given to him by the confidential informants.
In itself, the information supplied by informants #1, #2 and #3 does not form any basis for establishing probable cause. Though there is a showing concerning each one as to his reliability as an informer, none of the information supplied by these informers stemmed from personal observation. Each simply related to Agent Fritz what he had heard from some unidentified individual. As to these real sources of information who talked to informants #1, #2 and #3, there is an insufficient showing of reliability. See Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). No weight can be given to the information supplied by these informants toward establishing probable cause because it is hearsay on hearsay. See United States v. Roth, 391 F.2d 507 (C.A. 7, 1967).
However, the information supplied by confidential informant #4 stands on a different footing, and along with corroborating facts developed in Agent Fritz's personal investigation, establishes probable cause. Informant #4's reliability is established by the affidavit's allegation that within the past seven months before the application was submitted, he had been providing information relative to gambling. He had done so on approximately ten occasions, with it invariably being found accurate when checked by further investigation. Not present here are the bare conclusory allegations of reliability condemned in Aguilar, supra, and Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969), as underlying circumstances for finding the informant reliable were disclosed to the issuing judge.
Informant #4 concluded that Matthew F. Whitaker was engaged in bookmaking on sporting events on an intrastate and interstate basis, identifying two particular phone numbers which he used for receiving and placing wagers. The apartment in which he used these phones was also named. Furthermore, informant #4 stated that in using these telephone numbers, in order to avoid detection of the interstate nature of his wagering activity, Matthew Whitaker would charge all of his interstate gambling calls to a Pennsylvania Bell Telephone Company credit card which was in another person's name. Besides the detail of the information, what makes it particularly reliable is the manner in which it was gathered. Confidential informant #4 stated that all his information was learned by him during conversations which he had directly with the subject of the wiretap application, Matthew F. Whitaker. In addition, a check of the toll records for the credit card mentioned by informant #4 disclosed a large volume of interstate telephone calls to various locations throughout the country, including certain named known gamblers. It is clear that the detailed information in this affidavit gained by a reliable informant from the suspect's own mouth comports with the requirements of the Fourth Amendment. See United States v. Harris, 403 U.S. 573, 91 S. Ct. 2075, 29 L. Ed. 2d 723 (1971).
OTHER INVESTIGATIVE PROCEDURES
Movants contend that even if probable cause was established to believe that Matthew F. Whitaker was using telephones for an interstate bookmaking operation, the order authorizing the wiretap should not have been issued because the ineffectiveness of using other investigative procedures was not established by the affidavit.
Defendants rely on 18 U.S.C. § 2518(1)(c) which provides that each application shall include "a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous." It is immediately apparent that this provision does not even require that any other investigative procedure be tried first before an order is issued for the interception of wire communications. It is not required that a wiretap be used as a last resort, but only that the success of other methods of investigation appear unlikely. The burden on the government under this provision is not a great one, and it has been fulfilled here. The affidavit of Agent Fritz relates that all four of his informants have categorically refused to testify, and that there is not a single known witness who could be relied on to testify truthfully. Defendants contend that these known witnesses should have been subpoenaed to see whether they might tell the truth when forced to testify. It is apparent that this could very well have ended the usefulness of certain individuals as confidential informants, without an assurance of the dividends of truthful testimony. Moreover, the affidavit states that though a search warrant might result in the seizure of gambling records, these records would not show the source of the wagers, and thus would fail to disclose the interstate nature of the gambling operation.
"Merely because a normal investigative technique is theoretically possible, it does not follow that it is likely. (Citations omitted.) What the provision envisions is that the showing be tested in a practical and common sense fashion." S. Rep. No. 1097, 90th Cong., 2d Sess., 1968, U.S. Code Cong. & Admin. News, pp. 2112, 2190.
The government has made a sufficient showing to meet the requirements of 18 U.S.C. § 2518(1)(c).
CONSTITUTIONALITY OF TITLE III
Having rejected defendants' other grounds for suppression, we must now confront their argument that Title III is unconstitutional on its face. It is contended that the statute violates the First, Fourth and Fifth Amendments of the United States Constitution. Since we have concluded that Title III violates the Fourth Amendment, a discussion of the other points raised becomes unnecessary.
Title III is a rather detailed statute. It conveys the surface impression that effective controls required by the Fourth Amendment have been placed on the government in its pursuit of evidence through the use of electronic listening devices. On closer scrutiny, however, we are convinced that the protections afforded the citizen against unreasonable governmental intrusions are largely illusory. If a judge exercised certain discretionary powers which the Act gives him, the order may not violate the Fourth Amendment. The difficulty, though, is precisely that those powers are discretionary and not mandated. It follows that the Act does not command a constitutional order; it permits an unconstitutional one.
Title III permits the government to conduct lengthy continuous searches with great discretion in the hands of the executing officers, thus violating the Fourth Amendment's prohibition against general searches.
Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967); see Stanford v. Texas, 379 U.S. 476, 85 S. Ct. 506, 13 L. Ed. 2d 431 (1965); Marcus v. Property Search Warrant, 367 U.S. 717, 81 S. Ct. 1708, 6 L. Ed. 2d 1127 (1961); Marron v. United States, 275 U.S. 192, 48 S. Ct. 74, 72 L. Ed. 231 (1927); Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886).
While Congress expressed an intention to shape Title III around the constitutional standards set forth in Berger v. New York, 388 U.S. 41, 87 S. Ct. 1873, 18 L. Ed. 2d 1040 (1967), and Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), we find nothing in these decisions or previous decisions of the Court which provides constitutional support for the electronic surveillance contemplated by Title III.
The privacy of every citizen is in jeopardy if we become a nation which sanctions the indiscriminate use of secret electronic searches by the government.
A. Duration of the Search and Its Continuous Nature
In Berger, supra, the Court held that a New York eavesdropping statute was void on its face because it violated the Fourth Amendment, despite the fact that the New York law, like the statute now before us, required that electronic searches be conducted pursuant to a judicially approved warrant.
The Court found the statute to be constitutionally lacking in several respects.
One constitutional defect with which the Court was particularly concerned was the unprecedented duration of the search permitted by the New York law. On a single authorization, eavesdropping could take place continuously for two months, with further extensions possible on a showing that it would be "in the public interest." In condemning the lengthy surveillance permitted under the New York statute, the Court held up as a model of electronic surveillance properly limited in scope and duration the judicially authorized eavesdrop which took place in Osborn v. United States, 385 U.S. 323, 87 S. Ct. 429, 17 L. Ed. 2d 394 (1966). In that case, a man informed the Department of Justice that an attorney had initiated a discussion with him concerning the possibility of his approaching a juror in a pending criminal case. He executed a written statement under oath, and the Department of Justice then obtained court approval
to wire the man for sound in his next meeting with the lawyer. Because the recorder did not operate properly at the initial meeting following judicial approval, another authorization was given to use the recorder at the next meeting. One conversation was recorded and introduced as evidence. "* * * [The] order authorized one limited intrusion rather than a series or a continuous surveillance." Berger, supra, 388 U.S. at 57, 87 S. Ct. at 1883.
"Authorization of eavesdropping for a two-month period is the equivalent of a series of intrusions, searches, and seizures pursuant to a single showing of probable cause. Prompt execution is also avoided. During such a long and continuous (24 hours a day) period the conversations of any and all persons coming into the area covered by the device will be seized indiscriminately and without regard with their connection to the crime under investigation." Berger, 388 U.S. at 59, 87 S. Ct. at 1883.
Title III is an improvement over the New York statute in Berger as the time period for continuous electronic surveillance has been shortened. Under Title III, one showing of probable cause can sustain a 24-hour-a-day search for only 30 straight days. 18 U.S.C. § 2518(5). Unlike the Berger statute, there must be a new showing of probable cause for each extension, which may also last 30 days. 18 U.S.C. § 2518(5). Title III provides no limit on the number of extensions, thus making possible continuous searches for months on end if a fresh showing of probable cause can be made once a month.
"When it is necessary to conduct surveillance for a period of time longer than that specified, the provision provides for extensions. No arbitrary limit is placed on the number of extensions which can be obtained." S. Rep. No. 1097, 90th Cong., 2d Sess., 1968 U.S. Code Cong. & Admin. News, pp. 2112, 2192.