? Second, must authorization for such surveillance include a specific statement by the court that it approves of the covert entry? 3
On March 14, 1973, Justice Department officials applied to the United States District Court for the District of New Jersey, seeking authorization under 18 U.S.C. 2518 to intercept telephone conversations on two telephones in petitioner's business office. After examining the affidavits submitted in support of the Government's request, the District Court authorized the wiretap for a period of 20 days or until the purpose of the interception was achieved, whichever came first. The court found probable cause to believe that petitioner was a member of a conspiracy the purpose of which was to steal goods being shipped in interstate commerce in violation of 18 U.S.C. 659. Moreover, the court found reason to believe that petitioner's business telephones were being used to further this conspiracy and that means of investigating the conspiracy [441 U.S. 238, 242] other than electronic surveillance would be unlikely to succeed and would be dangerous. The wiretap order carefully enumerated the telephones to be affected and the types of conversations to be intercepted. Finally, the court ordered the officials in charge of the interceptions to take all reasonable precautions "to minimize the interception of communications not otherwise subject to interception," and required the officials to make periodic progress reports.
At the end of the 20-day period covered by the March 14 court order, the Government requested an extension of the wiretap authorization. In addition, the Government for the first time asked the court to allow it to intercept all oral communications taking place in petitioner's office, including those not involving the telephone. On April 5, 1973, the court granted the Government's second request. Its order concerning the wiretap of petitioner's telephones closely tracked the March 14 order. Finding reasonable cause to believe that petitioner's office was being used by petitioner and others in connection with the alleged conspiracy, the court also authorized, for a maximum period of 20 days, the interception of all oral communications concerning the conspiracy at "the business office of Larry Dalia, consisting of an enclosed room, approximately fifteen (15) by eighteen (18) feet in dimension, and situated in the northwesterly corner of a one-story building housing Wrap-O-Matic Machinery Company, Ltd., and Precise Packaging, and located at 1105 West St. George Avenue, Linden, New Jersey." The order included protective provisions similar to those in the March 14 wiretapping order. 4 The electronic surveillance order of April 5 was extended by court order on April 27, 1973. [441 U.S. 238, 243]
On November 6, 1975, petitioner was indicted in a five-count indictment charging that he had been involved in a [441 U.S. 238, 244] conspiracy to steal an interstate shipment of fabric. 5 At trial, the Government introduced evidence showing that petitioner had been approached in March 1973 and asked to store in his New Jersey warehouse "a load of merchandise." Although petitioner declined the request, he directed the requesting party to Higgins, an associate, with whom he agreed to share the $1,500 storage fee that was offered. The merchandise stored under this contract proved to be a tractor-trailer full of fabric worth $250,000 that three men stole on April 3, 1973, and transported to Higgins' warehouse. Two days after the theft, FBI agents arrested Higgins and the individuals involved in the robbery.
The Government introduced into evidence at petitioner's trial various conversations intercepted pursuant to the court [441 U.S. 238, 245] orders of March 14, April 5, and April 27, 1973. Intercepted telephone conversations showed that petitioner had arranged for the storage at Higgins' warehouse and had helped negotiate the terms for that storage. One telephone conversation that took place after Higgins' arrest made clear that petitioner had given advice to others involved in the robbery to "sit tight" and not to use the telephone. Finally, the Government introduced transcripts of conversations intercepted from petitioner's office under the April 5 bugging order. In these conversations, petitioner had discussed with various participants in the robbery how best to proceed after their confederates had been arrested. The unmistakable inference to be drawn from petitioner's statements in these conversations is that he was an active participant in the scheme to steal the truckload of fabric.
Before trial, petitioner moved to suppress evidence obtained through the interception of conversations by means of the device installed in his office. The District Court denied the suppression motion without prejudice to its being renewed following trial. After petitioner was convicted on two counts, 6 he renewed his motion and the court held an evidentiary hearing concerning the method by which the electronic device had been installed. At this hearing it was shown that, although the April 5 court order did not explicitly authorize entry of petitioner's business, the FBI agents assigned the task of implementing the order had entered petitioner's office secretly at midnight on April 5 and had spent three hours in the building installing an electronic bug in the ceiling. All electronic surveillance of petitioner ended on May 16, 1973, at which time the agents re-entered petitioner's office and removed the bug.
In denying a second time petitioner's motion to suppress the evidence obtained from the bug, the trial court ruled [441 U.S. 238, 246] that under Title III a covert entry to install electronic eavesdropping equipment is not unlawful merely because the court approving the surveillance did not explicitly authorize such an entry. 426 F. Supp. 862 (1977). Indeed, in the court's view, "implicit in the court's order [authorizing electronic surveillance] is concomitant authorization for agents to covertly enter the premises in question and install the necessary equipment." Id., at 866. As the court concluded that the FBI agents who had installed the electronic device were executing a lawful warrant issued by the court, the sole question was whether the method they chose for execution was reasonable. Under the circumstances, the court found the covert entry of petitioner's office to have been "the safest and most successful method of accomplishing the installation." Ibid. Indeed, noting that petitioner himself had indicated that such a device could only have been installed through such an entry, the court observed that "[i]n most cases the only form of installing such devices is through breaking and entering. The nature of the act is such that entry must be surreptitious and must not arouse suspicion, and the installation must be done without the knowledge of the residents or occupants." Ibid.
The Court of Appeals for the Third Circuit affirmed petitioner's conviction. 575 F.2d 1344 (1978). Agreeing with the District Court, it rejected petitioner's contention that separate court authorization was necessary for the covert entry of petitioner's office, although it noted that "the more prudent or preferable approach for government agents would be to include a statement regarding the need of a surreptitious entry in a request for the interception of oral communications when a break-in is contemplated." Id., at 1346-1347.
Petitioner first contends that the Fourth Amendment prohibits covert entry of private premises in all cases, irrespective of the reasonableness of the entry or the approval of a court. [441 U.S. 238, 247] He contends that Title III is unconstitutional insofar as it enables courts to authorize covert entries for the installation of electronic bugging devices.
In several cases this Court has implied that in some circumstances covert entry to install electronic bugging devices would be constitutionally acceptable if done pursuant to a search warrant. Thus, for example, in Irvine v. California, 347 U.S. 128 (1954), the plurality stated that in conducting electronic surveillance, state police officers had "flagrantly, deliberately, and persistently violated the fundamental principle declared by the Fourth Amendment as a restriction on the Federal Government." Id., at 132. It emphasized that the bugging equipment was installed through a covert entry of the defendant's home "without a search warrant or other process." Ibid. (emphasis added). Similarly, in Silverman v. United States, 365 U.S. 505, 511 -512 (1961), it was noted that "[t]his Court has 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." (Emphasis added.) Implicit in decisions such as Silverman and Irvine has been the Court's view that covert entries are constitutional in some circumstances, at least if they are made pursuant to warrant.
Moreover, we find no basis for a constitutional rule proscribing all covert entries. It is well established that law officers constitutionally may break and enter to execute a search warrant where such entry is the only means by which the warrant effectively may be executed. See, e. g., Payne v. United States, 508 F.2d 1391, 1394 (CA5 1975); cf. Ker v. California, 374 U.S. 23, 28 , 38 (1963); 18 U.S.C. 3109. Petitioner nonetheless argues that covert entries are unconstitutional for their lack of notice. This argument is frivolous, as was indicated in Katz v. United States, 389 U.S. 347, 355 n. 16 (1967), where the Court stated that "officers need not [441 U.S. 238, 248] announce their purpose before conducting an otherwise [duly] authorized search if such an announcement would provoke the escape of the suspect or the destruction of critical evidence." 7 In United States v. Donovan, 429 U.S. 413, 429 n. 19 (1977), we held that Title III provided a constitutionally adequate substitute for advance notice by requiring that once the surveillance operation is completed the authorizing judge must cause notice to be served on those subjected to surveillance. See 18 U.S.C. 2518 (8) (d). There is no reason why the same notice is not equally sufficient with respect to electronic surveillances requiring covert entry. We make explicit, therefore, what has long been implicit in our decisions dealing with this subject: The Fourth Amendment does not prohibit per se a covert entry performed for the purpose of installing otherwise legal electronic bugging equipment. 8 [441 U.S. 238, 249]
Petitioner's second contention is that Congress has not given the courts statutory authority to approve covert entries for the purpose of installing electronic surveillance equipment, even if constitutionally it could have done so. Petitioner emphasizes that although Title III sets forth with meticulous care the circumstances in which electronic surveillance is permitted, there is no comparable indication in the statute that covert entry ever may be ordered. Accord, United States v. Santora, 583 F.2d 453, 457-458 (CA9 1978).
Title III does not refer explicitly to covert entry. The language, structure, and history of the statute, however, demonstrate that Congress meant to authorize courts - in certain specified circumstances - to approve electronic surveillance without limitation on the means necessary to its accomplishment, so long as they are reasonable under the circumstances. Title III provides a comprehensive scheme for the regulation of electronic surveillance, prohibiting all secret interception of communications except as authorized by certain state and federal judges in response to applications from specified federal and state law enforcement officials. See 18 U.S.C. 2511, 2515, and 2518; United States v. United States District Court, 407 U.S. 297, 301 -302 (1972). Although Congress was fully aware of the distinction between bugging and wiretapping, see S. Rep. No. 1097, 90th Cong., 2d Sess., 68 (1968), Title III by its terms deals with each form of surveillance in essentially the same manner. See 18 U.S.C. 2510 (1) and (2); n. 1, supra. Orders authorizing interceptions of either wire or oral communications may be entered only after the court has made specific determinations concerning the likelihood that the interception will disclose evidence of criminal conduct. See 18 U.S.C. 2518 (3). Moreover, with respect to both wiretapping and bugging, an authorizing court must [441 U.S. 238, 250] specify the exact scope of the surveillance undertaken, enumerating the parties whose communications are to be overheard (if they are known), the place to be monitored, and the agency that will do the monitoring. See 18 U.S.C. 2518 (4).
The plain effect of the detailed restrictions of 2518 is to guarantee that wiretapping or bugging occurs only when there is a genuine need for it and only to the extent that it is needed. 9 Once this need has been demonstrated in accord with the requirements of 2518, the courts have broad authority to "approv[e] interception of wire or oral communications," 18 U.S.C. 2516 (1), (2), subject of course to constitutional limitations. See Part II, supra. 10 Nowhere in Title III is there any indication that the authority of courts under 2518 is to be limited to approving those methods of interception that do not require covert entry for installation of the intercepting equipment. 11 [441 U.S. 238, 251]
The legislative history of Title III underscores Congress' understanding that courts would authorize electronic surveillance in situations where covert entry of private premises was necessary. Indeed, a close examination of that history reveals that Congress did not explicitly address the question of covert entries in the Act, only because it did not perceive surveillance requiring such entries to differ in any important way from that performed without entry. Testimony before subcommittees considering Title III and related bills indicated that covert entries were a necessary part of most electronic bugging operations. See, e. g., Anti-Crime Program: Hearings on H. R. 5037, etc., before Subcommittee No. 5 of the House Committee on the Judiciary, 90th Cong., 1st Sess., 1031 (1967). Moreover, throughout the Senate Report on Title III indiscriminate reference is made to the types of surveillance this Court reviewed in Berger v. New York, 388 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967). See, e. g., S. Rep. No. 1097, supra, at 74-75, 97, 101-102, 105. Apparently Committee members did not find it significant that Berger involved a covert entry, whereas Katz did not. Compare Berger v. New York, supra, at 45, with Katz v. United States, supra, at 348. 12
It is understandable, therefore, that by the time Title III [441 U.S. 238, 252] was discussed on the floor of Congress, those Members who referred to covert entries indicated their understanding that such entries would necessarily be a part of bugging authorized under Title III. Thus, for example, in voicing his support for Title III Senator Tydings emphasized the difficulties attendant upon installing necessary equipment:
Finally, Congress' purpose in enacting the statute would be largely thwarted if we were to accept petitioner's invitation to read into Title III a limitation on the courts' authority under 2518. Congress permitted limited electronic surveillance under Title III because it concluded that both wiretapping and bugging were necessary to enable law enforcement authorities to combat successfully certain forms of crime. 13 [441 U.S. 238, 253] Absent covert entry, however, almost all electronic bugging would be impossible. 14 See United States v. Ford, 414 F. Supp. 879, 882 (DC 1976), aff'd, 180 U.S. App. D.C. 1, 553 F.2d 146 (1977); McNamara, The Problem of Surreptitious Entry [441 U.S. 238, 254] to Effectuate Electronic Eavesdrops: How Do You Proceed After the Court Says "Yes"?, 15 Am. Crim. L. Rev. 1, 3 (1977). As recently as 1976, a congressional commission established to study and evaluate the effectiveness of Title III concluded that in most cases electronic surveillance cannot be performed without covert entry into the premises being monitored. See U.S. National Commission for Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance, Electronic Surveillance 15, 43, and n. 19, 86 (1976). The same conclusion was reached by the American Bar Association committee charged with formulating standards governing use of electronic surveillance. See ABA Project on Minimum Standards for Criminal Justice, Electronic Surveillance 65 n. 175, 149 (App. Draft 1971). 15
In sum, we conclude that Congress clearly understood that it was conferring power upon the courts to authorize covert entries ancillary to their responsibility to review and approve surveillance applications under the statute. To read the statute otherwise would be to deny the "respect for the policy of Congress [that] must save us from imputing to it a self-defeating, if not disingenuous purpose." Nardone v. United States, 308 U.S. 338, 341 (1939). 16
Petitioner's final contention is that, if covert entries are to be authorized under Title III, the authorizing court must [441 U.S. 238, 255] explicitly set forth its approval of such entries before the fact. In this case, as is customary, the court's order constituted the sole written authorization of the surveillance of petitioner's office. As it did not state in terms that the surveillance was to include a covert entry, petitioner insists that the entry violated his Fourth Amendment privacy rights. Accord, United States v. Ford, 180 U.S. App. D.C., at 25, 553 F.2d, at 170; Application of United States, 563 F.2d 637, 644 (CA4 1977). 17
The Fourth Amendment requires that search warrants be issued only "upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Finding these words to be "precise and clear," Stanford v. Texas, 379 U.S. 476, 481 (1965), this Court has interpreted them to require only three things. First, warrants must be issued by neutral, disinterested magistrates. See, e. g., Connally v. Georgia, 429 U.S. 245, 250 -251 (1977) (per curiam); Shadwick v. Tampa, 407 U.S. 345, 350 (1972); Coolidge v. New Hampshire, 403 U.S. 443, 459 -460 (1971). Second, those seeking the warrant must demonstrate to the magistrate their probable cause to believe that "the evidence sought will aid in a particular apprehension or conviction" for a particular offense. Warden v. Hayden, 387 U.S. 294, 307 (1967). Finally, "warrants must particularly describe the `things to be seized,'" as well as the place to be searched. Stanford v. Texas, supra, at 485. [441 U.S. 238, 256]
In the present case, the April 5 court order authorizing the interception of oral communications occurring within petitioner's office was a warrant issued in full compliance with these traditional Fourth Amendment requirements. It was based upon a neutral magistrate's independent finding of probable cause to believe that petitioner had been and was committing specifically enumerated federal crimes, that petitioner's office was being used "in connection with the commission of [these] offenses," and that bugging the office would result in the interception of "oral communications concerning these offenses." App. 6a-7a. Moreover, the exact location and dimensions of petitioner's office were set forth, see n. 4, supra, and the extent of the search was restricted to the "[i]ntercept[ion of] oral communications of Larry Dalia and others as yet unknown, concerning the above-described offenses at the business office of Larry Dalia . . . ." App. 8a. 18
Petitioner contends, nevertheless, that the April 5 order was insufficient under the Fourth Amendment for its failure to specify that it would be executed by means of a covert [441 U.S. 238, 257] entry of his office. Nothing in the language of the Constitution or in this Court's decisions interpreting that language suggests that, in addition to the three requirements discussed above, search warrants also must include a specification of the precise manner in which they are to be executed. On the contrary, it is generally left to the discretion of the executing officers to determine the details of how best to proceed with the performance of a search authorized by warrant 19 - subject of course to the general Fourth Amendment protection "against unreasonable searches and seizures."
Recognizing that the specificity required by the Fourth Amendment does not generally extend to the means by which warrants are executed, petitioner further argues that warrants for electronic surveillance are unique because often they impinge upon two different Fourth Amendment interests: The surveillance itself interferes only with the right to hold private conversations, whereas the entry subjects the suspect's property to possible damage and personal effects to unauthorized examination. This view of the Warrant Clause parses too finely the interests protected by the Fourth Amendment. Often in executing a warrant the police may find it necessary to interfere with privacy rights not explicitly considered by the judge who issued the warrant. For example, police executing an arrest warrant commonly find it necessary to enter [441 U.S. 238, 258] the suspect's home in order to take him into custody, and they thereby impinge on both privacy and freedom of movement. See, e. g., United States v. Cravero, 545 F.2d 406, 421 (CA5 1976) (on petition for rehearing). Similarly, officers executing search warrants on occasion must damage property in order to perform their duty. See, e. g., United States v. Brown, 556 F.2d 304, 305 (CA5 1977); United States v. Gervato, 474 F.2d 40, 41 (CA3), cert. denied, 414 U.S. 864 (1973).
It would extend the Warrant Clause to the extreme to require that, whenever it is reasonably likely that Fourth Amendment rights may be affected in more than one way, the court must set forth precisely the procedures to be followed by the executing officers. Such an interpretation is unnecessary, as we have held - and the Government concedes - that the manner in which a warrant is executed is subject to later judicial review as to its reasonableness. See Zurcher v. Stanford Daily, 436 U.S. 547, 559 -560 (1978). 20 More important, we would promote empty formalism were we to require magistrates to make explicit what unquestionably is implicit in bugging authorizations: 21 that a covert entry, with its attendant interference with Fourth Amendment interests, may be necessary for the installation of the surveillance equipment. See United States v. London, 424 F. Supp. 556, 560 (Md. 1976). We conclude, therefore, that the Fourth Amendment does not require that a Title III electronic surveillance order include a [441 U.S. 238, 259] specific authorization to enter covertly the premises described in the order. 22
The judgment of the Court of Appeals is
[ Footnote 2 ] Every electronic surveillance necessarily is "covert" in the sense that it must be "hidden; secret; disguised" to be effective. Webster's New International Dictionary 613 (2d ed. 1953). As used here, "covert entry" refers to the physical entry by a law enforcement officer into private premises without the owner's permission or knowledge in order to install bugging equipment. Generally, such an entry will require a breaking and entering. See discussion infra, at 253-254.
[ Footnote 3 ] The Federal Courts of Appeals have given conflicting answers to these questions. See United States v. Finazzo, 583 F.2d 837 (CA6 1978); United States v. Santora, 583 F.2d 453 (CA9 1978); United States v. Scafidi, 564 F.2d 633 (CA2 1977), cert. denied, 436 U.S. 903 (1978); United States v. Ford, 180 U.S. App. D.C. 1, 553 F.2d 146 (1977); United States v. Agrusa, 541 F.2d 690 (CA8 1976), cert. denied, 429 U.S. 1045 (1977).
[ Footnote 4 ] In relevant part, the Title III order of April 5 provided:
[ Footnote 5 ] Count one charged petitioner and others with conspiring to transport, receive, and possess stolen goods in violation of 18 U.S.C. 2, 2314, 2115, and 659. Count two charged petitioner and others with conspiring to obstruct interstate commerce in violation of 18 U.S.C. 1951 (b) (1). Count three charged that petitioner had transported stolen goods; count four charged that he had received stolen goods; and count five charged petitioner with possession of stolen goods.
[ Footnote 6 ] Petitioner was convicted of receiving stolen goods and conspiring to transport, receive, and possess stolen goods. See n. 5, supra.
[ Footnote 7 ] One authority has said that the constitutional validity of covert entries to install bugs "is plainly the consequence of [the] reasoning" of Katz v. United States. T. Taylor, Two Studies in Constitutional Interpretation 114 (1969).
[ Footnote 8 ] Petitioner argues that, even if a covert entry would be constitutional in some cases, it was not in the present case, as there was no need for such entry. The District Court, however, specifically found that the "safest and most successful method of accomplishing the installation of the wiretapping device was through breaking and entering [the office]." 426 F. Supp. 862, 866 (1977). Moreover, in issuing the Title III order, the court found that "[n]ormal investigative procedures reasonably appear to be unlikely to succeed and are too dangerous to be used." App. 7a. And in his opinion denying petitioner's subsequent suppression motion, the same judge stated:
[ Footnote 9 ] It is clear that Title III serves a substantial public interest. See n. 13, infra. Congress and this Court have recognized, however, that electronic surveillance can be a threat to the "cherished privacy of law-abiding citizens" unless it is subjected to the careful supervision prescribed by Title III. See United States v. United States District Court, 407 U.S. 297, 312 (1972).
[ Footnote 10 ] Congress explicitly confirmed the breadth of the power it had conferred on courts acting under Title III when it amended the Act in 1970. Pub. L. 91-358, Title II, 211 (b), 84 Stat. 654. Section 2518 (4) now empowers a court authorizing electronic surveillance to "direct that a . . . landlord, custodian or other person shall furnish the applicant forthwith all information, facilities, and technical assistance necessary to accomplish the interception unobtrusively . . . ." (Emphasis added.) Thus, it appears that Congress anticipated that landlords and custodians may be enlisted to aid law enforcement officials covertly to enter and place the necessary equipment in private areas.
[ Footnote 11 ] The only limitation Title III places on the manner in which these court orders are to be executed is in its requirements that no order extend beyond 30 days, and that every order must include provisions that it is to be executed as soon as practicable and in a manner that will minimize the [441 U.S. 238, 251] interception of communications not within the purview of the order. See 18 U.S.C. 2518 (5).
[ Footnote 12 ] Indeed, the nature of electronic surveillance involved in Berger v. New York was mentioned on the floor of the Senate, when Senator Long observed that under the New York law, police could "obtain judicial warrants authorizing them to hide bugs in the premises of criminal suspects." 114 Cong. Rec. 14708 (1968). To be sure, in his comments Senator Long did not explicitly suggest that Title III would authorize such covert entries. See post, at 272. His statement confirmed, however, what had been strongly indicated prior to the bill's consideration by the full Congress: Members of Congress simply saw no distinction between electronic surveillance which required covert entry and that which required covert tapping of one's telephone. The invasion of the privacy of conversation is the same in both situations.
[ Footnote 13 ] Title 18 U.S.C. 2516 specifies that authorization for electronic surveillance may be sought only with respect to certain enumerated crimes. These include espionage, sabotage, treason, kidnaping, robbery, extortion, murder, various corrupt practices, and counterfeiting. According to the [441 U.S. 238, 253] Senate Report concerning Title III, "[e]ach offense has been chosen either because it is intrinsically serious or because it is characteristic of the operations of organized crime." S. Rep. No. 1097, 90th Cong., 2d Sess., 97 (1968). The need for use of electronic surveillance against organized crime had been thoroughly considered and documented, shortly before Congress began considering Title III, by a special organized-crime Task Force of a Presidential Commission charged with considering crime in the United States. The President's Commission on Law Enforcement and Administration of Justice, Task Force Report: Organized Crime 91-104 (1967); see United States v. United States District Court, 407 U.S., at 310 n. 9. A summary of the Task Force's conclusions appeared in the Commission's report, which was repeatedly referred to during consideration of Title III. See The President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 200-203 (1967). In Congress, proponents of Title III, after hearing numerous witnesses testify concerning the importance of electronic surveillance in fighting organized crime, recommended the bill to their colleagues as "[l]egislation meeting the constitutional standards set out in [Supreme Court] decisions, and granting law enforcement officers the authority to tap telephone wires and install electronic surveillance devices in the investigation of major crimes." S. Rep. No. 1097, supra, at 75; see id., at 74. Indeed, the Senate Report on Title III unequivocally stated that "[t]he major purpose of title III is to combat organized crime." Id., at 70. The rapid developments in technology available to the criminal underworld make it all the more imperative that the Government not "deny to itself the prudent and lawful employment of those very techniques which are employed against the Government and its law-abiding citizens." United States v. United States District Court, supra, at 312.
[ Footnote 14 ] Although he cites no authority, MR. JUSTICE STEVENS apparently believes that a practicable alternative to covert entry would be installation of bugging devices through subterfuge. See post, at 272. Nowhere in the legislative history of Title III is there any indication that Congress wished to limit its authorization to bugs installed through subterfuge. Moreover, it is difficult to perceive why one means of gaining entry would be less intrusive than another. See, e. g., United States v. Ford, 414 F. Supp. 879 (DC 1976), aff'd, 180 U.S. App. D.C. 1, 553 F.2d 146 (1977) (bombscare ruse).
[ Footnote 15 ] Those few available devices that intercept conversation from outside of a building in many cases are impractical, either because of cost, reliability, or the configuration of the area being monitored. See U.S. National Commission for Review of Federal and State Laws Relating to Wiretapping and Electronic Surveillance, Commission Studies 168-183 (1976); see, e. g., United States v. Ford, 414 F. Supp., at 881.
[ Footnote 16 ] As we have concluded that Title III authorizes courts to approve covert entries to install electronic surveillance equipment, we do not consider whether such authority also is conferred by other federal enactments, such as Fed. Rule Crim. Proc. 41 or the All Writs Act, 28 U.S.C. 1651.
[ Footnote 17 ] There is no requirement in Title III that explicit authorization of covert entries be set forth in the court's order. The statutory requirement that the surveillance "should remain under the control and supervision of the authorizing court" 82 Stat. 211, 801 (d), merely emphasizes that courts acting under 18 U.S.C. 2518 should utilize their power under 2518 (6) to require periodic progress reports after the installation of the wiretap or bug. If there is a requirement of explicit judicial authorization for covert entry, therefore, it must come from the Fourth Amendment alone.
[ Footnote 18 ] Because of the strict requirements of Title III, all of the indicia of a warrant necessarily are present whenever an order under Title III is issued. Accord, United States v. Scafidi, 564 F.2d, at 644 (Gurfein, J., concurring). Indeed, it was Congress' express design to create under Title III a mechanism by which search warrants valid under the Fourth Amendment would be issued for electronic surveillance. See S. Rep. No. 1097, supra n. 13, at 105; Controlling Crime Through More Effective Law Enforcement: Hearings on S. 300, etc., before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 90th Cong., 1st Sess., 176, 570, 919 (1967); Hearings on H. R. 5037, etc., before Subcommittee No. 5 of the House Committee on the Judiciary, 90th Cong., 1st Sess., 917, 934 (1967). No less would be required for the court authorization of electronic surveillance under Title III to be constitutional, as electronic surveillance undeniably is a Fourth Amendment intrusion requiring a warrant. See, e. g., Katz v. United States, 389 U.S. 347, 352 -353, 356-357 (1967). And we have explicitly recognized the necessity of a warrant in cases of electronic surveillance. See United States v. United States District Court, 407 U.S., at 316 -320.
[ Footnote 19 ] For example, courts have upheld the use of forceful breaking and entering where necessary to effect a warranted search, even though the warrant gave no indication that force had been contemplated. See, e. g., United States v. Gervato, 474 F.2d 40, 41 (CA3), cert. denied, 414 U.S. 864 (1973). To be sure, often it is impossible to anticipate when these actions will be necessary. See Note, Covert Entry in Electronic Surveillance: The Fourth Amendment Requirements, 47 Ford. L. Rev. 203, 214 (1978). Nothing in the decisions of this Court, however, indicates that officers requesting a warrant would be constitutionally required to set forth the anticipated means for execution even in those cases where they know beforehand that unannounced or forced entry likely will be necessary. See 2 W. LaFave, Search and Seizure 140 (1978).
[ Footnote 20 ] The District Court found that covert entry in the present case was reasonable. The officers entered petitioner's office only twice: once to install the bug and once to remove it. There is no indication that their intrusion went beyond what was necessary to install and remove the equipment. See n. 8, supra.
[ Footnote 21 ] In the present case, the District Court specifically noted that its order implicitly had authorized covert entry. See supra, at 246. Thus, contrary to the suggestion of the dissent, see post, at 270 n. 20, there is no question in this case "of the Executive's authority to break and enter at will without any judicial authorization."
[ Footnote 22 ] Although explicit authorization of the entry is not constitutionally required, we do agree with the Court of Appeals that the "preferable approach" would be for Government agents in the future to make explicit to the authorizing court their expectation that some form of surreptitious entry will be required to carry out the surveillance. Indeed, the Solicitor General has informed us that the Department of Justice has adopted a policy requiring its officers "[to] include [in applications for Title III orders] a request that the order providing for the interception specifically authorize surreptitious entry for the purpose of installing and removing any electronic interception devices to be utilized in accomplishing the oral interception." See Brief for United States 56.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART joins except as to Part I, concurring in part and dissenting in part.
I concur in Parts I and II of the Court's opinion.
I dissent from Part III for the reasons stated in the dissenting opinion of MR. JUSTICE STEVENS which I join.
I also dissent from Part IV. In my view, even reading Title III to authorize covert entries, the Justice Department's present practice of securing specific authorization for covert entries is not only preferable, see ante, this page n. 22, but also constitutionally required.
Breaking and entering into private premises for the purpose of planting a bug cannot be characterized as a mere mode of warrant execution to be left to the discretion of the executing officer. See ante, at 257. The practice entails an invasion [441 U.S. 238, 260] of privacy of constitutional significance distinct from that which attends nontrespassory surveillance; indeed, it is tantamount to an independent search and seizure. First, rooms may be bugged without the need for surreptitious entry and physical invasion of private premises. See Lopez v. United States, 373 U.S. 427, 467 -468 (1963) (BRENNAN, J., dissenting). Second, covert entry, a practice condemned long before we condemned unwarranted eavesdropping, see Silverman v. United States, 365 U.S. 505 (1961), breaches physical as well as conversational privacy. The home or office itself, that "inviolate place which is a man's castle," id., at 512 n. 4, is invaded. Third, the practice is particularly intrusive and susceptible to abuse since it leaves naked to the hands and eyes of government agents items beyond the reach of simple eavesdropping.
Because of these additional intrusions attendant to covert entries, the Constitution requires that government agents who wish to break into private premises first secure specific judicial authorization for the surreptitious entry. Authority for the physical invasion cannot be derived from a Title III order authorizing only electronic surveillance.
Nor can I agree that adherence to the strictures of the Warrant and Particularity Clauses of the Fourth Amendment would amount to "empty formalism." See ante, at 258. Since premises may be bugged through means less drastic than home invasion, requiring police to secure prior approval for covert entries may well prevent unnecessary and improper intrusions. In any event, that the present case may not appear particularly abusive cannot justify the Court's crabbed interpretation of the Fourth Amendment. Mr. Justice Bradley's [441 U.S. 238, 262] admonition almost a century ago has even greater cogency in today's world of ever more intrusive governmental invasions of privacy:
[ Footnote * ] The Court's reliance upon United States v. Cravero, 545 F.2d 406, 421 (CA5 1976) (on petition for rehearing), for the opposite proposition is misplaced. In Cravero, police could not have anticipated the need to arrest the suspect at his home at the time the arrest warrant was issued. It would have been unreasonable, therefore, to require the warrant to specify a home arrest. Here, by contrast, the covert entry was easily foreseeable. There is no reason why the federal agents who secured the [441 U.S. 238, 261] warrant could not have advised the judge who issued the warrant that they contemplated covert entry. Indeed, the current Justice Department practice of securing specific prior authorization for covert entries demonstrates the practicability of a constitutional prior-authorization requirement.
United States v. Gervato, 474 F.2d 40, 41 (CA3 1973), is distinguishable for the same reason and also because Gervato involved a mere mode of warrant execution (forcible entry) rather than an invasion of two separate expectations of privacy.
MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL join, dissenting.
At midnight on the night of April 5-6, 1973, three persons pried open a window to petitioner's business office and secretly entered the premises. During the next three hours they moved freely about the building, eventually implanting a listening device in the ceiling. Several weeks later, they again broke into the office at night and removed the device.
The perpetrators of these break-ins were agents of the Federal Bureau of Investigation. Their office, however, carries with it no general warrant to trespass on private property. Without legislative or judicial sanction, the conduct of these agents was unquestionably "unreasonable" and therefore prohibited by the Fourth Amendment. 1 Moreover, that conduct [441 U.S. 238, 263] violated the Criminal Code of the State of New Jersey unless it was duly authorized. 2
The only consideration that arguably might legitimate these "otherwise tortious and possibly criminal" invasions of petitioner's private property, 3 is the fact that a federal judge had entered an order authorizing the agents to use electronic equipment to intercept oral communications at petitioner's office. The order, however, did not describe the kind of equipment to be used and made no reference to an entry, covert or otherwise, into private property. Nor does any statute expressly permit such activity or even authorize a federal judge to enter orders granting federal agents a license to commit criminal trespass. The initial question this case raises, therefore, is whether this kind of power should be read into a statute that does not expressly grant it.
In my opinion, there are three reasons, each sufficient by itself, for refusing to do so. First, until Congress has stated otherwise, our duty to protect the rights of the individual should hold sway over the interest in more effective law enforcement. Second, the structural detail of this statute precludes a reading that converts silence into thunder. Third, the legislative history affirmatively demonstrates that Congress never contemplated the situation now before the Court.
The Court does not share this view. For this is the third time in as many years that it has condoned a serious intrusion on privacy that was not explicitly authorized by statute and that admittedly raised a substantial constitutional question. In United States v. Ramsey, 431 U.S. 606 , the Court upheld an Executive regulation authorizing postal inspectors to open private letters without probable cause to believe they contained contraband. 8 In United States v. New York Telephone Co., 434 U.S. 159 , the Court upheld orders authorizing the surreptitious pen-register surveillance of an individual and directing a private company to lend its assistance in that endeavor. Again, no explicit statutory authority existed for either order, despite Congress' otherwise comprehensive treatment of wire surveillance in Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III). 9 [441 U.S. 238, 266]
Today the Court has gone even further in finding an implicit grant of Executive power in Title III. That Title "does not refer explicitly to covert entry" of any kind, much less to entries that are tortious or criminal. Ante, at 249. Nevertheless, the Court holds that Congress, without having said so explicitly, has authorized the agents of a national police force in carrying out a surveillance order to break into private premises 10 in violation of state law. Moreover, the Court finds in the silent statute an open-ended authorization to effect such illegal entries without an explicit judicial determination that there is probable cause to believe they are necessary or even appropriate. In my judgment, it is most unrealistic to assume that Congress granted such broad and controversial authority to the Executive without making its intention to do so unmistakably plain. This is the paradigm case in which "the exact words of the statute provide the surest guide to determining Congress' intent." 11 I would not enlarge the coverage of the statute beyond its plain meaning.
The Court's conclusion that the statute implicitly authorizes breaking and entering is especially anomalous because the statutory scheme in all other respects is exhaustive and explicit. 12 [441 U.S. 238, 267] "It simply does not make sense" 13 to conclude that Congress - having minutely detailed (1) the process that "[t]he Attorney General, or any Assistant Attorney General specially designated by the Attorney General" must follow in authorizing federal police officers to seek an electronic surveillance order, 14 (2) the limited number of suspected offenses that will justify such an order, 15 (3) the showing that must be made to "a Federal judge" before he issues the order, 16 (4) the [441 U.S. 238, 268] standard the judge must apply in approving, and the format he must follow in preparing, the order, 17 (5) the time frame of execution and the manner of execution with respect to [441 U.S. 238, 269] minimizing the interception of communications not likely to involve criminal activity, 18 and even having more recently specified (6) certain "unobtrusive" means by which those [441 U.S. 238, 270] orders might be carried out without the awareness of the suspect 19 - was content to leave national police officers with unbounded authority to carry out the resulting orders in any unspecified and obtrusive fashion they chose "subject of course to constitutional limitations." Ante, at 250. 20 [441 U.S. 238, 271]
In my view, it is the opposite conclusion that is true to the statutory structure. For "one simply cannot assume that Congress," see ante, at 252, wished to erect various procedural barriers against poor judgment on the part of the Attorney General and his subordinates in seeking, and on the part of federal district judges in issuing, eavesdropping orders only to commit their execution, even through illegal means, entirely to "the judgment and moderation of officers whose own interests and records are often at stake in the search." Brinegar v. United States, 338 U.S. 160, 182 (Jackson, J., dissenting). The detailed timing and minimization restrictions on the executing officer, see n. 18, supra, as well as the 1970 amendment to Title III concerning "unobtrusive" execution, see n. 19, supra, lead inescapably to the conclusion that Congress withheld authority to trespass on private property except through the limited means expressly dealt with in the statute. 21
Only one relevant conclusion can be drawn from a review of the entire legislative history of Title III. The legislators never even considered the possibility that they were passing a statute that would authorize federal agents to break into private premises without any finding of necessity by a neutral and detached magistrate.
The meager legislative remarks that are said to demonstrate that Title III's supporters implicitly endorsed breaking and [441 U.S. 238, 272] entering in order to install listening devices actually provide no support for that conclusion.
The reference to "judicial warrants authorizing [police] to hide bugs in the premises of criminal suspects," see ante, at 251 n. 12, was a comment by an opponent of the bill on investigative techniques that he believed this Court had ruled illegal in Berger v. New York, 388 U.S. 41 . 22 Since neither he, nor any supporter of the bill, suggested that those techniques would be authorized by Title III, his comment is hardly indicative of a legislative endorsement of such practices. Moreover, there is a marked difference between the judicially warranted "hid[ing of] bugs in the premises of criminal suspects" and a forcible entry that has not been expressly authorized by any judge. The difference between subterfuge and forcible trespass should not be ignored.
That difference explains why the Court's reliance on two statements by proponents of Title III that emphasize the technological limitations on "bugs" and "taps" is misplaced. The proponents believed these limitations would discourage the frequent use and abuse of electronic surveillance. Thus, in answer to repeated charges that passage of Title III would recreate Hitler's Germany or anticipate Orwell's "1984," Senator Tydings, in a passage partially quoted by the Court, ante, at 252, argued:
Even the opponents of Title III, in parading before Congress the various invasions of privacy that they felt would accompany the passage of the statute, never once referred to breaking and entering private property. E. g., id., at 14710 (Sen. Cooper); id., at 14732 (Sen. Yarborough); id., at 16066 (Rep. Celler). That they omitted such references while decrying far less aggravated invasions is strong evidence that they, at least, never thought about the issue that this case raises. 25 And since the sponsors of the legislation expressly stated that they had specified "every possible constitutional safeguard for the rights of individual privacy," id., at [441 U.S. 238, 275] 14469 (Sen. McClellan), 26 their omission of any significant reference to these aggravated intrusions surely demonstrates that they did not consider this issue either.
In sum, as far as my research reveals, during the debates on Title III neither the proponents nor the opponents of the bill directly or indirectly expressed the view that the statute would authorize uninvited forcible trespasses by police officers as a means of implanting a listening device.
Because the drafters of Title III made "indiscriminate reference . . . to the types of surveillance this Court reviewed" in prior cases, ante, at 251, the Court draws the conclusion that Congress meant to authorize all "types of surveillance" discussed in those cases. The premise does not support the conclusion.
Many of those cases, including the two specifically cited by the Court, 27 held that the police conduct involved was unlawful. Rather than endorsing all of the techniques discussed in those cases, Congress was quite clearly trying to avoid the incidents of unconstitutionality those cases had [441 U.S. 238, 276] identified. 28 Moreover, in drafting Title III, the Senate Judiciary Committee did more than merely isolate and exclude from the bill the illegal elements of the police activity involved in those cases. Thus, the Chairman of the Committee, in answer to a colleague's question whether Title III was drafted in conformity with the Fourth Amendment, stated:
Irvine v. California, 347 U.S. 128 , was the only pre-1968 case in which this Court had actually confronted the implantation of an electronic listening device by way of a "trespass, and probably a burglary, for which any unofficial person should be, and probably would be, severely punished." Id., at 132. 31 The plurality of four, speaking through Mr. Justice Jackson, had this to say about the police conduct in that case:
More importantly, the fact that Congress cited Irvine, without comment or explanation, when it was considering Title III cannot fairly be interpreted as an endorsement of the questionable police behavior that had been condemned so thunderously by Mr. Justice Jackson 14 years earlier. My respect for the lawmaking process forecloses the inference that Congress authorized burglarious conduct by such stealthy legislative history.
Because it is not supported by either the text of the statute or the scraps of relevant legislative history, 33 I fear that the [441 U.S. 238, 279] Court's holding may reflect an unarticulated presumption that national police officers have the power to carry out a surveillance order by whatever means may be necessary unless explicitly prohibited by the statute or by the Constitution.
But surely the presumption should run the other way. Congressional silence should not be construed to authorize the Executive to violate state criminal laws or to encroach upon constitutionally protected privacy interests. Before confronting the serious constitutional issues raised by the Court's reading of Title III, 34 we should insist upon an unambiguous statement by Congress that this sort of police conduct may be authorized by a court and that a specific showing of necessity, or at least probable cause, must precede such an authorization. Without a legislative mandate that is both explicit and specific, I would presume that this flagrant invasion of the citizen's privacy is prohibited. Cf. United States v. New York Telephone Co., 434 U.S., at 178 -179 (STEVENS, J., dissenting [441 U.S. 238, 280] in part); United States v. Ramsey, 431 U.S., at 632 (STEVENS, J., dissenting). 35
I respectfully dissent.
[ Footnote 2 ] N. J. Stat. Ann. 2A:94-1, 2A:94-3 (West 1969).
[ Footnote 3 ] T. Taylor, Two Studies in Constitutional Interpretation 110 (1969).
[ Footnote 5 ] "Beginning with the Act of July 31, 1789, 1 Stat. 29, 43, and concluding with the Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 197, 219, 238, Congress has enacted a series of over 35 different statutes granting federal judges the power to issue search warrants of one form or another. These statutes have one characteristic in common: they are specific in their grants of authority and in their inclusion of limitations on either the places to be searched, the objects of the search, or the requirements for the issuance of a warrant." United States v. New York Telephone Co., 434 U.S. 159, 179 -180 (STEVENS, J., dissenting in part) (footnote omitted).
Mr. Justice Frankfurter gathered the pre-1945 statutes in his dissenting opinion in Davis v. United States, 328 U.S. 582, 616 -623. He commented that "[w]hat is significant about this legislation is the recognition by Congress of the necessity for specific Congressional authorization even for the search of vessels and other moving vehicles and the seizures of goods technically contraband." Id., at 616, n.
[ Footnote 6 ] I realize that since Mapp v. Ohio, 367 U.S. 643 , the Court has applied the same Fourth Amendment principles to state and federal law enforcement officers alike. Nonetheless, I purposely limit my discussion here to the federal context. For purposes of discussing the necessity of statutory authority, it seems useful to me to treat the Fourth Amendment [441 U.S. 238, 265] concept of reasonableness as flexible enough to recognize differences between state and federal courts and police forces. Thus, because the power of the Federal Government to combat crime, like the jurisdiction of its courts, is more limited than the comparable power and jurisdiction inhering in the States, it is logical in the federal context to assume that governmental authority is lacking unless expressly mandated by legislation. See, e. g., Palmore v. United States, 411 U.S. 389, 396 ; Cheng Fan Kwok v. INS, 392 U.S. 206 ; United States v. Five Gambling Devices, 346 U.S. 441 .
[ Footnote 7 ] See McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10 ; Machinists v. Street, 367 U.S. 740 ; Hannah v. Larche, 363 U.S. 420, 430 ; Murray v. The Charming Betsy, 2 Cranch 64.
[ Footnote 8 ] It found authority for those searches in the Postal Service's recent reinterpretation of an awkwardly drawn 1866 statute that authorized certain border searches of "vessels" but that could not reasonably be read to authorize either the mail openings themselves or the regulation allowing them. Moreover, its adoption of that interpretation left it no choice but to resolve a troublesome constitutional question without any considered guidance from Congress. See 431 U.S., at 625 -632 (STEVENS, J., dissenting).
[ Footnote 10 ] Although this case involves an office, the invasion of a home would raise precisely the same statutory issue.
[ Footnote 11 ] "Congress drafted [Title III] with exacting precision. As its principal sponsor, Senator McClellan, put it:
[ Footnote 12 ] See ante, at 249-250; nn. 13-18, infra, and text accompanying.
[ Footnote 13 ] As Judge Merritt, writing for the Sixth Circuit, cogently observed:
[ Footnote 14 ] 18 U.S.C. 2516 (1).
[ Footnote 15 ] 18 U.S.C. 2516 (1) (a)-(g).
[ Footnote 16 ] "Each application for an order authorizing or approving the interception of a wire or oral communication shall be made in writing upon oath or affirmation to a judge of competent jurisdiction and shall state the [441 U.S. 238, 268] applicant's authority to make such application. Each application shall include the following information:
[ Footnote 17 ] "(3) Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire or oral communications within the territorial jurisdiction of the court in which the judge is sitting, if the judge determines on the basis of the facts submitted by the applicant that -
[ Footnote 18 ] "No order entered under this section may authorize or approve the interception of any wire or oral communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days. Extensions of an order may be granted, but only upon application for an extension made in accordance with subsection (1) of this section and the court making the findings required by subsection (3) of this section. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than thirty days. Every order and extension thereof shall 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 [441 U.S. 238, 270] subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in thirty days." 18 U.S.C. 2518 (5).
The statute also details procedures for the storage and protective custody of the resulting tapes, 18 U.S.C. 2518 (8) (a)-(c), for authorized disclosures and uses of the tapes both in and out of court, 18 U.S.C. 2517, 2518 (9), and for after-the-fact notice to persons whose conversations were overheard. 18 U.S.C. 2518 (8) (d).
[ Footnote 19 ] The following provision was added to Title III in 1970:
[ Footnote 20 ] The Court analyzes this problem as simply one of Judicial authority under the statute. Ante, at 250, and n. 10. Even if I could agree that Title III afforded judges "broad" and unconfined authority with respect to break-ins, I would still be left with the problem, never mentioned by the Court, of the Executive's authority to break and enter at will without any judicial authorization.
Indeed, I am not at all certain that the Court puts any confines on either Judicial or Executive authority in this area, despite the lip service it pays to "constitutional limitations." For, having stated that "breaking and entering" in execution of a search warrant is constitutionally permissible "where such entry is the only means by which the warrant effectively may be executed," ante, at 247 (emphasis added), the Court then equates a surveillance order with a search warrant, but see Taylor, supra n. 3, at 84-85, and allows a break-in under the former upon a showing merely that the break-in was "the safest and most successful," rather than the "only," method of installing the device. 426 F. Supp. 862, 866.
[ Footnote 21 ] A Congress that was careful to limit the temporal extent of electronic surveillance and the opportunity for it to infringe on protected (i. e., noncriminal) conversations, and one so quick to amend the statute to provide for "unobtrusive" entry through the aid of private persons (i. e., "custodians" and "landlords") who already have a degree of access to the property, surely cannot have condoned unlimited and unauthorized breaking and entering by police officers with the aid of nothing but a burglar's tools.
[ Footnote 22 ] In full, the paragraph excerpted by the Court is as follows:
[ Footnote 23 ] See also Anti-Crime Programs: Hearings on H. R. 5037, etc., before Subcommittee No. 5 of the House Committee on the Judiciary, 90th Cong., 1st Sess., 1031 (1967), cited ante, at 251.
[ Footnote 24 ] "[Title III] sets forth in the most elaborate and precise detail the safeguards surrounding the application to a court of competent jurisdiction for authority to make a wiretap. I am satisfied that it is fully designed to guard against any unwarranted invasion of the precious right of privacy." 114 Cong. Rec. 16296 (1968) (Rep. MacGregor). See also id., at 14763 (Sen. Percy); id., at 16296 (Rep. Boland); S. Rep. No. 1097, 90th Cong., 2d Sess., 66 (1968).
On at least two occasions the Court has commented on the circumspection with which Title III was drafted:
[ Footnote 25 ] Had Congress expressly considered the issue, I am confident that it would not have granted the Executive the broad authority to break and enter that is conferred by the Court in today's decision. Illustrative of its probable reaction to such investigative techniques are the responses of some Members to the officially sanctioned break-in committed against the office of Daniel Ellsberg's psychiatrist, and to the possibility of official participation in the Watergate break-in E. g., 119 Cong. Rec. 14607-14608 (1973) (Sen. Edwards); id., at 15332 (Rep. Sarasin).
[ Footnote 26 ] The dimensions of the constitutional protection of privacy were certainly not underestimated by the supporters of Title III. Senator Lausche, for example, had this to say about the intent of the Framers of the Fourth Amendment:
[ Footnote 28 ] See S. Rep. No. 1097, supra, at 66, 75, 101.
[ Footnote 30 ] E. g., Silverman v. United States, supra; Irvine v. California, supra.
[ Footnote 31 ] Mr. Justice Jackson described the entry as follows:
[ Footnote 32 ] Id., at 145 (Frankfurter, J., dissenting, joined by Burton, J.); id., at 150 (Douglas, J., dissenting).
[ Footnote 33 ] The Court argues that Congress' goals in enacting the statute would be frustrated if Title III were not read to include the authority exercised by the Government in this case. Ante, at 252-254. Of course, if Congress intended to sanction "even the most reprehensible means for securing a conviction," Irvine, 347 U.S., at 146 (Frankfurter, J., dissenting), then withholding some of those means would indeed frustrate the legislative purpose. But there is no reason to impute such an intent to Congress or to ignore its conscientious attention to the importance of safeguarding the [441 U.S. 238, 279] rights of individual privacy. See 114 Cong. Rec. 14469-14470 (1968) (Sen. McClellan); see supra, at 272-273, 276.
Congress quite clearly expected exterior wiretaps to provide the most effective means of electronic surveillance authorized by Title III. The unavailability of certain interior "bugs" - i. e., those implanted by means of forcible trespass - can hardly be seen as frustrating the entire law enforcement scheme. E. g., S. Rep. No. 1097, supra n. 24, at 72; 114 Cong. Rec. 12988 (1968) (Sen. Tydings); id., at 13206 (Sen. Scott); id., at 14481 (Sen. McClellan); id., at 14714 (Sen. Murphy).
Congress' prediction proved correct:
[ Footnote 34 ] Compare opinion of the Court, ante, at 246-248, 254-259, with opinion of MR. JUSTICE BRENNAN, ante, at 259-262.
[ Footnote 35 ] In addition to Title III, the Government claims authority for the break-ins under the federal "no-knock" statute, 18 U.S.C. 3109, and under Fed. Rule Crim. Proc. 41. Because I believe that Title III has preempted the field of electronic surveillance, it is conclusive for me that it nowhere authorizes the entries involved in this case as a means of executing an eavesdropping order. Even if Congress had never enacted Title III, however, I would nonetheless conclude that these other asserted justifications for official breaking and entering are unavailing in this case. Both provisions refer to "warrants" issued by a magistrate with the awareness that their execution would probably require the police to find some otherwise illegal means of entering the premises. No such awareness was evidenced by the District Court when it authorized electronic surveillance in this case. See generally United States v. Finazzo, supra, at 845-848. [441 U.S. 238, 281]