The opinion of the court was delivered by: FOGEL
Before us is a Motion to Dismiss Indictment Because of Illegal Electronic Surveillance. Defendant Frank Parker Osborne was indicted under a one count indictment for possession with intent to distribute heroin, a Schedule I narcotic drug controlled substance, in violation of 21 U.S.C. § 841(a)(1).
Defendant requested a hearing under 18 U.S.C. § 3504, for the purpose of determining whether or not his arrest was the result of any illegal wiretapping activities. Defendant alleged the following in support of his Motion: FIRST, that the Complaint prepared by the Drug Enforcement Administration was based on information received from the Bristol Township Police Department; SECOND, that on October 1, 1976, three detectives of that department were indicted by a Federal Grand Jury in the Eastern District of Pennsylvania for using illegal electronic surveillance in connection with their investigations; THIRD, that David W. Marston, the United States Attorney for the Eastern District of Pennsylvania stated at a press conference on October 1, 1976, that several criminal cases had been tainted by those activities; FOURTH, that defendant, a life-long resident of the area where the alleged wiretapping occurred, had a poor relationship with the police; and FIFTH, that he had heard clicking noises and had experienced interference with his telephone.
On November 1, 1976 we held a limited hearing. At that hearing the defendant testified concerning the difficulties he experienced with his telephone, but admitted that he had never requested the telephone company to conduct an inspection for the purposes of determining whether his telephone was tapped. (Transcript of November 1, 1976 suppression hearing (TR), 24-26, 32). He testified that he was an activist in the community and had been instrumental in removing a local justice of the peace from office; he puts this fact before us in order to establish a motive for the alleged surveillance (TR. 27-28). He denied that he or any members of his family had any conversations about drugs on the telephone. (TR 29-30).
We also heard from Detective Hildeshine, who stated that he had received his information directly from the informant and not through the medium of electronic surveillance; although he did not have the source of the informant's knowledge, he speculated that the informant picked up the information "on the street." (TR 55-57). He stated that he never discussed with the informant where he had gotten any of his information. (TR 56-61).
Because Detective Hildeshine could not testify from his own knowledge with respect to the original source of his information, we granted defendant's request that the informant be questioned by us in camera. He testified under oath that his information was not obtained through the use of any electronic surveillance on his part; that rather, it was obtained from his private contacts on the street. The informant denied that he obtained any information about the defendant from personnel in the police department or from any other source which could be suspect with respect to the use of any electronic surveillance.
We also requested and received an in camera affidavit from the Assistant U.S. Attorney in charge of the investigation of the Bristol Township Police force, stating that an examination of his files revealed no illegal electronic surveillance pertaining to this case.
After considering the testimony adduced at the hearing, the in camera examination of the informant, and the affidavits submitted by the Government, we refuse to dismiss the indictment. We find that the denial of the Government of illegal wiretapping, in light of the record which has been adduced, is sufficient to obviate the necessity of any further hearing on this matter; we further find that defendant is not entitled to the suppression of the evidence against him based upon his claim of illegal surveillance activities.
I. Dismissal of Indictment
It is well settled that an indictment returned by a legally constituted grand jury is not subject to challenge, even if based in whole or in part on incompetent evidence. If the indictment is valid on its face the cause may proceed to trial. Lawn v. United States, 355 U.S. 339, 2 L. Ed. 2d 321, 78 S. Ct. 311 (1958). See also United States v. Blue, 384 U.S. 251, 86 S. Ct. 1416, 16 L. Ed. 2d 510 (1966); Costello v. United States, 350 U.S. 359, 100 L. Ed. 397, 76 S. Ct. 406 (1956).
Thus, even if defendant were successful in proving that his arrest was the result of illegal wiretapping activities, the indictment would stand. His sole recourse is to seek suppression of any evidence tainted by the ...