The opinion of the court was delivered by: WEINER
On September 20, 1972, this Court issued an Order, at the request of the Organized Crime and Racketeering Section of the United States Department of Justice, authorizing electronic surveillance by the United States Secret Service over telephone number 215-473-3484, subscribed to by Alfred "Sonny" Viner and located at 3901 Conshocken Ave, Apartment 82, Philadelphia, Pa. (Misc. No. 72-609). Based upon the intercepted conversations and other evidence, the defendants Viner and Ralph Staino were charged by the Grand Jury with violations of federal laws relating to conspiracy, possession, and dealing in Counterfeit Federal Reserve Notes, 18 U.S.C. §§ 472, 473, 371.
Presently before this Court is the defendants' motion to suppress the evidence which was obtained pursuant to our September 20 wiretap order.
Section 2518 of Title 18, United States Code, and, in particular, subparagraph (3) of that section, pursuant to which the disputed authorization was issued, reads as follows:
"(3) Upon such application the judge may enter an ex parte order . . . authorizing or approving interception of wire or oral communications . . . if the judge determines on the basis of the facts submitted by the applicant that --
(a) there is probable cause for belief that an individual is committing, has committed, or is about to commit a particular offense enumerated in section 2516 of this chapter;
(b) there is probable cause for belief that particular communications concerning that offense will be obtained through such interception;
(c) normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous;
(d) there is probable cause for belief that the facilities from which, or the place where, the wire or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of such offense, or are leased to, listed in the name of, or commonly used by such person."
It is the contention of the defendants that the requirements of subsection (b), (c), and (d) were not met by the affidavit of Secret Service Agent McDonnell in that it failed to cite reliable evidence to demonstrate the requisite probable cause to authorize the Order. The government insists that, under the applicable statutory and constitutional standards, the McDonnell affidavit meets each of the requirements in full.
In attempting to determine the propriety and constitutionality of the wiretap at issue, two distinct questions must initially be answered by this Court: whether the information contained in the affidavit is of such a character that a magistrate may credit it in determining whether probable cause has been established, and whether, once it has been determined that the information is creditable, it establishes probable cause.
In order to answer the first of these questions, reference may be helpfully made to the decisions of the Supreme Court in Spinelli v. United States, 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969) and Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964). In essence, these cases suggest that where the affidavit relies on information furnished by an informant for probable cause, it must demonstrate two things -- (1) that the informant himself is personally reliable and trustworthy, and (2) that the information furnished by him was gained in a reliable way.