509 F.2d 605 (5th Cir. 1975), 74--2557, United States v. Clegg

Docket Nº:74--2557.
Citation:509 F.2d 605
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Michael William CLEGG, Defendant-Appellant.
Case Date:March 05, 1975
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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509 F.2d 605 (5th Cir. 1975)

UNITED STATES of America, Plaintiff-Appellee,


Michael William CLEGG, Defendant-Appellant.

No. 74--2557.

United States Court of Appeals, Fifth Circuit

March 5, 1975

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[Copyrighted Material Omitted]

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Donald Gunn, Houston, Tex., for defendant-appellant.

Anthony J. P. Farris, U.S. Atty., Joe Doucette, Mary L. Sinderson, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before RIVES, GODBOLD and GEE, Circuit Judges.

GEE, Circuit Judge:

Michael W. Clegg was convicted of thirteen counts of wirefraud violations of 18 U.S.C. § 1343. He believes that his convictions must be reversed for a number of reasons, some of which are weighty but several of which are totally without merit. The latter will be touched upon but briefly. Primary among the reasons which warrant discussion is his contention that certain evidence introduced against him at trial was obtained and used both in violation of his Fourth Amendment right to be free from unreasonable searches and seizures and in violation of 47 U.S.C. § 605. 1 Clegg argues that since the evidence

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was illegally obtained, it should have been suppressed and that the trial court's failure to exclude it was reversible error.

In May, 1972, Billy D. Hubbard, a Southwestern Bell security supervisor, received information from a Victor Brookshire that appellant Clegg might be using an electronic device called a 'blue box' to circumvent the toll call billing system of the phone company. After a meeting with Brookshire at which Special Agent R. W. Suter of the FBI was present, Hubbard attached a TTS 176 device to Clegg's business and residence telephone lines. This device, which is capable of detecting blue box calls, monitors the line to which it is attached and produces a paper tape record of the time and date of all outgoing telephone calls, local and long distance, complete and incomplete. On the day following its installation, the TTS 176 detected illegal long distance calls emanating from Clegg's business phone. Later the machine noticed that similar calls were being placed from his residence telephone. In all, over two hundred blue box calls were discovered by the TTS 176 during the period of approximately four months that it was used to keep tabs on Clegg's calls.

Once Hubbard had established that blue box calls were being placed from Clegg's telephone, he took steps to verify that the calls were being completed and to identify the illegal caller. 2 This he did by attaching a recorder, as well as the TTS 176, to Clegg's lines and recording audibly the ringing and salutations only of fifteen to twenty blue box calls. From the salutations alone the caller was identified as appellant.

Hubbard testified that during the period that the TTS 176 was monitoring Clegg's calls there was an ongoing nationwide investigation being conducted by both the FBI and Bell security investigators. The purpose of this investigation was to identify the source of the blue boxes. For it to succeed, coordination was required, and it was necessary that the arrest of all blue box users be as nearly simultaneous as possible. Thus, Hubbard kept Agent Suter, who was conducting an investigation on his own, informed of the status of the telephone company's investigation and of the fact that blue box calls were being detected. He denied that he informed

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Suter of any of his procedures or informed him that he was making voice recordings of the salutations. Suter provided Hubbard no advice or guidance.

Special Agent Suter testified that as a result of prior anonymous tips and the information provided by Brookshire he undertook his own investigation of Clegg. His investigation was conducted in conjunction with the FBI office in Minneapolis. 3 At a time coordinated with the Minneapolis office, search warrants for Clegg's home and office, as well as a warrant for his arrest, were obtained. When the warrants were executed on September 11, 1972, Clegg was discovered in the act of using a blue box. He was arrested, and pursuant to the search warrant the blue box and several pamphlets explaining its use were seized.

Clegg's argument that the paper tapes printed by the TTS 176 and the voice recordings were obtained in violation of his Fourth Amendment right to be free from unreasonable searches and seizures is bottomed on either the assumption that Investigator Hubbard was for all purposes a de facto agent of the FBI, or that Agent Suter participated in every aspect of Bell's investigation. If either were true, there would be governmental action involved and a serious possibility that the warrantless monitoring of Clegg's telephones with the TTS 176 and the voice recorder would have violated his Fourth Amendment rights. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). However, Hubbard and the FBI were conducting separate investigations. Although Hubbard kept Agent Suter informed of the status and to some degree the results of his investigation, there is no indication in the record that he acted at the behest or suggestion, with the aid, advice or encouragement, or under the direction or influence of the FBI. When we consider all the circumstances of the case, as we are directed to do by Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), we must conclude that Hubbard was not an instrument or agent of the FBI. This is not a case in which the FBI, by secretly (or even unintentionally but effectively) deputizing the telephone company and its investigator, attempted to avoid the restrictions against wiretapping placed upon the government by the Constitution and by statute. Rather, it is the case of a private, statutorily authorized investigation by the employee of a corporation intent upon protecting its property rights.

The fact that United States law enforcement authorities were informed that the investigation was underway and that it had uncovered evidence of criminal activity does not automatically change its private nature. Nor does the fact that Suter knew of the existence and nature of Hubbard's investigation necessarily make him a participant in all of it. It is only when the government has preknowledge of and yet acquiesces in a private party's conducting a search and seizure which the government itself, under the circumstances, could not have undertaken that the problem discussed in United States v. Mekjian, 505 F.2d 1320 (5th Cir. 1975) arises. Preknowledge and acquiescence make a search by a private party a search by the government. Fourth Amendment standards must be complied with. 4 Any evidence which, for Fourth Amendment reasons, would have been excluded had it been gathered by the government pro se would, of course, have to be excluded if gathered by the only nominally private party. It would be excluded with the aim of deterring the government from further attempts to utilize knowingly the services of a private party to do for it that which it is forbidden to do for itself. However, any reason for exclusion and, as well, for attributing the search to the

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government disappears when the activity of the private party is nothing more than activity which the government itself could legally have pursued. In such a case the government has not used a private party to circumvent anything except, perhaps, work.

In the case under consideration it is important to note that Agent Suter of the FBI had no foreknowledge that Investigator Hubbard intended to or would aurally acquire any of the content of Clegg's conversations. It is undisputed that all that the FBI knew was that Hubbard intended to and subsequently did successfully monitor Clegg's telephone lines with the TTS 176. As mentioned, this device, which is similar in function to a pen register, 5 notes only the existence (including the time of a call and the number dialed) of telephonic communications. It discloses nothing of the content. The Fourth Amendment, however, protects only the content of a telephone conversation and not the fact that a call was placed or that a particular number was dialed. United States v. Baxter, 492 F.2d 150, 167 (9th Cir. 1973). This is so because telephone subscribers have no reasonable expectation that records of their calls will not be made. It is, in fact, well known that such records are kept. United States v. Covello, 410 F.2d 536, 542 (2d Cir. 1969). For this reason, the acquisition by the government by means of a pen register or a TTS 176 of nothing more than information concerning the dates and times of calls placed from a particular telephone and the numbers dialed does not offend the Fourth Amendment. Korman v. United States, 486 F.2d 926 (7th Cir. 1973). 6 Thus, when Suter was informed only that Bell intended to use and later did use the TTS 176, he was told nothing which did or should have put him on notice that Hubbard was engaged in activities which, if undertaken by the government, would have violated the Fourth Amendment. 7 Specifically, Suter was not put on notice that Hubbard planned to intercept the salutations 8 of some of Clegg's conversations. This being the case, there is no reason to exclude any of the evidence gathered by Hubbard on the ground that it was obtained by means of illicit government conduct. The information concerning the number of illegal calls placed by Clegg, as well as the times and dates of these calls and the telephone numbers dialed, is admissible because, even if Hubbard's use of the TTS 176 is attributed to the government so as to make its employment 'government action,' there is no bar to governmental action of this type. Exclusion of the...

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