United States v. Ojeda Rios/Concurrence O'Connor

by Sandra Day O'Connor

Justice O'CONNOR, with whom Justice BLACKMUN joins, concurring.

I join the Court's opinion on the understanding that a "satisfactory explanation" within the meaning of 18 U.S.C. § 2518(8)(a) cannot merely be a reasonable excuse for the delay; it must also reflect the actual reason for the delay. Thus, as the Court today holds, an appellate court's review of the sufficiency of the Government's explanation for a delay should be based on the findings made and evidence presented in the district court, rather than on a post hoc explanation given for the first time on appeal. See ante, at 267. With this understanding, I agree with the Court that this case should be remanded for a determination whether the Government's explanation to the District Court for the delay-not the explanation offered on appeal-meets the "satisfactory explanation" standard.

Justice STEVENS, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.

The failure to comply with the sealing requirements of Title III was the unfortunate consequence of a Government lawyer's good-faith, but incorrect, understanding of the law. Whether such a mistake should constitute a "satisfactory explanation" for the failure, is, as both the District Court and the Court of Appeals recognized, a close question. Both of those courts resolved their doubts in favor of requiring strict compliance with a statute that was carefully drawn to protect extremely sensitive privacy interests. I think their resolution of the issue was correct. ^[1]

The ordinary citizen is often charged with presumptive knowledge of laws even when they are complex and confusing. A similar presumption should apply to a federal prosecutor responsible for insuring that a prolonged and extensive program of electronic surveillance is conducted in compliance with the law. Moreover, when issues turn on the details of such an investigation in this case involving 1,011 tapes made pursuant to 8 separate orders and 17 extensions-I believe we should give special deference to the consistent evaluations of the record by the District Court and the Court of Appeals. Chief Judge Oakes succinctly stated the concern that is decisive for me: "We think that unfortunately the failure to seal the Levittown tapes here resulted from a disregard of the sensitive nature of the activities undertaken. The danger here is, of course, that today's dereliction becomes tomorrow's conscious avoidance of the requirements of law. The privacy and other interests affected by the electronic surveillance statutes are sufficiently important, we believe, to hold the Government to a reasonably high standard of at least acquaintance with the requirements of law." 875 F.2d 17, 23 (CA2 1989). ^[2]

Accordingly, while I agree with the Court's rejection of the Government's construction of § 2518(8)(a), I would affirm the judgment of the Court of Appeals. ^[3]

Notes

1. The Court acknowledges that the prosecutor's understanding of the law was incorrect. Ante, at 266. However, the Court posits that, at the time of this investigation, it was "objectively reasonable" to interpret 18 U.S.C. § 2518(8)(a) to treat wiretap orders issued after an order covering the same suspects or locations expired as extensions of the earlier order. The legal sufficiency of this excuse, which relies on United States v. Principie, 531 F.2d 1132 (CA2 1976), cert. denied, 430 U.S. 905, 97 S.Ct. 1173, 51 L.Ed.2d 581 (1977), and United States v. Scafidi, 564 F.2d 633 (CA2 1977), cert. denied, 436 U.S. 903, 98 S.Ct. 2231, 56 L.Ed.2d 400 (1978), is debatable for three reasons.
2. Cf. United States v. Giordano, 416 U.S. 505, 527, 94 S.Ct. 1820, 1832, 40 L.Ed.2d 341 (1974) ("Congress intended to require suppression where there is failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device").
3. If a "satisfactory explanation" did exist, I would agree that a remand to determine that it was in fact "the actual reason for the delay" would be required. Ante, at 267 (O'CONNOR, J., concurring).