Holmes v. Burr

• Decision Date: 17 December 1973
• Docket Number: No. 71-2724.,71-2724.
• Citation: 486 F.2d 55
• Parties: W. Thomas HOLMES, Appellant, v. Waldon V. BURR, Sheriff of Pima County, Arizona, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

486 F.2d 55 (1973)

W. Thomas HOLMES, Appellant, v. Waldon V. BURR, Sheriff of Pima County, Arizona, Appellee.

No. 71-2724.

United States Court of Appeals, Ninth Circuit.

October 1, 1973.

Certiorari Denied December 17, 1973.

Raul H. Castro (argued), Tucson, Ariz., for appellant.

John S. O'Dowd, Asst. Atty. Gen. (argued), Gary K. Nelson, Atty. Gen., Tucson, Ariz., for appellee.

Before BARNES and HUFSTEDLER, Circuit Judges, and LUCAS,^* District Judge.

Certiorari Denied December 17, 1973. See 94 S.Ct. 850.

OPINION

BARNES, Circuit Judge:

W. Thomas Holmes, appellant, is a former Arizona attorney convicted of grand theft of money under false pretenses in an Arizona state court. The state court found that Holmes fraudulently obtained $1,000 from a client, Sanford Marburger, a Tucson liquor store proprietor. Marburger claimed that the $1,000 was given to Holmes for payment of a fine imposed for an alleged liquor license violation of which Holmes had informed him. Subsequent to Holmes' receipt of the money, Marburger discovered that no fine had been levied, and no fee had been paid on his behalf.

In cooperation with the Arizona State Liquor Department, Marburger engaged petitioner in a telephone conversation from the Liquor Department office on August 23, 1968. The parties discussed the alleged license violation and fine. With Marburger's consent, but without a warrant, the conversation was overheard and recorded by the state officials. The tape recording was admitted into evidence at Holmes' trial over timely objection.

Holmes unsuccessfully appealed his conviction alleging in part that the recording violated his right to privacy under the Fourth and Fourteenth Amendments, State v. Holmes, 13 Ariz. App. 357, 476 P.2d 878 (Ct.App.1970). Further state remedies were exhausted, and a petition for Writ of Habeas Corpus was filed in the United States District Court for the District of Arizona pursuant to Chapter 153 of Title 28, United States Code. Upon a hearing, the petition was denied. The case is here on appeal of that decision. Our jurisdiction rests in 28 U.S.C. §§ 1291 and 2253.

Holmes alleges several errors. We find only one question to have merit: whether the eavesdropping and recording of the Marburger-Holmes conversation violated Holmes' right to privacy pursuant to the Fourth and Fourteenth Amendments; or more specifically, his right to be secure in his person from unreasonable searches and seizures. For this reason, and for purposes of judicial economy, we limit our discussion to this issue.

Prior to the Supreme Court's ruling in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), government interception of oral communications was permissible where one party to the conversation gave prior consent. On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952); Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957); Lopez v. United States, 373 U.S. 427, 83 S. Ct. 1381, 10 L.Ed.2d 462 (1963). And see generally, Annot., § III.B 97 A.L.R. 2d 1283, 1302; Annot., § 5, 9 A.L.R.3d 423, 434. It is now argued by Holmes, and it is the position of the dissent, that Katz makes consensual eavesdropping by the Government unconstitutional. We hold that the principles enunciated in On Lee, Rathbun, and Lopez, are not unconstitutional, and therefore remain binding on the federal courts. United States v. Puchi, 441 F.2d 697 (9th Cir. 1971), cert. denied 404 U.S. 853, 92 S.Ct. 92, 30 L.Ed.2d 92 (1971).

Each of these cases is in certain respects factually similar to the matter before us. On Lee v. United States, supra, involved a face to face conversation between an indicted, but unconvicted, criminal defendant, and an old friend and accomplice, turned government informant. The informant elicited incriminating statements from On Lee to which the government informant was permitted to testify at On Lee's trial. Holmes argues, and the dissent concludes, that On Lee has been so eroded by recent Supreme Court decisions, particularly Katz v. United States, supra that it is no longer a controlling precedent. While we do not find that On Lee is not controlling, we do note that it has been severely criticized. See the concurring opinion of Warren, C. J., in Lopez v. United States, supra, 373 U. S. at 441-446, 83 S.Ct. 1381. The thrust of the criticism, however, has been directed to the prosecution's failure in On Lee to call the informant-accomplice to testify. Unlike the posture of the informant in On Lee, Marburger testified himself; and the conversation, which was recorded here, was only used to corroborate Marburger's testimony—it was not primary evidence.

The consenting party to the intercepted conversation in Rathbun v. United States was the victim of a crime perpetrated by the non-consenting party, as Marburger was the victim of a crime perpetrated by Holmes. Similarly, the eavesdropping was accomplished through a regularly used telephone extension; and the evidence obtained was used for corroboration purposes. With respect to the parties' privacy rights, the Supreme Court stated:

"Each party to a telephone conversation takes the risk that the other party may have an extension telephone and may allow another to overhear the conversation. When such takes place there has been no violation of any privacy of which the parties may complain." Rathbun v. United States, supra, 355 U.S. at 111, 78 S.Ct. at 164.

The only real distinction between Rathbun and Holmes is that Holmes' conversation was recorded. However, since the constitutional question centers around the interception by a government third party, we do not find the distinction in the means of disclosure dispositive.

We also note that Rathbun was approved by the Supreme Court in a decision subsequent to Katz. Lee v. Florida, 392 U.S. 378, 381, 88 S.Ct. 2096, 20 L. Ed.2d 1166 (1968).

In Lopez v. United States, supra, an Internal Revenue Agent was equipped with a pocket tape recorder for the purpose of obtaining corroborative evidence of a bribe. During the recorded conversation, Lopez made additional bribes; and he was convicted only for the bribes made during that conversation. In upholding the admission into evidence of the recording, the Supreme Court first noted that the agent had a clear right to be present at the conversation in Lopez's office, and to which the agent had been invited, and to testify as to the subject matter of the conversation at Lopez's trial. For this reason, there was

"no `eavesdropping\' whatever in any proper sense of that term. The Government did not use an electronic device to listen in on conversations it could not otherwise have heard. Instead, the device was used only to obtain the most reliable evidence possible of a conversation in which the Government\'s own agent was a participant and which that agent was fully entitled to disclose." Lopez v. United States, supra, 373 U.S. at 439, 83 S.Ct. at 1388.

With respect to an alleged invasion of Lopez's right to privacy, the court stated that "the risk that (Lopez) took in offering a bribe to (the Government agent) fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording." Id.; Cf. Hoffa v. United States, 385 U.S. 293, 302, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966).

Although the instant case is factually closer to Rathbun (because Rathbun was concerned with an eavesdropping, and there was no eavesdropping present in Lopez), the Court's concern in Lopez with the preservation of accurate evidence is relevant to the Marburger-Holmes conversation. In this connection, we find that the use of the recording at Holmes' trial insured that the jury would hear exactly what Marburger heard. In her dissent, Judge Hufstedler states that one of the dangers of the recorded conversation is that the recording does not record facial expressions or other bodily gestures inherent in normal conversation. Without discussing the validity of this concern, we merely note that it is not appropriate under the facts of this case: facial expressions and bodily gestures were not transmitted over the telephone to Marburger; and the jury obtained the precise communication that Marburger received.

Katz v. United States is said to make the holdings in On Lee, Rathbun, and Lopez nugatory, not because of the factual holding in Katz, but because of the principles enunciated therein. In Katz a listening and recording device was attached to a public telephone booth by Government officials. No warrant had been obtained, and neither party to the conversation granted permission to the government for the latter's action. The Supreme Court held that "the Fourth Amendment protects people, not places," and disallowed the evidence, overruling the "trespass" approach to the Fourth Amendment in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L. Ed. 944 (1928), and Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L. Ed. 1322 (1942). The Court stated that the government's activities "violated the privacy upon which . . . (Katz) . . . justifiably relied while using the telephone booth and thus constituted a search and seizure within the meaning of the Fourth Amendment." 389 U.S. at 351-353, 88 S.Ct. at 511-512.

We first turn to circuit decisions. My sister Hufstedler disposes of the conclusions of other circuits approving "consensual" electronic surveillance by a brief mention in footnote 30 of her dissent. She does not discuss them, but dismisses them by the conclusion: "None of them undertakes any independent analysis. . . ."

Eight other circuits have supported this majority opinion (in addition to the Ninth) and declined to follow the position urged by the dissent.

Each have considered the question of the effect of Katz on consensual interception of oral communications. Each one has held that Katz is not applicable. Dancy v. United States, 390 F.2d 370 (5th Cir. 1968), in which Katz was...