United States v. Donovan, 429 U.S. 413 (1977)
United States v. Donovan
No. 75-212
Argued October 13, 1976
Decided January 18, 1977
429 U.S. 413
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Syllabus
Title 18 U.S.C. § 2518(1)(b)(iv), which is part of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, requires the Government to include in its wiretap applications "the identity of the person, if known, committing the offense and whose communications are to be intercepted." Section 2518(8)(d) requires the judge to whom a wiretap application is made to cause to be served on the persons named in the wiretap order or application an inventory, which must give notice of entry of the order or application, state the disposition of the application, and indicate whether communications were intercepted, and further provides that the judge may order similar notice to other parties to intercepted communications if he concludes that such action is in the interest of justice. Evidence derived from wiretaps must be suppressed under § 2518(10)(a)(i) if "the communication was unlawfully intercepted." On December 26, 1972, the Government applied for an extension of an order authorizing a wiretap interception of gambling-related conversations of certain named individuals other than respondents Donovan, Robbins, and Buzzacco and "others as yet unknown" to or from four listed telephones, and the Government did not identify these respondents in the application even though it had previously learned they were discussing illegal gambling activities with the named subjects. The District Court authorized a 15-day interception. On February 21, 1973, the Government submitted to the court a proposed order giving notice of the interception to 37 persons, the court signed the order, and an inventory notice was served on the listed persons, including respondents Donovan, Robbins, and Buzzacco. Subsequently, after the Government submitted the names of two additional persons whose identities allegedly had been omitted inadvertently from the initial list, the court entered an amended order giving notice to those individuals, but as a result of "administrative oversight" respondents Merlo and Lauer were not included in either list of names and were never served with an inventory notice. Respondents, along with others, were indicted for federal gambling offenses. On respondents’ motion, the District Court suppressed as to respondents Donovan, Robbins, and Buzzacco all evidence derived from the December 26 intercept order on the ground that failure to name them in the application and order of that date violated § 2518(1)(b)(iv), inter alia, and suppressed as to respondents Merlo and Lauer all evidence derived from both intercept orders on the ground that these two respondents had not been served with an inventory notice as required by § 2518(8)(d). The Court of Appeals affirmed.
Held:
1. Section 2518(1)(b)(iv) is not satisfied when the wiretap application identifies only the "principal target" (usually the individual whose phone is monitored) of the interception, but the Government is required to name all individuals who it has probable cause to believe are engaged in the criminal activity under investigation and whose conversations it expects will be intercepted over the target telephone. Neither the language and structure of Title III nor its legislative history supports the interpretation that Congress intended to remove from the identification requirement those suspects whose intercepted communications originated on a telephone other than that listed in the wiretap application. Pp. 423-428.
2. Under § 2518(8)(d), the Government has a statutory responsibility to inform the issuing judge of the identities of persons whose conversations were overheard in the course of the interception, thus enabling him to decide whether they should be served with notice of the interception. Here the Government did not comply adequately with § 2518(8)(d), since the names of respondents Merlo and Lauer were not included on the purportedly complete list of identifiable persons submitted to the issuing judge. Pp. 428-432.
3. Although the Government was required under § 2518(1)(b)(iv) to identify respondents Donovan, Robbins, and Buzzacco in the December 26 application, failure to do so under these circumstances did not warrant suppression under § 2518(10)(a)(i), since the identification in an intercept application of all those likely to be overheard in incriminating conversations does not play a "substantive role" with respect to judicial authorization of intercept orders and hence does not impose a limitation on the use of intercept procedures. Pp. 435-437.
(a) Here the statutorily imposed preconditions to judicial authorization (a determination that normal investigative techniques have failed or are unlikely to succeed, and probable cause to believe that (i) an individual is engaged in criminal activity, (ii) particular communications concerning the offense will be obtained through interception, and (iii) the target facilities are being used in connection with the specified criminal activity) were satisfied, and the issuing judge was simply unaware that additional persons might be overheard engaging in incriminating conversations, the intercept being lawful because the application provided sufficient information to enable the judge to determine that the statutory preconditions were satisfied. Pp. 435-436.
(b) There is nothing in the legislative history to suggest that Congress intended § 2518(1)(b)(iv)’s broad identification requirement to play "a central, or even functional, role in guarding against unwarranted use of wiretapping or electronic surveillance," United States v. Chavez, 416 U.S. 562, 578. P. 437.
4. Nor was suppression justified under § 2518(10)(a)(i) with respect to respondents Merlo and Lauer simply because the Government inadvertently omitted their names from the comprehensive list of all identifiable persons whose conversations had been overheard. Pp. 438-439.
(a) There is nothing in the structure or legislative history of the Act to suggest that incriminating conversations are "unlawfully intercepted" whenever parties to those conversations do not receive discretionary inventory notice under § 2518(8)(d) as a result of the Government’s failure to inform the court of their identities. P. 438.
(b) Here, at the time inventory notice was served on the other identifiable persons, the intercept had been completed and the conversations had been "seized" under a valid intercept order, and the fact that discretionary notice reached 39, rather than 41, identifiable persons does not, in itself, mean that the conversations were unlawfully intercepted. Pp. 438-439.
513 F.2d 337, reversed and remanded.
POWELL, J., delivered the opinion of the Court, in which STEWART, WHITE, BLACKMUN, and REHNQUIST, JJ., joined, in all but Part II-A of which BURGER, C.J., joined, and in Parts I and II of which STEVENS, J., joined. BURGER, C.J., filed an opinion concurring in part and concurring in the judgment, post, p. 440. MARSHALL, J., filed an opinion dissenting in part, in which BRENNAN, J., joined, post, p. 445. STEVENS, J., filed a statement concurring in part and dissenting in part, post, p. 451.