on the other hand, is never performed by clerks or copyists, but only by judges. Hence a failure to sign an order is not a clerical error.
Having determined that the May, 1970 tap was illegal, the remaining issue is whether the February, 1971 tap was derived from it. This issue turns on the degree to which the May tap was the source of the information contained in the affidavit upon which the judge who authorized the February tap relied in finding probable cause. The affidavit mentions the May, 1970 tap only as corroborative of the major portion of the affidavit, the information supplied by three informants. "The inclusion of illegally obtained evidence does not vitiate a search warrant which is otherwise validly issued upon probable cause reflected in the affidavit and based on proper sources."
Defendants question the propriety of the other sources here; i.e., they assert that F.B.I. agents who listened to the contents of the tap may have been inspired thereby to direct the informants to contact Defendants and other persons named in the affidavit for the February, 1971 tap. In support of their assertion, Defendants note that two of the five persons named in the affidavit were overheard discussing gambling on the wires which were tapped in May, 1970. Defendants are charged with illegal gambling in this case. Defendants also point out that the affiant does not indicate that any of the information he relates was known to the F.B.I. prior to May, 1970, or that any of the actions of the informants took place prior to May, 1970. Most of the material is dated December, 1970 or January, 1971, an unsurprising state of affairs since the probable cause for a warrant must be fresh. The remaining matters are undated and frequently of unspecified duration.
While conceding that the affidavit does not preclude the interpretation urged by Defendants, the government rests its case on the fact that the affidavit does not reveal any actual connection between the May, 1970 tap and the information supplied by the informants. At a hearing on Defendants' motion to suppress, the parties chose not to introduce any evidence to attempt to resolve the ambiguity of the affidavit. Thus the determination of whether there was impermissible taint turns on who has the burden of proof in this situation.
Where there has been an illegal search, the government has the ultimate burden of persuasion to show that its evidence has been obtained by means sufficiently distinguishable from the illegality as to be purged of the primary taint.
However, the Defendants have a burden of production: they must first come forward "with specific evidence demonstrating taint,"
and such taint must extend to a "substantial portion" of the evidence.
In my view, Defendants have failed to sustain this burden. The affidavit does not preclude speculation that the bulk of the affidavit, the information from the informants, is tainted, but it also does not contain specific evidence of such taint. Defendants contend that in order to attempt to meet their burden, they must be advised of the identity of the informants. They rely on Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957). There the court stated that while an informant's identity is generally privileged information, "[where] the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way."
Although this language is broad enough to encompass Defendant's position, a later case indicates that Roviaro is to be limited to its facts; i.e., to the situation where the informant has played a direct and prominent part in the offense charged.
In the case at bar, the informants played only a minor part in the alleged offense. In my view, the public's interest in protecting the free flow of information from informants outweighs the interest of the Defendants in this particular case in trying to trace the contamination from the May, 1970 tap to the informants.
Hence Defendants are not entitled to be informed of the informants' identities.
This result would obtain even if there had been no way for Defendants to have met their initial burden of showing specific evidence of substantial taint without knowledge of the informants' identities. Here, however, Defendants failed to avail themselves of an opportunity to try to sustain their burden. The F.B.I. agent who was the affiant for both the May, 1970 tap and the February, 1971 tap, and who was in charge of the investigations of which each tap was a part, was present at the suppression hearing. Defendants could have questioned him and attempted to discover, for example, when the F.B.I. began their surveillance, which F.B.I. agents listened to the contents of the May, 1970 tap, and whether, to his knowledge, any of the informants were directed towards Defendants' activities as a result of that tap.
Since Defendants have failed to sustain their burden of showing specific evidence of substantial taint, an order denying their motion to suppress will be entered.