State v. Delaurier

• Decision Date: 21 February 1985
• Docket Number: No. 84-76-C,84-76-C
• Citation: 488 A.2d 688
• Parties: STATE v. Leo L. DELAURIER. A.
• Court: Rhode Island Supreme Court

Page 688

488 A.2d 688

STATE v. Leo L. DELAURIER.

No. 84-76-C.A.

Supreme Court of Rhode Island.

Feb. 21, 1985.

Dennis J. Roberts II, Atty. Gen., John E. Migliaccio, Asst. Atty. Gen., for plaintiff.

Mark L. Smith, Smith & Smith, Woonsocket, for defendant.

OPINION

MURRAY, Justice.

On November 2, 1983, a private citizen residing in Woonsocket telephoned the Woonsocket police department and made a rather unusual report. She related to the police that her son had been playing with the dial on her AM radio and had tuned in to what appeared to be a man discussing the sale of drugs. It sounded as if the man was speaking on the telephone. Two detectives were dispatched to her house. Upon arrival, the detectives listened to the woman's AM radio, which had remained tuned to the same frequency, and heard what sounded like a telephone ringing. No one answered. The detectives reported their experience back to the station, whereupon Captain Francis J. Lynch ordered that the station's AM radio be taken to another location and monitored for illegal drug transactions.

The department's "standard every day AM radio" was monitored for the next several weeks and certain conversations were recorded on tape. According to Captain Lynch, the recorded conversations involved "the sale of marijuana, cocaine, gambling and prostitution." The defendant, Leo L. Delaurier, was identified as the owner of the phone that the police were monitoring by AM radio, and several members of the department recognized the voice as his. The department's radio picked up, and the police recorded, both incoming and outgoing calls from Delaurier's phone. The defendant was completely unaware that his phone conversations, which he has stipulated involved illegal activities, were being broadcast over the AM airwaves.

The explanation behind defendant's inadvertent broadcasts involved his "cordless telephone," a type of phone that has become popular over the last several years. Delaurier used a standard Radio Shack wireless telephone which operated, as do all such phones, by means of radio waves. When defendant spoke into his hand-held mobile unit, his voice was converted into radio waves and transmitted to a base unit, which in turn transmitted his voice to the receiving party. Transmission of defendant's voice from the base unit to the receiving party was accomplished by means of ordinary telephone transmission lines. Conversely, incoming callers' voices were transmitted through telephone lines to defendant's base unit, which then transmitted those voices to the hand-held mobile unit by means of radio waves. It was these radio waves, both incoming and outgoing, which were picked up by the police department's AM radio.

On December 16, 1983, an affidavit summarizing the results of the department's investigation was prepared by Captain Lynch and submitted to a District Court judge. Arrest and search warrants were issued and executed on that date. Delaurier was subsequently arrested and charged with conspiring to violate the Rhode Island Uniform Controlled Substances Act, G.L.1956 (1982 Reenactment) chapter 28 of title 21. Further, the state charged that Delaurier had violated the conditions of bail bond set in pending cases and sought to revoke his bail. A bail-revocation hearing was held on December 28, 1983. The hearing justice, after hearing testimony centered largely on the recordings made by the Woonsocket police department, was

"more than reasonably satisfied that Mr. Delaurier has broken the terms of his release. The recognizance requires him to keep the peace and be of good behavior, and needless to say, he's enjoined from breaking the law while he's on a bail bond. And I think the conversations which were overheard clearly show, at the very least, an agreement or conversations concerning agreement to do illegal things such as the delivery and acceptance of cocaine."

The defendant was found to be in violation of the conditions of bail set in the cases pending against him and ordered to be held without bail. He now appeals from that order, ¹ setting forth two independent arguments. First, defendant claims that the listening to and recording of his telephone conversations was prohibited by law and therefore constituted inadmissible evidence at the bail-revocation hearing. Second, defendant claims that the judicial notice taken by the hearing justice that certain instructions were provided to defendant when he bought his phone constituted a denial of his right to confrontation.

We first consider defendant's motion, made at the bail-revocation hearing, to suppress the evidence generated through the monitoring and taping of his phone conversations. The defendant argues that the denial of this motion was in error. Before discussing the merits of this argument, we briefly set forth the statutory background upon which the motion must be premised.

We begin with the proposition that "evidence, even though illegally obtained, is admissible at a bail revocation hearing if it is factually reliable; in other words, such evidence may, where relevant and reliable, serve as the evidence required to 'reasonably satisfy that there [has] been a violation.' " Bridges v. Superior Court, 121 R.I. 101, 104, 396 A.2d 97, 99 (1978) (quoting Mello v. Superior Court, 117 R.I. 578, 587, 370 A.2d 1262, 1266 (1977)). The Bridges court came to this conclusion by balancing "the benefit of any possible increased deterrence of future police misconduct achieved by extension of the [exclusionary] rule [to bail revocation hearings] against the harm likely to result to society from that extension." Id. 121 R.I. at 107, 396 A.2d at 100. The court determined that applying the exclusionary rule to bail revocation hearings would result in only a negligible increase in deterrence of police misconduct. Weighed against the harm to the bail system if a violator were allowed to escape the consequences of his violation through use of the exclusionary rule, the Bridges court decided that extension of the exclusionary rule to bail-revocation hearings was unwarranted. We reaffirm that holding today. The exclusionary rule simply does not apply to bail-revocation hearings. ² There has been no argument that the recordings are factually unreliable. Thus, even granting that the recordings and the evidence generated therefrom were illegally obtained, such evidence was properly admissible under Rhode Island law at defendant's bail-revocation hearing. Recognizing this fact, defendant accordingly turns to federal law for assistance.

Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C.A. §§ 2510 through 2520 (1970) (title III), sets forth a comprehensive federal scheme regulating the use of certain "electronic, mechanical, or other devices" for purposes of eavesdropping on the wire or oral communications of others. Title III was enacted to counter what Congress perceived to be the increasing threats to privacy resulting from the use of sophisticated electronic devices, and to remedy the inadequacy of the limited prohibitions contained in the early communications act, 47 U.S.C.A. § 605 (1962). United States v. Carroll, 332 F.Supp. 1299 (D.D.C.1971). Title III's purpose has been described as twofold: (1) to protect the privacy of oral and wire communications, and (2) to provide, on a uniform basis, the circumstances and conditions under which interception of such communications would be allowed. United States v. Cianfrani, 573 F.2d 835, 855 (3rd Cir.1978). The latter goal is accomplished by extending the scope of its authority to both federal and state courts. 18 U.S.C.A. § 2515. We thus turn to the provisions of Title III to determine whether the monitoring and taping of defendant's phone conversations, unwittingly broadcast over the AM airwaves, was in violation of federal law. A review of those provisions is therefore in order.

It is undisputed that §§ 2516 through 2519, which set forth a procedure for obtaining judicial authority prior to the interception of wire or oral communications, were not complied with. Noncompliance with those sections would bar the use of protected communications at defendant's bail-revocation hearing, because title III's exclusionary rule is broader in scope than the Rhode Island exclusionary rule discussed above. It states that

"Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter." 18 U.S.C.A. § 2515.

The above provision applies to "any trial, hearing or other proceeding" and thus is applicable to the bail-revocation hearing in question.

The question before us, then, is whether defendant's communications were protected "wire" or "oral" communications and, if so, whether they were "intercepted" by the Woonsocket police department. To determine this, we turn to the definitional section of title III.

The term "wire communication" is defined by title III as

"any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications." 18 U.S.C.A. § 2510(1). ³

At least three courts have considered whether communication over a telephone device utilizing radio waves is a "wire communication" within the meaning given that term above. Two of those courts have concluded that the term does not encompass such radio-assisted...