صور الصفحة
النشر الإلكتروني

No. 84-1077


ranted. There is of course no guarantee that high level officials will not also abuse their power, but Title III was designed to make it easy to assign responsibility for abuses and to provide for rational and consistent policies in the use of these highly intrusive measures. All of these concerns apply with at least as much force to video as to audio surveillance and it makes the utmost sense to apply those constraints to video surveillance as well.

Of course, this is open to criticism as an aggressive exercise in statutory construction, and if either of the alternatives were more consistent with both statutes and their purposes and legislative histories, I would perhaps retreat from my interpretation. However, each alternative has technical and policy problems which are, in my view, considerably more severe than my bending of the Title III language. If my construction were to be chastised as "result oriented," I would assert that it seeks a result which is both sensible and consistent with both the statutes and the legislative histories read carefully and as a whole. Applying Title III to video surveillance avoids the majority's anomaly of subjecting the most dangerously intrusive form of electronic surveillance to much less control" than other forms. In addition, the majority's interpretation subjects video surveillance to much less control in the investigation of a local gambling parlor than in foreign intelligence investigations. My construction also avoids the improbable result of reading Title III and FISA as prohibiting one particular form of electronic surveillance when there are no indications anywhere that Congress meant to prohibit any surveillance technique in all situations. Instead, my approach subjects this highly intrusive form of surveillance to at least as much constraint as less intrusive forms are subject to, and it accords with the general congressional design of closely regulating-not prohibiting-these somewhat awesome forms of surveillance.

10 See n.3 supra.

UNITED STATES ▾. BOWLER Cite as 561 F.2d 1323 (1977)

We do not imply that there is an ipso facto exemption for those who transport undocumented aliens for employment or as an incident to employment. See United States v. Acosta de Evans, 531 F.2d 428 (9th Cir. 1976).

[4] We merely state that where the transportation of such an alien occurs, there must be a direct or substantial relationship between that transportation and its furtherance of the alien's presence in the United States. Even though the qualification in the transportation section ("in furtherance of such violation of law”) does not provide the automatic exclusion in the employment situation which the proviso in the harboring section does, it still requires, if it is to have any meaning at all, that a direct or substantial relationship exist.

[5] While the parameters of § 1324(a)(2) are not precise, we must be guided by the nature of the statue as well as the legislative intent for its enactment. As a penal statute, it must be strictly construed. McBoyle v. United States, 283 U.S. 25, 51 S.Ct. 340, 75 L.Ed. 816 (1930); United States v. Fruit Growers Co., 279 U.S. 363, 19 S.Ct. 374, 73 L.Ed. 739 (1928).

This court in Gonzalez-Hernandez, supra, eft open exactly what constitutes in fur

herance of the alien's violation of the law nder § 1324(a)(2). 534 F.2d at 1354. There, defendant's relationship to the actulillegal entrance seemed much more direct nd substantial as to time, place, distance nd overall impact than does the case beore us. Thus, the result in Gonzalez-Herandez is consistent with the test set forth y this court herein.

A broader interpretation of the transporation section would render the qualificaon placed there by Congress a nullity. To o this would potentially have tragic conseuences for many American citizens who me into daily contact with undocumented iens and who, with no evil or criminal tent, intermingle with them socially or herwise. It could only exacerbate the ight of these aliens and, without adding nything significant to solving the problem, eate, in effect judicially, a new crime and new class of criminals. All of our free


dom and dignity as people would be so reduced.



UNITED STATES of America, Plaintiff-Appellee,


Patrick Earl BOWLER, Defendant-Appellant.

No. 76-2713.

United States Court of Appeals, Ninth Circuit.

Sept. 30, 1977.

Defendant was convicted before the United States District Court for the District of Arizona, C. A. Muecke, J., of fraud by wire, and he appealed. The Court of Appeals, East, Senior District Judge, sitting by designation, held that: (1) telephone company's use of a snifter in investigation of illegal use of blue box did not violate Title III of the Omnibus Crime Control and Safe Streets Act of 1968, since a snifter only records each telephone emission of a 2,600 cycle tone, and is incapable of making an aural acquisition of communications; (2) where search warrant and supporting affidavit described physical appearance of defendant's residence and listed street address as 3835 West Diana Avenue, but true street address was 3335 West Diana Avenue, and correct street address was specified in statement of probable cause attached to and incorporated into affidavit, magistrate properly corrected typographical error in search warrant and affidavit when FBI agent brought such error to magistrate's attention, and (3) evidence sustained finding that defendant not only understood his Miranda rights but exercised them intelligently, freely and voluntarily, and that statements made by defendant after administration of Miranda warnings were not



[blocks in formation]

4. Criminal Law 414

Evidence in prosecution for fraud by wire sustained finding that defendant not only understood his Miranda rights, but exercised them intelligently, freely and voluntarily, and that statements made after administration of Miranda warnings were not tainted by statements improperly adduced before warnings were given.

Michael E. Benchoff, Phoenix, Ariz., argued for defendant-appellant.

Daniel R. Drake, Asst. U. S. Atty.. Phoenix, Ariz., argued for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona.

Before BARNES and KILKENNY, Sen ior Circuit Judges, and EAST, Senior Dtrict Judge.

EAST, Senior District Judge:

Patrick Bowler (Bowler) was indicted under six alleged counts of violating 18 USC § 1343, fraud by wire. The essence of the charges was that Bowler had used a "but box" to defraud the Mountain Bell Teiephone Company (Bell) of money due for interstate telephone calls placed by Bowler

After a hearing on Bowler's motion to suppress the use of certain evidence, the case was tried to the District Court without a jury which found him guilty on counts. Bowler was placed on four years probation as to each count with the requirement that he make restitution to Bell of $900.00.

On appeal, Bowler raises three issues regarding the admissibility of evidence. We affirm.

Bowler first came to the attention of Bell during an investigation of Donald Anderson, a fellow employee of Bowler's, for blue box toll fraud. An "Hekemian" attached

2. The District Court ordered that admissions made by Bowler prior to the administration of the Miranda warnings be suppressed; in all other respects the motion was denied.

3. An Hekemian is a device which records the number dialed, the date and the time a cal originates and terminates. Upon detection of a 2,600 cycle tone, it also prints the information in red and starts a tape recorder which runs tr less than two minutes. Thus, the Hekemian s designed to generate "paper tapes" which pre

UNITED STATES v. BOWLER Cite as 561 F.2d 1323 (1977)

o Anderson's telephone showed that he had nade several telephone calls to Bowler's umber. David Burkhart, a security officer or Bell, placed a "snifter" on Bowler's elephone solely because the Anderson tapes evealed the calls to Bowler's home. Bell maintained a common practice of checking ut "known associates" of blue box users. he snifter revealed that 2,600 cycle tones ere being emitted by Bowler's telephone hd accordingly an Hekemian was attached ereto. The evidence gathered by it indited illegal toll calls were being placed by owler. Burkhart then turned his informaon over to the Federal Bureau of Investition.

Based on the information supplied by rkhart, Agent Gwin of the F.B.I. obtaina warrant to search Bowler's home. Exution of the warrant led to the discovery a blue box and statements were taken m Bowler before and after he received randa warnings.

1] Bowler first complains that no evice was properly admitted against him ause it was all derived from the use of snifter which on the facts of this case stituted random monitoring in violation Title III of the Omnibus Crime Control Safe Streets Act of 1968, § 802, 18 .C. § 2511(2)(a)(i) (1970). However, this ument has no merit since the use of a ter is not within the scope of Title III. he snifter does no more than record telephone emission of a 2,600 cycle characteristic of the illegal use of a box. The use of such a devise is not de a basis for restitution by supplying evince that a toll call was made and indicating e parties involved.

he sole function of a snifter is to "peg a ister" each time it detects a 2,600 cycle e. It records neither the number called nor content of any communications made.

ourth Amendment standards are not inved in assessing the propriety of this action ause Burkhart did not act in concert, under direction or with the acquiescence of state federal officials.


restricted by § 2511(2)(a)(i) because "the right of privacy protected by the wire tap statutes goes to message content rather than the fact that a call was placed." United States v. Goldstein, 532 F.2d 1305, 1312 (9th Cir. 1976). This conclusion is further buttressed by a more recent decision of this Court. In Hodge v. Mountain States Tel. & Tel. Co., 555 F.2d 254 (9th Cir. 1977), this Court noted that Title III only prohibits disclosure and use of communications which are "intercepted" within the meaning of the Act and that the term "intercept" covers only "aural acquisitions" of communications. Id. at 257. The Court then held "that the use of [a] pen register [does] not constitute a violation of Title III [b]ecause a pen register is incapable of making an aural acquisition of any communication Id.

"A pen register records the numbers dialed from a particular telephone. It does not disclose the contents of any conversation nor does it indicate whether any calls were completed." Id. at 266, Hufstedler, J. concurring. In contrast, the snifter does not even record the number dialed and the appellant justly concedes that a snifter is "less intrusive than even a pen-register

.." Since the use of the more intrusive pen register is not governed by Title III, it follows that the use of the snifter is also outside the ambit of the Act.

Bowler's second argument is that the search warrant was defective in that an attempt to correct an error in the description of the premises to be searched was "legally insufficient" and that the uncor

If, however, Bell violated the Act in obtaining the contents of any of Bowler's communications, 18 U.S.C. § 2511(1)(c) would make disclosure thereof unlawful and the introduction into evidence of the contents or any evidence derived therefrom would be prohibited by 18 U.S.C. § 2515.

6. Once Bell had the information supplied by the snifter, its action in attaching the Hekemianwhich device is capable of making aural acquisitions of communications-clearly was not unlawful random monitoring as provided in 18 U.S.C. § 2511(2)(a)(i). Goldstein, 532 F.2d at 1313.



rected description failed to satisfy the particularity requirement of the Fourth Amendment. The search warrant and supporting affidavit described the physical appearance of Bowler's residence and listed the street address as 3835 West Diana Avenue, Phoenix, Arizona. However, the true street address was 3335 West Diana Avenue. Prior to the execution of the warrant, Agent Gwin noticed the error and brought it to the attention of the issuing magistrate who promptly corrected the affidavit and the warrant.


Bowler claims that the actions of Agent Gwin constituted "oral testimony" not sworn and made a part of the affidavit as required by Fed.R.Crim.P. 41(c) and United States v. Anderson, 453 F.2d 174 (9th Cir. 1971). The flaw in Bowler's argument is that the accurate information was properly before the magistrate at the time the correction was made. The correct street address was specified in a "Statement of Probable Cause" which was physically attached to and incorporated into the affidavit. Thus, the correct address had been properly sworn to before the magistrate. United States v. Buschman, 386 F.Supp. 822, 829 (E.D. Wis.1975), aff'd, 527 F.2d 1082 (7th Cir. 1976).

[2, 3] The District Court found the magistrate had merely corrected a "clerical error." It appears and we agree that the District Court rightly concluded that the correct address was specified in the "Statement of Probable Cause" and that a typographical error in the first part of the affidavit was carried over to the search warrant. Corrections of such errors are perfectly proper. United States v. Keach, 480 F.2d 1274, 1284-85 (10th Cir. 1973); United States v. Pittman, 439 F.2d 906, 909 (5th Cir.), cert. denied, 404 U.S. 842, 92 S.Ct. 138, 30 L.Ed.2d 77 (1971). Neither the Fourth Amendment nor Rule 41(c) nor Anderson

7. Since we hold that the description of the premises to be searched was properly corrected, we need not discuss Bowler's further con

nor common sense requires a person to be sworn or resworn before bringing a type graphical error to the attention of the issuing magistrate prior to the execution of the warrant where the correct information is already properly before him.?

[4] Bowler's final contention is that the statements he made after the administr

tion of the Miranda warnings were not properly admitted because they were tainted by statements improperly adduced be fore the warnings were given. The District Court found that Bowler not only understood his rights but exercised them intelligently, freely and voluntarily, answering some questions while refusing to answer others. This finding, which was based upon evidence brought out at the hearing on the motion to suppress, involved a determination of the credibility of conflicting testimony and consideration of Bowler's age, edu cation, mental condition and articulateness, as well as the particular setting in which the statements were given. We are not convinced that "the conditions that ren dered the pre-warning admissions inadmissible carried over to invalidate [his] subsequent confession." United States v. Toral, 536 F.2d 893, 896 (9th Cir. 1976).

The judgment of conviction and suspended sentence of Bowler entered by the Dis trict Court on July 19, 1976 is affirmed.



tention that the description, uncorrected, was inadequate.

« السابقةمتابعة »