Bishop v. State

• Decision Date: 15 December 1999
• Docket Number: No. A99A2332.,A99A2332.
• Citation: 526 S.E.2d 917,241 Ga. App. 517
• Parties: BISHOP v. The STATE.
• Court: Georgia Court of Appeals

526 S.E.2d 917

241 Ga. App. 517

BISHOP v. The STATE.

No. A99A2332.

Court of Appeals of Georgia.

December 15, 1999.

Certiorari Denied May 26, 2000.

J. William Morse, Marc D. Cella, Marietta, for appellant.

Patrick H. Head, District Attorney, Bruce D. Hornbuckle, Debra H. Bernes, Maria B. Golick, Assistant District Attorneys, for appellee.

ELDRIDGE, Judge.

Kyle Richard (Rick) Bishop filed an application for discretionary review of the Cobb County Superior Court's denial of his motion to suppress audiotaped recordings of his conversations with a 13-year-old girl victim, which recordings were made by the victim's parents without a court order. Because of the failure to have court authorization for the wiretap, this Court finds that the evidence should have been suppressed and reverses the trial court's ruling.

The record in this case shows the following relevant, but disputed, facts: In 1997, Bishop was a 38-year-old man residing with his wife in a Cobb County subdivision. The 13-year-old girl lived with her parents and sisters directly across the street from the Bishops. Bishop and the victim's family were good friends and often socialized.

Until the middle of 1996, the victim was a gifted student with excellent grades. However, between July 1996 and February 1997, the victim began to fail classes and experienced a dramatic change in demeanor. On February 20, 1997, the victim presented her mother with a falsified permission slip for a nonexistent, overnight school field trip. The victim's mother contacted the school when she became suspicious about the trip. When the victim was confronted with the forged permission slip and was asked to explain, the victim stated that Bishop had asked her to go with him to "Bike Week" at Daytona Beach, Florida, for the weekend. When the victim's parents confronted Bishop with this information, he claimed that the victim was "troubled," had been stalking him, and had tried to invite herself along on the trip.

However, at approximately 10:00 p.m. on February 28, 1997, the victim's mother became aware that the victim was talking to someone on the phone. The mother surreptitiously lifted up a phone receiver in another room and heard the victim talking to Bishop; the mother immediately recognized Bishop's voice. According to the mother, Bishop and the victim talked in sexual terms and discussed killing the victim's parents. The mother hung up the phone and then instructed the victim to get off the phone, claiming that she needed to make a work-related phone call. The mother immediately called the police.

Cobb County Police Detective Darell Streefkerk interviewed the victim and her parents the next day. According to Det. Streefkerk's investigative report, the victim denied that she and Bishop had engaged in any illicit behavior. Det. Streefkerk refused the parents' request for a wiretap of their phone line.

Within hours of the police interview, the victim's parents went to Radio Shack and purchased a tape recorder to tape all of the phone calls to and from their home. After installing the equipment, the parents recorded numerous phone conversations between Bishop and the victim. The victim's father compiled several of the conversations on a single tape and gave it to Det. Streefkerk on March 18, 1997.

Based on these tapes, Det. Streefkerk called Bishop and asked him to come in for an interview. Bishop and his wife were questioned by the detective. The Bishops claimed that the victim had an adolescent crush on Mr. Bishop and was stalking him by coming to their home, looking in their windows, and calling him at night. Det. Streefkerk instructed Bishop to avoid all contact with the victim.

The victim subsequently received extensive counseling for depression. In spring 1998, the victim told her therapist that she had engaged in sexual acts with Bishop. Det. Streefkerk again interviewed the victim, who described the molestation in detail. Bishop was arrested and indicted on child molestation, aggravated child molestation, and aggravated sexual battery.

Defense counsel filed a motion to suppress the contents of the audiotapes of the phone conversations between Bishop and the victim. A motion hearing was conducted on March 31, 1999, during which the victim and her mother testified regarding the circumstances of the phone conversations and the recording thereof. The victim specifically testified that, after receiving months of therapy, she was glad her parents made the tapes.

The trial court denied Bishop's motion to suppress.¹ This Court granted Bishop's application for appellate review, and this appeal followed. Held:

1. In his first assertion, Bishop claims that the trial court erred in denying his motion to suppress evidence of illegally taped phone conversations by failing to apply the child consent procedures as codified in OCGA § 16-11-66. This Court reluctantly agrees with Bishop's argument.

OCGA § 16-11-62 prohibits the interception or recording of a telephone call by any person who is not a party to the conversation. OCGA § 16-11-62(1), (4). This prohibition includes interceptions by family members. Kelley v. State, 233 Ga.App. 244, 248-249(2), 503 S.E.2d 881 (1998). "OCGA § 16-11-62 was intended to protect all persons from an invasion of privacy. Ransom [v. Ransom, 253 Ga. 656, 324 S.E.2d 437 (1985) ]." Id. at 249(2), 503 S.E.2d 881.

However, OCGA § 16-11-66 provides two specific exceptions which allow such interception.² OCGA § 16-11-66(a) reads as follows: "Nothing in Code Section 16-11-62 shall prohibit a person from intercepting a wire, oral, or electronic communication where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception." (Emphasis supplied.) Further, OCGA § 16-11-66(b) provides that the telephone conversations of a child under 18 years of age may be recorded and divulged if, upon written application by a private citizen, law enforcement agency, or prosecutor's office, a judge of a superior court and the child consent to such taping.

The judge shall issue the order provided by subsection (b) of the Code section only: (1) [u]pon finding probable cause that a crime has been committed; (2) [u]pon finding that the child understands that the conversation is to be recorded and that such child agrees to participate; and (3) [u]pon determining that participation is not harmful to such child.³

OCGA § 16-11-66(c).

Under OCGA § 16-11-67, "[n]o evidence obtained in a manner which violates [OCGA §§ 16-11-62 through 16-11-66.1] shall be admissible in any court of this state, except to prove violations of [such statutes]." This creates a state statutory privacy right.

(a) As an initial matter, it is undisputed that no superior court judge entered an order pursuant to OCGA § 16-11-66(b) in this case. Accordingly, that provision cannot provide a basis for admissibility of the audiotapes. (b) Therefore, the only way the tapes could have been admissible in this case is if they were recorded by "a party to the [conversation] or one of the parties to the communication [gave] prior consent to such interception." OCGA § 16-11-66(a). The trial court erroneously found that such consent was given by the following methods: (i) the parents' "vicarious consent" to the recording on behalf of their daughter; (ii) the victim's implied consent to the recording; and (iii) the victim's subsequent ratification of the recording.

(i) In its order denying Bishop's motion to suppress, the trial court ruled that the tapes were admissible under a "vicarious consent exception to Title III as applied in other jurisdictions." See Omnibus Crime Control & Safe Streets Act of 1968, 18 USC § 2510 et seq. ("Title III"); see also Pollock v. Pollock, 154 F.3d 601, 610 (6th Cir.1998); Campbell v. Price, 2 F.Supp.2d 1186, 1191 (E.D.Ark.1998); Thompson v. Dulaney, 838 F.Supp. 1535, 1544 (D.Utah 1993); Silas v. Silas, 680 So.2d 368, 371 (Ala.Civ.App.1996); but cf. Williams v. Williams, 229 Mich.App. 318, 581 N.W.2d 777 (1998) (rejecting the vicarious consent exception). The trial court held that the victim's parents could consent to the taping because they had "a good faith objectively reasonable basis for believing that it was necessary to consent [to such taping] on behalf of their thirteen year old daughter." In making such ruling, the trial court relied on the above-cited foreign case law interpreting Title III, instead of applying Georgia's statutory requirements under OCGA § 16-11-66. Such reliance was error.

Title III was enacted in 1968 to protect the privacy of wire and oral communications and to regulate the conditions under which interceptions would be allowed. Pub.L. 90-351, Title III, § 801, p. 253, 82 Stat. 211 (1968); U.S.Code Cong. & Admin. News, 90th Cong., pp. 2112, 2153 (1968) (Report of the Senate Committee on the Judiciary); see also U.S.Code Cong. & Admin. News, 99th Cong., p. 3555 (1986) (legislative history of the Electronic Communications Privacy Act, which amended Title III); United States v. Giordano, 416 U.S. 505, 514, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). Presently, Title III prohibits the interception of wire, oral or electronic communications without (1) a court order or (2) the prior consent of a party to the conversation. 18 USC § 2511(1), (2)(a)(ii) and (d).

Unfortunately, for situations which involve minors, as in this case, when Congress enacted Title III, it "did not intend to occupy the entire field of electronic surveillance to the exclusion of state regulation." People v. Conklin, 12 Cal.3d 259, 114 Cal.Rptr. 241, 522 P.2d 1049, hn. 9 (1974) (providing a comprehensive review of Title III's legislative history). See also U.S. Const., Art. VI, cl. 2 (Supremacy Clause); City of Atlanta v. Watson, 267 Ga. 185, 192(3), 475 S.E.2d 896 (1996); Macon-Bibb County Hosp. Auth. v. Nat. Treasury Employees Union, 265 Ga. 557, 558(2), 458 S.E.2d 95 (1995) (the...