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UNITED STATES v. IANNELLI
April 13, 1977
UNITED STATES of America
Joseph IANNELLI, a/k/a "Joe" a/k/a "45", et al.
The opinion of the court was delivered by: WEBER
The Defendants have presented a joint motion to suppress evidence obtained through the interception of wire communications and pen register surveillance. Three arguments are raised:
The failure of the government to comply with the courts' orders requiring the submission of progress reports; and
The improper and unlawful installation of pen registers.
The Defendants argue that the application for a court order to intercept the telephone messages would not satisfy the requirement of showing that normal investigative procedures had failed or were insufficient. 18 U.S.C. 2518(1)(c) requires that the application for authorization for interception of wire or oral communications include:
"(c) 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;" (emphasis added).
2518(1)(c) is written in the disjunctive. A literal reading would suggest that the application show that either normal investigative procedures have been tried and have failed, or, if reasonably likely to fail, a statement to that effect. However, this interpretation would result in the hard cases, such as gambling investigations, that mere boiler plate language could be used to satisfy the requirement. However, the Supreme Court has directed otherwise:
"Congress legislated in considerable detail in providing for applications and orders authorizing wiretapping and evinced the clear intent to make doubly sure that the statutory authority be used with restraint and only where the circumstances warrant the surreptitious interception of wire and oral communications. These procedures were not to be routinely employed as the initial step in criminal investigation. Rather, the applicant must state and the court must find that normal investigative procedures have been tried and failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous." (emphasis added) United States v. Giordano, 416 U.S. 505, 515, 94 S. Ct. 1820, 1826, 40 L. Ed. 2d 341 .
Thus, while warning that wiretaps are not to be used as a matter of course, or as the first step in a criminal investigation, they still may be used upon a proper showing that normal investigative procedure is unlikely to succeed. While the typical gambling investigation may require telephonic interceptions, a mere conclusory statement without more would not satisfy the requirement of 2518(1)(c). But, given an account of what investigation was employed, how far it extended and an indication of the impasse reached, admittedly without resort to every conceivable investigative tool, an affidavit would appear to satisfy the requirement of 2518(1)(c) that normal investigative procedures "reasonably appear to be unlikely to succeed if tried."
In United States v. Armocida, 515 F.2d 29 [3d Cir. 1975], the court stated that the government's showing of compliance with the statute should be tested in a practical and common sense fashion. In United States v. Vento, 533 F.2d 838 [3d Cir. 1976] involving the use of electronic surveillance of a conspiracy to distribute dangerous drugs, the court noted at the outset that there was "little reason to believe that the government could have obtained convictions here if the recorded conversations had not been introduced." (p. 846). Defendants in Vento, as in the present case, argued that the government had failed to exhaust investigative procedures prior to the application for the wiretap order. The defendant argued that the government should have shown the use or attempted use of procedures including subpoena testimony of informants, offers of immunity to informants, the more extensive use of physical surveillance, and the use of undercover agents. The court held that there was no requirement that every investigative methodology be exhausted prior to a Section 2518 authorization.
The argument in Vento relied exclusively on the first clause of 2518(1)(c) and ignored the disjunctive language of that provision.
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