(dissenting):
I respectfully dissent. I would reverse for retrial as to all defendants, with all evidence obtained by electronic surveillance after warrantless surreptitious entries suppressed. The course followed by the agents here makes a mockery of the promise that the “dirty business” of electronic eavesdropping authorized by the Act of 1968, 18 U.S.C. §§ 2510-2520 (1970), would be strictly supervised and controlled. Title III of the 1968 Crime Control Act was drafted with the Berger and Katz decisions as a guide, including the Katz requirement to “conduct the search within precise limits established by a specific court order . . .” 1968 U.S.Code Cong. & Admin.News, pp. 2162, 2163. It is not too much to ask that a magistrate pass upon the necessity for and the manner of surreptitious entries into private premises, either business or residential, in light of the obvious dangers of injury and death to occupants and officers in the course of such gross invasions of privacy. The dangers may vary greatly between such methods as the planting of a bug by a restaurant patron, and a forcible breaking and entry when the premises are assumed to be unoccupied. The Congress recognized the existence of such devices as the martini olive transmitter, the spike mike, the infinity transmitter and the microphone disguised as a wristwatch, picture frame, cuff link, tie clip, fountain pen, stapler or cigarette pack. 1968 U.S.Code Cong. & Admin. News, p. 2183. Electronic devices in some instances might be installed in a manner not requiring entry by the officers into the premises. See United States v. Ford, 180 U.S.App.D.C. 1, 6 n. 20, 553 F.2d 146, 151 n. 20 (1977); cf. the “spike mike” of Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961). Because of its dangers, “bugging” as distinguished from wiretapping, is relatively little used. See United States v. Ford, supra, 553 F.2d at 149, n. 12. The choice of methods should be made known to and passed on by the magistrate.
The lack of warrants for the entries is not the only defect in the procedures used here. The delays in sealing and lack of timely progress reports to the judges, as well as the unauthorized reentries indicate a wide disregard for the intent of the Congress that the use of this dangerous tool be strictly supervised. We have been willing to excuse an occasional slip-up on timing as my brothers have pointed out. The perhaps inevitable result has been a progressive weakening of the safeguards. I would agree with the District of Columbia Circuit in Ford and draw the line here.