The only serious question remaining, therefore, is whether the affidavit demonstrated, in addition to the illegal activity itself, sufficient reason to believe that the Viner telephone was being and would be used in connection with the offense under investigation so as to justify the authorization of a wiretap.
We have no doubt but that subsection (d), which requires a showing of probable cause that the premises from which the interception will be made are being or will be used in connection with the offense or are leased by, listed to or commonly used by the person who is committing the offense, is met by the statements made in the affidavit. Telephone company records showed that the telephone which was the subject of the application was listed to "Sonny" Viner. Personal calls made on two occasions by the informant in the company of a special agent, and once by the informant alone, demonstrated that the defendant Viner was engaging in the business of passing counterfeit bills through the use of the telephone number in question.
The only remaining probable cause test, then, is whether the application showed probable cause to believe that conversations concerning the illegal enterprise would be discovered by the use of monitoring. Concededly, any attempt to prophesy the future conduct of criminal activities is a difficult task and any attempt to do so must necessarily be premised upon the past experiences of the affiant. Here, the defendant was contacted at the telephone number in question on both occasions when a "buy" was made. It was reasonable, as a result, for the government to presume, and for this Court to agree with their conclusion, that future purchases of counterfeit bills would probably be arranged through this same telephone number. And such reasoning does not, as the defendant seems to suggest, raise a spectre of the future wholesale monitoring of the nation's telephones. The issuance of a surveillance order in this case was closely tied to clearly demonstrated events out of which illegal transactions resulted and was simultaneously surrounded by the various other protections afforded by federal legislation.
Certainty is clearly not a prerequisite to our authorization of a wiretap, as is clear from the terms of the statute. Criminal activity, by its very nature, does not follow any universally preordained pattern of operation. And each particular illegal activity must be judged on its own individual terms. Unlike the lottery and gambling situation which was the subject of United States v. Lanza, 341 F. Supp. 405 (D.C. 1972), where the Court was able to rely upon a continual and regular pattern of telephone use which is the hallmark of such operations, id. at 418-419, the crimes which the defendants are charged with are necessarily engaged in on a far more sporadic basis and the resultant evidence which would be available to support a finding of probable cause must, consequently, be of a similar nature.
It is, therefore, our conclusion that the requirements of both subsections (b) and (d) of section 2518 were met in the affidavit and that the only remaining question is whether or not the wiretap was necessary to the successful investigation of the defendant's activities as required by 18 U.S.C. § 2518(3)(c).
The defendants contend that, even if probable cause was established to believe that they were using the phones to engage in illegal activity, the order authorizing the wiretap should not have been issued because the ineffectiveness of using other investigative procedures was not established by the affidavit as is required by 18 U.S.C. § 2518(3)(c).
It is clear that the statute does not require the government to use a wiretap only as a last resort. Indeed, the provision does not even require the government to employ any other investigative procedure before requesting the issuance of an order authorizing the interception of wiretap communications. The burden on the government is, therefore, not a great one, and it has been adequately fulfilled in this instance.
The defendants argue that according to statements in the affidavit, sufficient evidence existed prior to the wiretap to convict both Viner and Staino if that evidence was shown to be true. But, although it is likely that probable cause existed for these arrests, it cannot be supposed that there was the faintest reason to think that the trail ended there. By its very nature, the illegal possession of and dealing in counterfeit notes involves, in most instances, many individuals who would be liable as co-conspirators. And even though the investigative agents were able to uncover the first layer of the operation, a substantial likelihood existed that other persons were involved in the same enterprise. Plainly, normal investigative procedures had ceased to be effective once the visible members of the hierarchy, if one existed, were discovered. To suppose that the investigation should have been terminated at this point is unrealistic. These men were merely the tip of the iceberg; they could always be replaced. In order to root out the offense, those who were ultimately responsible -- individuals who were the source of the counterfeit notes and who placed them into circulation -- had to be found, and the affidavit amply demonstrates that this would have been impossible by any means other than by the use of wiretaps.
As it is our opinion that the government's primary justification, as related above, for the use of a wiretap in this instance was sufficient to meet the demands of section 2518(3)(c), there is no reason for us to discuss further the other issues raised by the defendants on this same point.
The defendants' motion to suppress is denied.
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