Chandler v. State, CR-94-1840

• Decision Date: 10 May 1996
• Docket Number: CR-94-1840
• Citation: 680 So.2d 1018
• Parties: Karl Quinton CHANDLER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1018

680 So.2d 1018

Karl Quinton CHANDLER v. STATE.

CR-94-1840.

Court of Criminal Appeals of Alabama.

May 10, 1996.

Rehearing Denied June 21, 1996.

Certiorari Denied Aug. 30, 1996

Alabama Supreme Court 1951672.

Lindsey Mussleman Davis, Florence, for Appellant.

Jeff Sessions, Atty. Gen., and Joseph Marston, Asst. Atty. Gen., for Appellee.

LONG, Judge.

Karl Quinton Chandler, the appellant, was convicted of the possession of heroin and was sentenced to 10 years' imprisonment. The appellant contends that all the evidence against him was the result of the warrantless interception by the police of his conversations over a cordless telephone and that, therefore, that evidence should have been suppressed. He specifically argues that the interception of his conversations on his cordless telephone violated Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2521; Article 1, § 5, Constitution of Alabama 1901; and §§ 13A-11-30 and 13A-11-31, Code of Alabama 1975.

Evidence presented at the suppression hearing and the trial in this case revealed the following: Florence Police Officer Bennie Johnson's patrol car was equipped with a Bearcat, Realistic, or Uniden radio scanner that Officer Johnson had purchased privately from either a Wal-Mart discount store or a Radio Shack electronics store. The scanner allows its user to monitor a number of radio frequencies. Officer Johnson testified that he had programmed the scanner to a radio frequency commonly used by cordless telephones so that he could listen to cordless telephone conversations. On March 17, 1994, at 12:46 a.m., Officer Johnson was patrolling within a block of the appellant's residence, randomly listening to the scanner when he overheard a conversation between the appellant and the appellant's brother implicating the appellant in drug-dealing activity. Officer Johnson then activated the police-issue video camera in his patrol car and, through the audio-recording device on the camera recorded additional conversations between the appellant and his brother. As a result of these overheard conversations and the recordings, an investigation was initiated that resulted in the appellant's arrest on drug trafficking charges. A grand jury subsequently indicted the appellant for unlawful possession of heroin, and a jury found the appellant guilty of that offense.

I.

The appellant first argues that Officer Johnson's interception of his cordless telephone conversations violated the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2521. He argues that the evidence resulting from the warrantless interception should have been excluded.

"Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronics Communications Privacy Act of 1986, forbids the warrantless interception of wire, oral, and electronic communications. 18 U.S.C. § 2511." In re Askin, 47 F.3d 100, 102 (4th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 382, 133 L.Ed.2d 305 (1995). "Title III includes an exclusionary rule; illegally intercepted communications may not be introduced as evidence in any trial or hearing. 18 U.S.C. § 2515." United States v. Smith, 978 F.2d 171, 175 (5th Cir.1992), cert. denied, 507 U.S. 999, 113 S.Ct. 1620, 123 L.Ed.2d 179 (1993). Title III's exclusionary rule applies to proceedings in state courts as well as to those in federal courts. See Ex parte O'Daniel, 515 So.2d 1250 (Ala.1987) (holding that Title III applies to spousal wiretapping); Hudson v. Hudson, 534 So.2d 617 (Ala.Civ.App.1988) (following O'Daniel ).

The appellant concedes that at the time his case arose, as was the case in Askin, supra, the radio portion of cordless telephone communications was expressly excluded from Title III's definitions of "wire communications" and "electronic communications" and was therefore excluded from Title III's ban on the warrantless interception thereof. Askin, 47 F.3d at 102; see §§ 2510(1) (defining "wire communication") and 2510(12)(A) (defining "electronic communication"). ¹ As to whether cordless telephone communications fit within Title III's coverage of "oral communications," we note:

"Virtually every court to have faced the question of whether cordless phone conversations were oral communications under § 2510(2) answered in the negative. See Smith, 978 F.2d at 175-76; Tyler v. Berodt, 877 F.2d 705, 706-07 (8th Cir.1989), cert. denied, 493 U.S. 1022, 110 S.Ct. 723, 107 L.Ed.2d 743 (1990); United States v. Carr, 805 F.Supp. 1266, 1271-72 (E.D.N.C.1992); Edwards v. Bardwell, 632 F.Supp. 584, 589 (M.D.La.1986). Moreover, Congress has always addressed the question of cordless telephone conversations as wire or electronic, not oral, communications. See e.g., 18 U.S.C. §§ 2510(1), 2510(12)(A); Pub.L. No. 103-414, § 202(b), 108 Stat. 4279 (1994) (amending § 2511(4)(b) of Title III, which provides penalties for the interception of certain 'wire or electronic communication,' to include cordless telephone communication)."

Askin, 47 F.3d at 102-03. See also Smith, supra, 978 F.2d at 175 ("The Senate Report on the 1986 amendments [to Title III] explained that '[i]n essence, an oral communication is one carried by sound waves, not by an electronic medium.' S.REP. No. 541 99th Cong., 2d Sess. 13 (1986), reprinted in 1986 U.S.C.C.A.N. 3555, 3567.").

Because the radio portion of cordless telephone communications was expressly excluded from the definition of wire and electronic communications under Title III's coverage at the time the appellant's case arose and because the appellant's cordless telephone conversations were not "oral communications," the appellant's claim that the interception of his cordless telephone conversations violated Title III is without merit.

II.

The appellant next argues that even if his cordless telephone conversations were not protected by Title III, he nonetheless had a reasonable expectation of privacy in those conversations under the Alabama Constitution; therefore, he says, the evidence arising from the warrantless interception of his conversations was due to be excluded.

Article I, § 5, Constitution of Alabama 1901, states:

"That the people shall be secure in their persons, houses, papers, and possessions from unreasonable seizures or searches, and that no warrants shall issue to search any place or to seize any person or thing without probable cause, supported by oath or affirmation."

The language of Article I, § 5, of the Alabama Constitution is substantially similar to the language of the Fourth Amendment to the United States Constitution, and the case law addressing the scope of Article I, § 5, relative to the scope of the Fourth Amendment has consistently indicated that the protection afforded by Article I, § 5, is no greater than that provided by the Fourth Amendment. See, e.g., Oswalt v. State, [Ms. CR-93-0522, September 9, 1994], --- So.2d ---- (Ala.Cr.App.1994); Hagood v. Town of Town Creek, 628 So.2d 1057 (Ala.Cr.App.1993); Skipper v. State, 387 So.2d 261 (Ala.Cr.App.1980). It appears that Alabama's appellate courts have never addressed the issue of one's expectation of privacy in cordless telephone communications in any context. Therefore, when considering the appellant's argument that he had a reasonable privacy expectation in his cordless telephone conversations under the Alabama Constitution, we will turn to a highly persuasive Fourth Amendment analysis undertaken by the Fifth Circuit Court of Appeals in United States v. Smith, 978 F.2d 171 (5th Cir.1992), cert. denied, 507 U.S. 999, 113 S.Ct. 1620, 123 L.Ed.2d 179 (1993), where the Court of Appeals considered a defendant's claim concerning cordless telephone conversations very similar to the appellant's claim here. We find Smith 's Fourth Amendment analysis of the appellant's claim appropriate also because, in his brief to this court and in his contentions at the trial level, the appellant at times conflates his arguments concerning Article I, § 5, with Fourth Amendment considerations.

The appellant has drawn our attention to Mozo v. State, 632 So.2d 623 (Fla.Dist.Ct.App.1994), where a Florida court held that the random interception of cordless telephone communications violated two right-of-privacy provisions of the Florida Constitution--Article I, §§ 12 and 23. The holding in Mozo, however, was based on unique language in the Florida Constitution specifically including protection for "private communications" and granting Florida citizens "the right to be let alone and free from governmental intrusion." See Article I, §§ 12 and 23, Constitution of Florida. Alabama's Constitution contains no such provisions; therefore, we find the Florida case to be inapposite.

We believe that the Court of Appeals' decision in Smith, supra, 978 F.2d 171, is more pertinent to the circumstances presented by the appellant's case. In Smith, the defendant's neighbor, suspecting that the defendant was involved in break-ins at the neighbor's house, eavesdropped on the defendant's cordless telephone conversations using a Bearcat brand scanner and in the course of doing so discovered that the defendant was a drug dealer. The neighbor conveyed this information to the police, who instructed him to tape-record the defendant's telephone calls and then assisted him in doing so. The intercepted calls and tape recordings led to the arrest of the defendant on drug trafficking charges. The defendant argued that the interception of his cordless telephone conversation intruded upon his reasonable expectation of privacy in those conversations.

After setting forth the historical backdrop of the Fourth Amendment, the Court of Appeals in Smith considered the question of one's expectation of privacy in cordless telephone communications:

"The legal standard that Smith must satisfy in order to show a Fourth Amendment violation is well established. First, he must show that a government activity intruded...