The opinion of the court was delivered by: WEIS
All the defendants have been indicted for various gambling activities alleged to be in violation of 18 U.S.C. §§ 2, 371, 1084, 1952. They have filed Motions to Suppress Evidence consisting of intercepted telephone messages secured by the Federal Bureau of Investigation in accordance with Orders of Court issued pursuant to 18 U.S.C. § 2510 et seq.
The attack upon the wiretap evidence is based upon the following contentions:
1. The statute is unconstitutional;
2. The statute was not followed because:
a) There was no showing of probable cause to justify the issuance of the Order;
b) The Government failed to file written reports with the authorizing judge within the 5 day interval set out in the Order;
c) The Government failed to file an inventory within the prescribed time, not having complied with the requirement until some 9 days after the expiration date on one intercept Order;
d) Letters bearing the signature of Will Wilson, an Assistant Attorney General, authorizing the applications for Court Orders were in fact signed by someone else, not in the category of those authorized by § 2516(1);
a) The interception of certain specific conversations under circumstances not authorized by the Order;
b) A failure on the part of the Government agents to minimize the interception of nonrelevant communications.
Counsel for the defendants argue vigorously that the wiretapping provisions of the Omnibus Crime Control Act of 1968 are unconstitutional. We note, however, that the Supreme Court of the United States in Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 and Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 indicated that wiretapping under certain circumstances could be constitutionally permissible. Congress specifically considered these two cases in enacting the applicable statute in 1968. See 2 U.S. Cong. & Adm. News 1968, p. 2112.
Many of the arguments defendants press with respect to unconstitutionality of wiretapping generally are really concerned more with the policy and the undesirability of such a practice. There is no question that there was and is strong opposition to the very idea of the invasion of privacy necessarily involved with wiretapping.
On the other hand, those who are in favor of the practice, while recognizing the disadvantages, rely upon the necessity for electronic surveillance as a weapon in the struggle against organized crime.
It would not be appropriate to set out the arguments pro and con, it being sufficient to note that this, in reality, is a controversy which attracted the attention of Congress for many years, was thoroughly explored by that body, and was a subject of numerous hearings, compilation of data and testimony of experts on both sides.
In determining the necessity of the legislation, Congress found that "Organized criminals make extensive use of wire and oral communication in their criminal activities. The interception of such communications to obtain evidence of the commission of crimes or to prevent their commission is an indispensable aid to law enforcement and the administration of justice." 82 Stat., p. 211, § 801(c), 18 U.S.C.A. § 801(c).
While there was not unanimity among the members of Congress and the wire interception provisions of the Omnibus Crime Control Act were passed only over bitter dissent, nevertheless for this Court the debate has ended and the statute has become the law of the land.
In view of the history of this legislation and its reliance upon the Supreme Court guideposts, we feel its constitutionality has been prima facie established. The only appellate decision on the point to this time is United States v. Cox, 449 F.2d 679 (10th Cir. 1971), which upheld the validity of the Act. A number of District Courts have come to this same conclusion and none has ruled adversely. We see no utility to set out at length here what would be repetitious of the opinions in United States v. Escandar, 319 F. Supp. 295 (S.D. Fla. 1970), United States v. Sklaroff, supra, United States v. Cantor, 328 F. Supp. 561 (E.D. Pa. 1971), United States v. Scott, 331 F. Supp. 233 (D.C.D.C. 1971), United States v. ...