United States v. Irving Kahn and Minnie Kahn , 471 F.2d 191 ( 1973 )

KILEY, Circuit Judge.

The government has appealed¹ from an order of a district judge suppressing as evidence conversations between Irving and Minnie Kahn, husband and wife, gathered from wiretaps authorized by a district judge’s order permitting interception of their telephone communications by virtue of the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968.² We affirm in part and reverse in part.

On March 20, 1970 the judge issued the wiretap order on application of the government, through a specially designated Assistant Attorney General, supported by an FBI agent’s affidavit.³ The order authorized interception of Irving Kahn’s conversations with “others as yet unknown” using the two Kahn home telephone numbers. Minnie Kahn was not named in the order. The government presumed the order authorized interception of her conversations as a member of the class of “others as yet unknown.” The judge accepted the FBI status report he required under authority of § 2518(6) of the Act⁴ and presumably approved the government’s interpretation of the order.

The order cautioned that execution of the order should be as “soon as practicable” and “in such a way as to minimize the interception of communications not otherwise subject to interception under Chapter 119 of Title 18, United States Code,⁵ and must terminate upon attainment of the authorized objective or, in any event, at the end of fifteen (15) days from the date of this order.” On March 25, 1970 the government reported interception had been terminated by attainment of the objective. The report⁶ stated the objective was attained by gathering information, inter alia, that on March 21, 1970 Irving Kahn called his wife from Arizona and discussed gambling wins and losses, and that the same day Minnie Kahn called a known gambling figure twice and discussed numbers and amounts of bets placed and the identity of the bettors by numbers.

On February 24, 1971 Irving and Minnie Kahn were indicted for using a telephone “facility in interstate commerce” with intent to promote gambling in violation of Illinois law. On April 27, 1971 the Kahns filed motions to suppress the wiretap evidence pursuant to 18 U.S.C. § 2518(10)(a).⁷ The joint motion asserted that the Kahns’ Fourth and Fifth Amendment rights were violated by the wire taps. It also challenged the sufficiency of the application for the order, the necessity for the order and the FBI use of telephone company records allegedly in violation of 47 U.S.C. § 605 and 18 U.S.C. § 2515, the duration of the order, and its excessive breadth. The Kahns also challenged the order for its lack of directions for minimizing interception, and alleged that it violated the marital privilege under the Ninth Amendment, the common law and 18 U. S.C. § 2517(4).⁸

The judge⁹ found that the Attorney General’s application for the intercepting order was adequately supported by the FBI agent’s affidavit and that the order was valid and enforceable under 18 U.S.C. § 2518(3-5).¹⁰ The judge further found that the statute authorizing the wiretap order was “undoubtedly” constitutional when limited to conversations participated in by “Irving Kahn with persons unknown at the time.” However, the judge, without hearing testimony, suppressed any conversations “exclusively” between Irving and Minnie Kahn as being within the marital privilege doctrine as applied through 18 U.S. C. § 2517(4). The judge also decided that the wiretap order did not authorize interception of Minnie Kahn’s conversations. The government’s appeal followed.

I.

The government contends that the judge erroneously applied the marital privilege rule because (1) Minnie Kahn was not testifying against her husband, and (2) the privilege in this proceeding must give way to the public interest in discovering the truth about crime, and in enforcement of criminal law.

We agree with the government. If the intercepted conversations had to do with the commission of a crime and not with the privacy of the Kahn marriage, the judge’s ruling is erroneous. Society has an interest in protecting the privacy of marriage because invasion of the privacy endangers the family relationship. The privilege has been interpreted in some jurisdictions to exclude conversations between spouses about business, since their role as spouses is merely incidental.¹¹ That rule reinforces the exception to the privilege; “[w]here both spouses are substantial participants in patently illegal activity, even the most expansive of the marriage privileges should not prevent testimony.” ¹²

This court recently, in United States v. Doughty, 460 F.2d 1360, 1364 (7th Cir. 1972), said:

The Doughtys were in the unlawful enterprise together, and we think it highly unlikely that the court’s admission of the testimony [of an agent] militated against their domestic peace or offended the public interest which the rule in Hawkins [358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125 (1958)] sought to protect.

That language reflects Exception (2)(e) of Uniform Eule of Evidence 28; see also United States v. Pugliese, 153 F.2d 497, 500 (2nd Cir. 1945).¹³ We realize that “the law of evidence has demonstrated a degree of solicitude toward the intimacy of marriage not manifested with regard to other protected relationships,”¹⁴ but the conversations before us between the Kahns were with respect to ongoing violations of Illinois gambling laws. We hold therefore that the judge erred in suppressing those conversations.

The cases cited by the Kahns do not aid them. The point here was not raised in Wolfle v. United States, 291 U.S. 7, 54 S.Ct 279, 78 L.Ed. 617 (1934), and there was no evidence in that case of dual participation in crime. In Blau v. United States, 340 U.S. 332, 71 S.Ct. 301, 95 L.Ed. 306 (1951), the husband refused to disclose the whereabouts of his wife, sought as a grand jury witness, who secretly entrusted her address to him. The privileged communication was not in furtherance of a crime. The decision in Ivey v. United States, 344 F.2d 770 (5th Cir. 1965), is also distinguishable, since the objectionable testimony of Mrs. Ivey did not deal with the furtherance of a crime, but was an admission of a past crime. In Peek v. United States, 321 F.2d 934 (9th Cir. 1963), the court found no abuse of discretion in the trial court’s denying a pre-trial motion for severance which urged the possibility that the government would use statements in violation of the marital privilege — the district court had deferred ruling to the actuality of the trial. In the case before us the judge used his discretion to rule before trial. No claim is made that the ruling was an abuse of discretion.

II.

In the motion to suppress the Kahns alleged that the affidavit supporting the eavesdrop order “nowhere states facts” showing probable use of the Kahn telephones for illegal purposes by “others as yet unknown;” that the government “knew, or should have known,” the occupants of the Kahn home and made no request for permission to intercept conversations other than those of Irving Kahn; and that the conversations of Minnie Kahn were “recklessly and illegally” intercepted. The government’s answer to the motion asserted that Minnie Kahn fell into the class of “others as yet unknown.” The judge suppressed the conversations.

The vital issue is whether Minnie Kahn can properly be included in the class of “others as yet unknown.” The judge, in granting the motion, had before him the government’s failure to deny that it knew Minnie Kahn was an occupant of the Kahn home and accordingly would use the home phones. We agree with the judge’s finding and we hold that the wiretap order did not authorize interception of Minnie Kahn’s conversations as she was neither identified in the order nor was she within the class of “others as yet unknown.”

Section 2518(1) (b) (iv) of the Act requires the government to identify, in an application, any person, “if known,” whose communications are to be intercepted. The implication is that if not known, such a person’s conversations may be intercepted if that person’s probable complicity in the offenses being committed is not yet known. The wiretap order was limited to conversations of “Irving Kahn and others as yet unknown.” Thus in order to satisfy the limitations of the judge’s order the wiretap had to meet two requirements: 1) that Irving Kahn be a party to the conversations, and 2) that his conversations intercepted be with “others as yet unknown.”

The issue before us rests upon the scope of the term “others as yet unknown.” A narrow construction of the term would limit the meaning of “others as yet unknown” literally to persons whom the government did not know. Under this construction Minnie Kahn would be excluded from the reach of the interception order, since she was admittedly known to the government as Irving’s wife. A second construction would confine the term “others as yet unknown” to those persons whom the government did not know were engaging in illegal conversations with Irving Kahn. The first construction of “unknown” refers to the identity of the person; the second construction refers to the illegal activities of the person. Under the second construction, even if the government knew a person it might still not “know” of that person’s probable illegal activities. If Minnie Kahn, although known to the government, was not known to be a likely user of the Kahn telephones for illegal activities, she would be “unknown” under the second construction.

No facts were stated in the application and affidavit in support of the authority to wiretap the conversations of “others as yet unknown.” The government argues that that is unimportant and that it is enough that the order permits interception of conversations concerning crime to be continued until the manner of Irving Kahn’s participation and that of his confederates in the crime be revealed and until the confederates are identified and the place of operation and the nature of the conspiracy are revealed. It contends that the order need not require Irving Kahn’s confederates be in conversations only with him and that all conversations about gambling on the subject phones may be intercepted.

Congress, in order to “safeguard the privacy of innocent persons,” found that interception should be disallowed where none of the parties had consented to the wiretap and where it is not authorized by a proper court order.¹⁵ It stated that the purpose of Title III was twofold : protection of personal privacy, and “delineating on a uniform basis” the circumstances and conditions under which wiretapping may be authorized.¹⁶ We think thát it is necessary therefore to limit the class of “others as yet unknown” as tightly, in the interest of personal privacy, as the competing need for reasonable public protection in law enforcement permits. In our opinion Congress did not intend that the implication in the term “if known” should be extended to embrace persons whom careful investigation by the government would disclose were probably using the Kahn telephones in conversations for illegal activities. We conclude that in the interest of protecting personal privacy a broader construction of the term “others as yet unknown” is required, i. e., if the government did not know but should have known by prudent investigation of the likelihood of Minnie Kahn’s use of the telephones for illicit activities, she was not a person “unknown.”

It is not in the public interest to relax concern of individual privacy to accommodate less than careful performance on the part of government agents. It is far more important, in our opinion, to protect Minnie Kahn’s personal privacy than it is to permit the government to avail itself of fruits of its less than careful intrusion upon her privacy in order to prosecute her for the offense.¹⁷

The application of the Assistant Attorney General merely sought authority to wiretap the conversations of “others as yet unknown” on the basis of the agent’s affidavit. The affidavit did no more than indicate that the wiretap of conversations of “others as yet unknown” would be useful. The agent’s affidavit contains long lists taken from telephone company records of interstate telephone calls using the Kahn phones to discuss gambling. The sources which led to these lists were gamblers who had worked with or engaged in gambling enterprises with Irving Kahn. It is highly improbable that all of these communications were with Irving Kahn. The sources which led to these lists would also seem likely sources from which questioning would elicit information identifying members of the Kahn household other than Irving Kahn who used the telephones in aid of the unlawful enterprise. And if the attempt to elicit that information was unsuccessful, we fail to see why the agent could not state the reason for lack of success, and the interception order find that “normal” investigative procedures have been tried and have failed.¹⁸ The conclusionary statement in the application and affidavit that “normal investigative methods reasonably appear to be unlikely to succeed and are too dangerous to be used” is too slender a reed upon which to rest the invasion of Minnie Kahn’s privacy. And the government was precluded from augmenting the application and affidavit at a suppression hearing. United States v. Roth, 391 F.2d 507, 509 (7th Cir. 1967).

We think the government’s wiretap impinged upon Minnie Kahn’s privacy and accordingly the government had the burden, at the suppression hearing, of justification. We find no justification in the record for not determining from the informants used for the government’s application and affidavit whether Minnie Kahn had received or sent, through the particular telephone numbers, communications with respect to unlawful gambling activities; and the government has not shown that had it conducted its investigation with the care Congress intended to protect personal privacy, it would not have discovered whether or not Minnie Kahn had implicated herself by her conversations. Where, as here, the government’s application and affidavit disclosed sources from which it could probably have learned the likelihood that Minnie Kahn was using the Kahn phones in illicit activity, but neither made the attempt, nor stated facts justifying not attempting, to gain that knowledge, the subsequent wiretaps amounted to a virtual general warrant in violation of her Fourth Amendment right.¹⁹ We conclude that the application and affidavit do not support an interpretation of the interception order to include Minnie Kahn in the class of “others as yet unknown” and that the district judge did not err in deciding that the order did not authorize the wiretapping of her telephone conversations.

It might be questioned whether conversations of Minnie Kahn could be lawfully seized had the government after proper investigation determined that no other persons in the household — other than Irving Kahn — had used the phones in committing crimes, and intercepted Irving Kahn’s conversations only to find Minnie Kahn discussing with him an illegal enterprise. The suppositious question presupposes no prior knowledge of 'any unlawful activity by Minnie Kahn and no basis on which to include her in the application and affidavit class of “others as yet unknown” who had in the past used or were presently using the phones for conversations regarding the offense. The question is not relevant to the question before us. However, we think the evidence seized in such an event might be used in the prosecution of Irving Kahn, but not against Minnie Kahn. There is a distinction between the event supposed in this question and the question arising where, for example, a valid tap on a named person concerning a particular offense uncovers evidence against another person of a different offense. United States v. Cox, 449 F.2d 679 (10th Cir. 1971).

The government relies upon language in Berger v. New York, 388 U.S. 41, 55, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). Berger is of no aid to the government in view of our conclusion that the government has not shown why it could not have identified Minnie Kahn in its application and affidavit. Neither does United States v. Cox, supra, aid the government. There the order specified narcotics violation, and conversations about bank robbery were monitored. The court found no constitutional error in the use of the conversations at the bank robbery trial.

Furthermore, the government analogizes the Kahn situation to the discussion in Alderman v. United States, 394 U.S. 165, 177 n. 10, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), where the Court approved seizure and use of narcotics in a proper warrant specifying gambling material. There the narcotics were contraband. In United States v. Sklaroff, 323 F. Supp. 296, 325 (S.D.Fla.1971), a district judge decided that “if a lawful court order . . . [as to a] named person [s] is issued, and . . . conversations [of] . . . other persons not named . . . are lawfully intercepted” (emphasis added), the seized conversations may be used. This decision was followed in United States v. Perillo, 333 F.Supp. 914, 919-921 (D.Del.1971). The word “lawful” in the language quoted begs the question before us.

The judgment is reversed in so far as it is based upon the marital privilege ground, and is affirmed in so far as it decided that the wiretap order did not authorize the interception of Minnie Kahn’s conversations.

1 . 18 U.S.C. § 3731, 18 U.S.C. § 2518(10) (b).

2 . 18 U.S.C. §§ 2516 and 2518.

On the basis of the same affidavit supporting the eavesdrop order, the district judge the same day authorized use of a Pen Register. No question is raised in the appeal with respect to the Pen Register.

3 . 18 U.S.C. §§ 2516 and 2518.

4 . (6) Whenever an order authorizing interception is entered pursuant to this chapter, the order may require reports to be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. Such reports shall be made at such intervals as the judge may require.

5 . 18 U.S.C. §§ 2510-2520.

6 . On March 10, 1971 an order was entered authorizing the FBI, in possession of tapes from the eavesdropping, to break the seal, make copies of recordings and supply the defendants’ counsel with a copy.

7 . (10) (a) Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to supjjress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that—

(i) the communication was unlawfully intercepted;

(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or

(iii) the interception was not made in conformity with the order of authorization or approval.

Such motion shall be made before the trial, hearing, or proceeding unless there was no opportunity to make such motion or the person was not aware of the grounds of the motion. If the motion is granted, the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter. The judge, upon the filing of such motion by the aggrieved person, may in his discretion make available to the aggrieved person or his counsel for inspection such portions of the intercepted communication or evidence derived therefrom as the judge determines to be in the interests of justice.

8 . (4) No otherwise privileged wire or oral communication intercepted in accordance with, or in violation of, the provisions of this chapter shall lose its privileged character.

9 . The criminal case was assigned to a district court judge other than the judge who authorized the wiretap.

10 . (3) Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire or oral communications within the territorial jurisdiction of the court in which the judge is sitting, 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.

(4) Each order authorizing or approving the interception of any wire or oral communication shall specify—

(a) the identity of the person, if known, whose communications are to be intercepted;

(b) the nature and location of the communications facilities as to which, or the place where, authority to intercept is granted;

(c) a particular description of the typo of communication sought to be intercepted, and a statement of the particular offense to which it relates;

(d) the identity of the agency authorized to intercept the communications, and of the person authorizing the application ; and

(e) the period of time during which such interception is authorized, including a statement as to whether or not the interception shall automatically terminate when the described communication has been first obtained.

(5) No order entered under this section may authorize or approve the interception of any wire or oral communication for any period longer than is necessary to achieve the objective of the authorization, nor in any event longer than thirty days. Extensions of an order may be granted, hut only upon application for an extension made in accordance with subsection (1) of this section and the court making the findings required by subsection (3) of this section. The period of extension shall be no longer than the authorizing judge deems necessary to achieve the purposes for which it was granted and in no event for longer than thirty days. Every order and extension thereof shall contain a provision that the authorization to intercept shall be executed as soon as practicable, shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter, and must terminate upon attainment of the authorized objective, or in any event in thirty days.

11 . Annot., 4 A.L.R.2d 835.

12 . Note, Future Crime or Tort Exception to Communications Privilege, 77 Harv.L.Rev. 730, 734 (1964).

13 . It is noteworthy also that the attorney-client privilege may not be invoked where commission of a crime is involved. See United States v. Hoffa, 349 F.2d 20, 37 (6th Cir. 1965), aff’d 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).

14 . 77 Harv.L.Rev. at 734.

15 . Omnibus Crime Control and Safe Streets Act of 1968, § 801(b), Title III, 82 Stat. 197; S.Rep.No.1097, 90th Cong., 2nd Sess., U.S.Code Cong. & Ad.News, 1968, pp. 2112, 2153.

16 . Omnibus Crime Control and Safe Streets Act of 1968, § 801(d), Title III, 82 Stat. 197.

17 . “What is truly central to the fourth anxendment, as Justice Bradley stated in his historic opinion in Boyd v. United States [116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886)] is ‘the sanctity of a man’s home and the privacies of life.’ ” Spitzer, Electronic Surveillance by Leave of the Magistrate: The Case in Opposition, 118 U. of Pa.L.Rev. 169, 180 (1969).

18 . 18 U.S.C. § 2518(3) (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; ”

19 . Spitzer, supra n. 17, at 191.