727 F.Supp. 683 (D.Me. 1989), Civ. 89-0174, Griggs-Ryan v. Connelly

Docket Nº:Civ. 89-0174
Citation:727 F.Supp. 683
Party Name:Griggs-Ryan v. Connelly
Case Date:December 13, 1989
Court:United States District Courts, 1st Circuit, District of Maine

Page 683

727 F.Supp. 683 (D.Me. 1989)

Gerald GRIGGS-RYAN, Plaintiff,


Richard CONNELLY and The Town of Wells, Defendants.

Civ. No. 89-0174 P.

United States District Court, D. Maine.

Dec. 13, 1989

Page 684

        Thomas Van Houton, Sanford, Me., for plaintiff.

        John M.R. Paterson, Bernstein, Shur, Sawyer & Nelson, Portland, Me., for defendants.


        GENE CARTER, Chief Judge.

        Plaintiff filed suit alleging a violation of 18 U.S.C. § 2511, 1 et seq. (wire interception and disclosure provisions of Title III of the Omnibus Crime Control and Safe Streets Act) and seeking damages pursuant to 18 U.S.C. § 2520. This matter is now before the Court on Plaintiff's Motion for Summary Judgment, filed on October 23, 1989, supported by his own affidavit and a Statement of Material Facts Not in Dispute. Defendants filed an objection and a counter-motion for summary judgment, supported by an affidavit and a Statement of Material Facts. Defendants argue, inter alia, that Plaintiff impliedly consented to the original interception of Plaintiff's telephone call, and, therefore, Defendant Connally's conduct of disclosing or using that information cannot violate 18 U.S.C. §§ 2511(1)(c) & (d). 2 The Court, relying on the undisputed facts presented by the parties, finds that Plaintiff's actions fall within the consent exception, 18 U.S.C.§ 2511(2)(c), to liability under the interception and disclosure provisions of Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2511(1)(c) & (d). Therefore, Plaintiff's motion for summary judgment will be denied and Defendants' counter-motion will be granted.

        This action rests, in part, on the initial interception of Plaintiff's telephone call by Beaulah Smith and her subsequent disclosure of the contents of that telephone call to Defendant Connally. The Court will set out these facts, which underly the conduct of the parties to this suit, as well as the facts which directly concern the parties' conduct. 3 None of the facts of this case are in dispute.

        Beaulah Smith (Smith) runs a summer campground business from her home; the business includes the renting of guest rooms in her home. During the course of the summer of 1987, Smith received obscene, harassing, and threatening telephone calls. Smith believed that some of

Page 685

the calls came from whom she understood was Plaintiff's friend, Paul Jackson. Smith began recording incoming calls on her telephone answering machine after making various complaints to the Wells Police Department, and upon that department's advice. It was Smith's normal practice to stop the answering machine from recording upon ascertaining that the current incoming telephone call was not obscene or threatening.

        Smith informed Plaintiff on more than one occasion that she was recording all incoming calls in an attempt to catch the person or persons who were making the obscene and threatening calls she had received. Smith also told Plaintiff to warn his friends. There is no evidence that Smith qualified her statements to Plaintiff, she simply told Plaintiff that she would record all incoming calls.

        On September 14, 1987, Plaintiff was residing in one of the guest rooms in Smith's home, although Smith's business was not officially open, to perform some carpentry work agreed upon by Plaintiff and Smith. On the evening of September 14, 1987, Smith answered a telephone call on the telephone located in her bedroom. The caller identified himself as Richard Kierstad and requested to speak to Plaintiff. Smith had her daughter page Plaintiff, and Plaintiff picked up an extension telephone located in the office portion of the house. As Smith began to hang up the phone, she heard the caller state, "hi, its Paul, she thinks its Keirstad." Because Smith suspected that "Paul" was Paul Jackson, the person who she speculated made some of the obscene and threatening calls, Smith continued to listen to the conversation and did not turn off the answering machine, thereby recording the entire conversation.

        Smith called the police, believing she had overheard information concerning an illegal marijuana transaction. Defendant Connally, a detective for the Wells Police Department, and patrolman Paul Verrel responded to Smith's call. Connally...

To continue reading