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The provisions in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.S. §§ 2510-2520 that implement the constitutional standards for video surveillance are (1) the judge issuing the warrant must find that normal investigative procedures have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous; (2) the warrant must contain a particular description of the type of communication sought to be intercepted, and a statement of the particular offense to which it relates; (3) the warrant must not allow the period of interception to be longer than is necessary to achieve the objective of the authorization, or in any event longer than 30 days (though extensions are possible); and (4) the warrant must require that the interception be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under Title III. 18 U.S.C.S. § 2518(3)(c), (4)(c), (5).
In early 1986, federal law enforcement agents suspected that Cuevas's home was being used as a drop house for drug traffickers. On March 13, the United States Attorney for the Western District of Texas applied to the district court for an order authorizing video surveillance of the exterior of Cuevas's property. The application included a letter from the Director, Office of Enforcement Operations of the Department of Justice Criminal Division, authorizing the application and an extensive affidavit from a narcotics detective describing the premises and the reasons behind the police's suspicions. The affidavit provided information gathered from confidential informants as well as from police surveillance of the property. The affidavit also contained a false statement that the appellant had been arrested while in possession of 47 grams of cocaine. Finally, it explained that conventional law enforcement techniques, although attempted, had failed to uncover enough evidence to convict the drug traffickers. The order issued that same day, limiting surveillance to 30 days and directing the police to minimize observation of innocent conduct and to discontinue the surveillance when none of the suspected participants were on the premises. On March 19, Agents installed the video camera atop a power pole overlooking the appellant's 10-foot-high fence bordering the back of the yard. This camera allowed officers to observe the removal of drugs from vehicles' false gas tanks in Cuevas's yard; observations that led to the arrest of another participant in the drug ring. On April 30, the United States Attorney asked for an extension of the video surveillance order based on an additional affidavit that included information obtained from the first 30 days of surveillance. A district judge granted the extension on May 5. On May 15, the video surveillance revealed the appellant loading his car with garbage bags believed by the monitors to contain drugs. After he drove off, police stopped Cuevas and made a warrantless search of his car, finding 22 pounds of marijuana. They then obtained a warrant to search his property and found 58 more pounds. In the district court, Cuevas moved to suppress the evidence used to convict him on the ground that it was derived from the unlawful video surveillance of his property. The district court denied this motion and, after Cuevas waived a jury trial, found him guilty of possession of marijuana with intent to distribute.
Did the government's application for the surveillance order conform to statutory or constitutional standards?
The application of the standards laid down in jurisprudence as well as the Constitution undercuts Cuevas's primary contention. He complains that the letter of authorization did not come from the Attorney General or Assistant Attorney General as required in Title III. The Fourth Amendment does not require such a letter of authorization. Cuevas also attacks the extension of the order only after the expiration of the 30-day period. There is no evidence that the government continued surveillance in the hiatus between the end of the 30-day period and the beginning of the extension period. Cuevas cannot complain of surveillance that followed the district court's order. The evidence shows that the government followed all the requirements set out in Biasucci. Cuevas also contends that the false statement contained in the affidavit supporting the warrant application tainted the application and rendered the subsequent warrant invalid. Franks v. Delaware held that if, setting aside an affidavit's false material, the remaining information is insufficient to establish probable cause, the warrant is void. The affidavit in this case, removing the one statement that Cuevas had been arrested while in possession of cocaine, is still sufficient to establish probable cause. Cuevas's claim cannot survive.