MR. JUSTICE REHNQUIST delivered the opinion of the Court.
In 1968, Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which deals with wiretapping and other forms of electronic surveillance. 18 U. S. C. §§ 2510-2520 (1976 ed.). In this Act Congress, after this Court's decisions in Berger v. New York, 388 U.S. 41 (1967), and Katz v. United States, 389 U.S. 347 (1967), set out to provide law enforcement officials with some of the tools thought necessary to combat crime without unnecessarily infringing upon the right of individual privacy. See generally S. Rep. No. 1097, 90th Cong., 2d Sess. (1968). We have had occasion in the past, the most recent being just last Term, to consider exactly how the statute effectuates this balance.
Pursuant to judicial authorization which required such minimization, Government agents intercepted all the phone conversations over a particular phone for a period of one
In January 1970, Government officials applied, pursuant to Title III, for authorization to wiretap a telephone registered to Geneva Jenkins.
Before trial the defendants, including petitioners Scott and Thurmon, moved to suppress all the intercepted conversations on a variety of grounds. After comprehensive discovery and an extensive series of hearings, the District Court held that the agents had failed to comply with the minimization requirement contained in the wiretap order and ordered suppression of the intercepted conversations and all derivative evidence. The court relied in large part on the fact that virtually all the conversations were intercepted while only 40% of them were shown to be narcotics related. This, the court reasoned, "strongly indicate[d] the indiscriminate use of wire surveillance that was proscribed by Katz
The Court of Appeals for the District of Columbia Circuit reversed and remanded, stating that the District Court should not have based its determination upon a general comparison of the number of narcotics-related calls with the total number of calls intercepted, but rather should have engaged in a particularized assessment of the reasonableness of the agents' attempts to minimize in light of the purpose of the wiretap and the information available to the agents at the time of
Upon remand, the District Court again ordered suppression, this time relying largely on the fact that the agents were aware of the minimization requirement, "but made no attempt to comply therewith." App. 37, 38.
The Court of Appeals again reversed, holding that the District Court had yet to apply the correct standard. 170 U. S. App. D. C. 158, 516 F.2d 751 (1975). The court recognized that the "presence or absence of a good faith attempt to minimize on the part of the agents is undoubtedly one factor to be considered in assessing whether the minimization requirement has been satisfied," but went on to hold that "the decision on the suppression motion must ultimately be based on the reasonableness of the actual interceptions and not on whether the agents subjectively intended to minimize their interceptions." Id., at 163, 516 F. 2d, at 756. Then, because of the extended period of time which had elapsed since the commission of the offense in question, that court itself examined the intercepted conversations and held that suppression was not appropriate in this case because the court could not conclude that "some conversation was intercepted which clearly would not have been intercepted had reasonable attempts at minimization been made." Id., at 164, 516 F. 2d, at 757.
On the remand from the Court of Appeals, following a nonjury trial on stipulated evidence which consisted primarily of petitioners' intercepted conversations, Scott was found guilty of selling and purchasing narcotics not in the original stamped package, see 26 U. S. C. § 4704 (a) (1964 ed.), and Thurmon of conspiracy to sell narcotics, see 26 U. S. C. §§ 7237 (b) and 4705 (a) (1964 ed.).
Petitioners' principal contention is that the failure to make good-faith efforts to comply with the minimization requirement is itself a violation of § 2518 (5). They urge that it is only after an assessment is made of the agents' good-faith efforts, and presumably a determination that the agents did make such efforts, that one turns to the question of whether those efforts were reasonable under the circumstances. See Reply Brief for Petitioner 4-5. Thus, argue petitioners, Agent Cooper's testimony, which is basically a concession that the Government made no efforts which resulted in the noninterception of any call, is dispositive of the matter. The so-called "call analysis," which was introduced by the Government to suggest the reasonableness of intercepting most of the calls, cannot lead to a contrary conclusion because, having been prepared after the fact by a Government attorney and using terminology and categories which were not indicative of the agents' thinking at the time of the interceptions, it does not reflect the perceptions and mental state of the agents who actually conducted the wiretap.
The Government responds that petitioners' argument fails to properly distinguish between what is necessary to establish a statutory or constitutional violation and what is necessary to support a suppression remedy once a violation has been established.
See also Beck v. Ohio, 379 U.S. 89, 96-97 (1964); Henry v. United States, 361 U.S. 98, 102-103 (1959).
Petitioners do not appear, however, to rest their argument entirely on Fourth Amendment principles. Rather, they argue in effect that regardless of the search-and-seizure analysis conducted under the Fourth Amendment, the statute regulating wiretaps requires the agents to make good-faith efforts at
This argument fails for more than one reason. In the first place, in the very section in which it directs minimization Congress, by its use of the word "conducted," made it clear that the focus was to be on the agents' actions not their motives. Any lingering doubt is dispelled by the legislative history which, as we have recognized before in another context, declares that § 2515 was not intended "generally to press the scope of the suppression role beyond present search and seizure law." S. Rep. No. 1097, 90th Cong., 2d Sess., 96 (1968). See Alderman v. United States, 394 U.S. 165, 175-176 (1969).
We turn now to the Court of Appeals' analysis of the reasonableness of the agents' conduct in intercepting all of the calls in this particular wiretap. Because of the necessarily ad hoc nature of any determination of reasonableness, there can be no inflexible rule of law which will decide every case.
We agree with the Court of Appeals that blind reliance on the percentage of nonpertinent calls intercepted is not a sure guide to the correct answer. Such percentages may provide assistance, but there are surely cases, such as the one at bar, where the percentage of nonpertinent calls is relatively high and yet their interception was still reasonable. The reasons for this may be many. Many of the nonpertinent calls may have been very short. Others may have been one-time only calls. Still other calls may have been ambiguous in nature or apparently involved guarded or coded language. In all these circumstances agents can hardly be expected to know that the calls are not pertinent prior to their termination.
In determining whether the agents properly minimized, it is also important to consider the circumstances of the wiretap. For example, when the investigation is focusing on what is thought to be a widespread conspiracy more extensive surveillance may be justified in an attempt to determine the precise scope of the enterprise. And it is possible that many more of the conversations will be permissibly interceptable because they will involve one or more of the co-conspirators. The type of use to which the telephone is normally put may also have some bearing on the extent of minimization required. For example, if the agents are permitted to tap a public telephone because one individual is thought to be placing bets over the phone, substantial doubts as to minimization may arise if the agents listen to every call which goes out over that phone regardless of who places the call. On the other hand, if the phone is located in the residence of a person who is thought to be the head of a major drug ring, a contrary conclusion may be indicated.
After consideration of the minimization claim in this case in the light of these observations, we find nothing to persuade us that the Court of Appeals was wrong in its rejection of that claim.
We are thus left with the seven calls between Jenkins and her mother. The first four calls were intercepted over a three-day period at the very beginning of the surveillance. They were of relatively short length and at least two of them indicated that the mother may have known of the conspiracy. The next two calls, which occurred about a week later, both contained statements from the mother to the effect that she had something to tell Jenkins regarding the "business" but did not want to do so over the phone. The final call was substantially longer and likewise contained a statement which could have been interpreted as having some bearing on the conspiracy, i. e., that one "Reds," a suspect in the conspiracy,
MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, dissenting.
In 1968, Congress departed from the longstanding national policy forbidding surreptitious interception of wire communications,
The "minimization provision" of § 2518 (5) provides, inter alia, that every order authorizing interception of wire communications include a requirement that the interception "shall be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter . . . ." (Emphasis added.) The District Court's findings of fact, not challenged here or in the Court of Appeals, plainly establish that this requirement was shamelessly violated. The District Court found:
The District Court further found that the special agent who conducted the wiretap testified under oath that "he and the agents working under him knew of the minimization requirement but made no attempt to comply therewith." Id., at 37. The District Court found a "knowing and purposeful failure" to comply with the minimization requirements. Id., at 39. These findings, made on remand after re-examination, reiterated the District Court's initial finding that "[the agents] did not even attempt `lip service compliance' with the provision of the order and statutory mandate but rather completely disregarded it." 331 F.Supp. 233, 247 (DC 1971). In the face of this clear finding that the agents monitored every call and, moreover, knowingly failed to conduct the wiretap "in such a way as to minimize the interception of communications" not subject to interception, and despite the fact that 60% of all calls intercepted were not subject to interception,
First, and perhaps most significant, it totally disregards the explicit congressional command that the wiretap be conducted so as to minimize interception of communications not subject to interception. Second, it blinks reality by accepting, as a substitute for the good-faith exercise of judgment as to which calls should not be intercepted by the agent most familiar with the investigation, the post hoc conjectures of the Government as to how the agent would have acted had he exercised his judgment. Because it is difficult to know with any degree of certainty whether a given communication is subject to interception prior to its interception, there necessarily must be a margin of error permitted. But we do not enforce the basic premise of the Act that intrusions of privacy must be kept to the minimum by excusing the failure of the agent to make the good-faith effort to minimize which Congress mandated. In the nature of things it is impossible to know how many fewer interceptions would have occurred had a good-faith judgment been exercised, and it is therefore totally unacceptable to permit the failure to exercise the congressionally imposed duty to be excused by the difficulty in predicting what might have occurred had the duty been exercised. Finally, the Court's holding permits Government agents deliberately to flout the duty imposed upon them by Congress. In a linguistic tour
The Court's attempted obfuscation in Part II, ante, at 135-139, of its total disregard of the statutory mandate
Moreover, today's decision does not take even a sidelong glance at United States v. Kahn, 415 U.S. 143 (1974), whose reasoning it undercuts, and which may now require overruling. Answering the question in Kahn of who must be named in an application and order authorizing electronic surveillance, the Court held:
To support that holding against the argument that it would, in effect, approve a general warrant proscribed by Title III and the Fourth Amendment, see id., at 158-163 (Douglas, J., dissenting), the Court relied on the minimization requirement as an adequate safeguard to prevent such unlimited invasions of personal privacy:
Beyond the inconsistency of today's decision with the reasoning of Kahn, the Court manifests a disconcerting willingness to unravel individual threads of statutory protection without
"BY THE COURT:
"Q. The question I wish to ask you is this, whether at any time during the course of the wiretap—of the intercept, what if any steps were taken by you or any agent under you to minimize the listening?
"A. Well, as I believe I mentioned before, I would have to say that the only effective steps taken by us to curtail the reception of conversations was in that instance where the line was connected to—misconnected from the correct line and connected to an improper line. We discontinued at that time.
"Q. Do I understand from you then that the only time that you considered minimization was when you found that you had been connected with a wrong number?
"A. That is correct, Your Honor." App. 179.
Given our disposition of this case we find it unnecessary to reach the Government's contention regarding the scope of the suppression remedy in the event of a violation of the minimization requirement. We also decline to address the Government's argument with respect to standing. The Government concedes that petitioner Thurmon was a party to some nonnarcotics-related calls and thus has standing to make the arguments advanced herein. Thus, even if we were to decide that Scott has no standing we would be compelled to undertake the decision of these issues. If, on the other hand, we were to decide that Scott does have standing, we would simply repeat exactly the same analysis made with respect to Thurmon's claim and find against Scott as well. In this circumstance we need not decide the questions of Scott's standing. See California Bankers Assn. v. Shultz, 416 U.S. 21, 44-45 (1974); Doe v. Bolton, 410 U.S. 179, 189 (1973).