concurring:
The dissenting opinion of my respected brother, J. Joseph Smith, and the split in *643the circuits, see United States v. Ford, 553 F.2d 146 (D.C. Cir. 1977), and compare United States v. Agrusa, 541 F.2d 690 (8th Cir. 1976), impels me to add some of my own reasons for concurring in the majority opinion. Congress has constructed a statutory scheme for meeting the problems raised in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), and Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), by enacting Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. The issue is narrow. When a federal agent obtains access by trespass to premises in which he has been ordered to install a device to intercept oral communications by a court order which faithfully follows Title III and which includes a finding of probable cause, has he nevertheless intercepted conversations in a lawless manner as if he had no court order at all? Was there in fact “a neutral predetermination of the scope of [the] search”? Katz v. United States, 389 U.S. at 358, 88 S.Ct. at 515. Or are entries to plant “bugs” themselves unconstitutional invasions of privacy distinct from the actual eavesdrop sanctioned in the order? An affirmative answer was “[essential to [the] holding” in United States v. Ford, supra, 553 F.2d at 170, on constitutional grounds. I respectfully disagree.
Title III covers oral interceptions (“bugging”) without prescribing any duties for the judicial branch on the method to be used in installing the “bug”. These statutory requirements were carefully tailored to meet the constitutional requirements set out in Berger and Katz. See United States v. Tortorello, 480 F.2d 764, 771-75 (2d Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 63, 38 L.Ed.2d 86 (1973). Congress knew that whether a “bug” was put in place by trespass or otherwise, the use of a “bug” to intercept conversations would require a warrant except when the “bug” is carried by a participant in a face-to-face conversation, On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1070 (1952), or is used with the consent of a party. See Katz, supra. The warrant under Title III is limited to interception of oral conversations, 18 U.S.C. § 2518, and does not in any way permit the search and seizure of goods or papers on the premises. Indeed, if such goods or papers were subjected to search under the interception order, suppression would follow. There is an analogy to the opening of foreign mail by the Customs, which is not constitutionally offensive provided the letters themselves are not read. See United States v. Ramsey, 431 U.S. 606, 97 S.Ct. 1972, 52 L.Ed.2d 617 (1977).
What the statute requires is not a specification by the judge of the method for placing the “bug” but simply “a particular description of the place where the communication is to be intercepted”. Congress knew that an order such as is under review, that “electronic surveillance of the oral communications of the above-named subjects shall occur at the above described premises” (emphasis added), would require covert installation. If supporting proof were needed, it is supplied by the 1970 Amendment, Pub.L. No. 91-358, Title II, § 211(b), 84 Stat. 654 (amending 18 U.S.C. § 2518(4)), under which the order authorizing interception of an oral communication may direct a landlord or custodian, among others, to furnish the applicant with all facilities and technical assistance necessary to “accomplish the interception unobtrusively" (emphasis added). This provision is not for the protection of the subject of the interception order since it is to be incorporated only “upon request of the applicant”. In sum, if the enforcement agent thinks that he can achieve such cooperation on his own, he need not get a court order to execute his mission “unobtrusively” with the cooperation of the landlord or custodian.
With its attention having been called to the need for doing the job “unobtrusively” to the point of enlisting the aid of persons whose aid would amount to trespass, Congress failed to include in Title III a provision such as is found in the New York Criminal Procedure Law § 700.30(8) which requires that an eavesdropping warrant contain “[a]n express authorization to make secret entry upon a private place or premises to install an eavesdropping device if such *644entry is necessary to execute the warrant”, —a provision added to the otherwise almost verbatim copying of 18 U.S.C. § 2518(4). The judge to whom an application is made may, of course, require more than the statute prescribes before he is willing to sign the order, but the requirement that he separately sanction each surreptitious entry is nowhere to be found in the statutory scheme. That can hardly be due to congressional oversight. It is implicit that ordinarily only a single entry need be made, save in the exigent circumstance of equipment malfunction, as was the case here. Because the statute does not require the judge to authorize the manner of entry, a contention that the judge is nevertheless required to do so must rest on a reading of the Fourth Amendment itself.
The Fourth Amendment in part reads: “. . . no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized”.
The orders here do conform precisely to the requirements of the Fourth Amendment as well as those of § 2518. They particularly describe the premises to be “searched.” They state that there is probable cause' to believe that particular oral conversations of named persons and others concerning the specified offenses will be obtained through the interception at the named premises which, there is probable cause to believe, are being used for commission of the named offenses. “Prompt” execution of the authorization is ordered, and the interception is limited not only in time but to occasions when at least one of the named subjects is present.
Since the right of the named persons to privacy has already been subjected to the “probable cause” test at the hands of an independent judicial officer and since the order is detailed enough to defeat any realistic claim that it is a “general warrant,” I believe that the basic requirements of the Fourth Amendment have been met. I respectfully suggest that cases which have held trespass to be invalid in the absence of any warrant whatever are hardly dispositive. But cf. the discussion in United States v. Ford, supra. In Berger there was a surreptitious entry but the Supreme Court failed to note it as a separate constitutional problem. See 388 U.S. at 45, 53-64, 81-82, 96-97, 107-12, 87 S.Ct. at 433. We do have here “the procedure of antecedent justification . . . that is central to the Fourth Amendment.” See Osborn v. United States, 385 U.S. 323, 330, 87 S.Ct. 429, 433, 17 L.Ed.2d 394 (1966).
Judge Smith notes that there may be a danger in surreptitious entry. That may be conceded, but the federal judge is hardly in as good a position to evaluate such risks as is the law enforcement agent. Common sense will suggest that, in the absence of a plausible ruse, the “bug” should be put in place when the premises are vacant. A mistake as to whether they are occupied, in fact, could hardly be corrected by a judicial order.
Now that attention has been called to this question in several circuits, it is hoped that Congress will provide the national consensus needed to reconcile the needs of law enforcement with the rights of privacy that belong to all persons until probable cause has been shown and the approval of an independent judge obtained. The finding of what the judge must do in these circumstances to keep the “search” reasonable is, I think, within the prerogatives of Congress. In the meantime, until the Supreme Court speaks, it might be advisable for district judges to make a general direction for forcible or surreptitious entry a part of the interception order, not so much on constitutional grounds, see United States v. Agrusa, 541 F.2d 690, 696-98 (8th Cir. 1976),1 as for the protection of the agents.
. The Eighth Circuit said: “[W]hile there are two aspects to the search and seizure which occurred here [interception of oral communications after forcible entry] as compared with one in Osborn and Katz, this difference is, for constitutional purposes, one of degree rather than kind.” 541 F.2d at 698. In Agrusa, though the order permitted “forcible entry at any time of day or night”, it was challenged unsuccessfully on Fourth Amendment grounds.