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UNITED STATES v. FORTE

March 25, 1988

United States of America
v.
Michael Forte



The opinion of the court was delivered by: BECHTLE

 BECHTLE, J.

 Defendant Michael Forte ("Forte") is charged with violating 21 U.S.C. § 841(a)(1) by distributing over one hundred (100) gallons of phenyl-2-propanone ("P2P") and two (2) pounds of methamphetamine. Forte is also charged in this action with violating 21 U.S.C. § 846 by conspiring with twenty-seven (27) co-defendants and six (6) other co-conspirators to possess P2P with intent to distribute, to possess P2P with intent to manufacture methamphetamine, to distribute P2P, to possess methamphetamine with intent to distribute and to distribute methamphetamine, all in violation of 21 U.S.C. § 841. In sum, Forte is charged in this action with four (4) counts of violating 21 U.S.C. § 841(a)(1) and one count of violating 21 U.S.C. § 846 by conspiring to violate 21 U.S.C. § 841.

 (a) (215) 922-9244, a coin-operated public telephone at the Cafe Lido located at 736-38 South 8th Street (referred to by the government as "the Lido phone");

 (b) (215) 922-8380, a coin-operated public telephone at the Cafe Lido located at 736-38 South 8th Street (referred to by the government as "the second Lido phone"); and

 (c) (214) 629-9625, a coin-operated public telephone at the Scioli-Turco Veterans of Foreign Wars ("VFW") Post, Post No. 593, located at 753 South 8th Street (referred to by the government as "the VFW Post phone").

 Wire interceptions commenced that same date. The Order was extended through the end of September 1985. Forte now moves to suppress evidence obtained from the electronic surveillance. For the reasons stated herein that motion will be denied.

 Before I address the merits of Forte's motion, I will delineate the scope of the court's review. This criminal action has been assigned through our random assignment of cases procedure to the Honorable Thomas N. O'Neill, Jr.; nevertheless I, as the authorizing and supervising judge of the electronic surveillance feature of the case, review the challenges to the validity or sufficiency of my Orders authorizing or approving electronic surveillance pursuant to Local Rule of Criminal Procedure 16(b). The following issues are raised by Forte's motion: (1) whether there was probable cause for the Order; (2) whether the Order was facially valid; (3) whether the interceptions were made in conformity with the Order; (4) whether the government followed appropriate minimization procedures; and (5) whether the interceptions violated the Fourth Amendment to the United States Constitution and the laws of the United States.

 In his supporting memorandum, Forte addresses only issues No. 1 (probable cause) and No. 4 (minimization). Since Forte does no more than list issue Nos. 2, 3, and 5, the court cannot address Forte's undisclosed thoughts on those issues nor is his position self-evident from the record and, accordingly, the court must deny his motion to the extent that it relies on those unargued issues. What follows is a discussion and resolution of issues No. 1 (probable cause) and No. 4 (minimization).

 I. Probable Cause For Wiretap Order

 Forte argues that the government failed to establish probable cause in the affidavit accompanying its application for the wiretap authorization order. In order to obtain a wiretap authorization order, the government must show probable cause that the subject is engaged in specified illegal activity, that communications regarding such activity would be obtainable through monitoring, and that the premises where the interception is to take place is being used in connection with the illegal activity. United States v. Armocida, 515 F.2d 29, 36 (3d Cir. 1975). The fourth amendment principles regarding property searches are applicable to electronic surveillance authorizations. United States v. Tehfe, 722 F.2d 1114 (3d Cir. 1983), cert. denied, 466 U.S. 904, 104 S. Ct. 1679, 80 L. Ed. 2d 154 (1984). Under established fourth amendment principles, probable cause is determined by the totality of the circumstances and only requires a probability, not a prima facie showing, of criminal activity. Illinois v. Gates, 462 U.S. 213, 235, 76 L. Ed. 2d 527, 103 S. Ct. 2317 (1983). On review, the initial probable cause determination is entitled to deference and should be upheld so long as there is a substantial basis supporting the initial finding of probable cause. Gates, supra.

 The July 31, 1985 affidavit of F.B.I. Special Agent Albert F. Bodnar and D.E.A. Special Agent Martin W. Pracht (hereinafter "Affidavit of July 31, 1985") set forth information from five different reliable sources to show probable cause to believe that Forte was involved in the distribution of controlled substances. Confidential Source-one ("CS-1"), who had been a reliable source for eight months reported that Forte was conducting his drug business at the Cafe Lido and Scioli-Turco VFW Post. CS-1 obtained this information through his/her personal observations at those locations and through conversation.

 CS-3 reported to the government agents on his/her sales of P2P to Forte between April 1983 and November 1984. CS-3 had furnished reliable information for ten months, had testified before a grand jury, and had provided information which had resulted ...


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