Cross v. State

• Decision Date: 06 April 1973
• Docket Number: No. 47984,No. 2,47984,2
• Citation: Cross v. State, 128 Ga.App. 837, 198 S.E.2d 338 (Ga. App. 1973)
• Parties: William H. CROSS v. The STATE
• Court: Georgia Court of Appeals

Page 338

198 S.E.2d 338

128 Ga.App. 837

William H. CROSS v.The STATE.

No. 47984.

Court of Appeals of Georgia, Division No. 2.

April 6, 1973.

Rehearing Denied April 19, 1973.

Syllabus by the Court

1.The prohibitions of Code Ann. § 26-3001 on 'Unlawful Eavesdropping and Surveillance' relate to one who is not a party to the conversation.

2.The state's use of an agent who may reveal the contents of conversations with an accused does not violate the Fourth Amendment and no different result is required if the agent instead of immediately reporting and transcribing his conversation with the defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency.Defendant was indicted for the offense of bribery.This appeal is from the overruling of his motion to suppress tape recordings and the testimony of three police officers on the ground that this amounted to an illegal search and seizure of his conversation because there was no application for or issuance of a warrant authorizing electronic eavesdropping under Ch. 26-30 of the Criminal Code of Georgia.

It appears that an informer known to a police officer told the officer that a certain Johnson wanted to reach him.The officer then called Johnson and they arranged to meet.By agreement of his supervisors, an electronic transmitting device was concealed upon the officer's body for the meeting.No attempt was made to secure a warrant.Two other officers went along to receive and record the upcoming conversations.Shortly after the officer met Johnson, he was taken to another automobile where the defendant was seated.The officer had a conversation with the defendant in which the defendant allegedly offered money to the officer in return for intelligence-type information on police activities.

Rich, Bass, Kidd & Broome, Robert K. Broome, Casper Rich, William F. C. Skinner, Jr., Bryan M. Cavan, Decatur, for appellant.

Richard Bell, Dist. Atty., M. Randall Peek, Asst. Dist. Atty., Decatur, for appellee.

HALL, Presiding Judge.

The prohibitions found in Code Ann. § 26-3001 on 'Unlawful Eavesdropping and Surveillance' are inapposite here because they logically relate to one who is not a party to the conversation itself.One does not 'intercept' or 'overhear' a conversation that is made directly to him.He is not an eavesdropper nor does he have the conversation under 'surveillance'.See 'Eavesdropping', Black's Law Dictionary and Pavesich v. New England Life Ins. Co., 122 Ga. 190, 198, 50 S.E. 68.Anyone who makes a statement to another knows that the person to whom it is made may repeat it to others who may use it against him.The mere fact that the person to whom the statement was directed made a recording without the knowledge of the person recorded does not vitiate its evidentiary value.See97 A.L.R.2d 1283, 1302, 1306, §§ 10,12;29 Am.Jur.2d, 491Evidence, § 435.

This principle is well stated in a recent decision of the United States Supreme Court which has similar facts.United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453.

'Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374(1966), which was left undisturbed by Katz (389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576), held that however strongly a defendant may trust an apparent colleague, his expectations in this respect are not protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with the authorities.In these circumstances, 'no interest legitimately protected by the Fourth Amendment is involved,' for that amendment affords no protection to 'a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.'Hoffa v. United States, at 302, 87 S.Ct. at 413.No warrant to 'search and seize' is required in such circumstances, . . . or when the same agent, unbeknown to the defendant, carries electronic equipment to record the defendant's words and the evidence so gathered is later offered in evidence.Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462. . . .It is thus untenable to consider the activities and reports of the police agent himself, though acting without a warrant, to be a 'reasonable' investigative effort and lawful under the Fourth Amendment but to view the same agent with a recorder or transmitter as conducting an 'unreasonable' and unconstitutional search and seizure.Our opinion is currently shared by Congress and the Executive Branch, Title III, Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 212,18 U.S.C. § 2510 et seq.(1964 Ed., Supp. V), and the American Bar Association.Project on Standards for Criminal Justice, Electronic Surveillance, § 4.1(Approved Draft 1971).'United States v. White, supra, pp. 749, 753, 91 S.Ct. at pp. 1125, 1127.

Therefore, while the federal statute is worded differently, and while the Georgia statute is not under constitutional attack, the same reasoning supports the interpretation of § 26-3001: that it does not apply to one who is a party to the conversation.

The state has relied chiefly upon Code Ann. § 26-3006 which provides: 'Nothing in section 26-3001 shall prohibit the interception, recording and divulging of a message . . . (when) the message shall constitute the commission of a crime or is directly in the furtherance of a crime, provided at least one party thereto shall consent.'This section is also applicable, though redundant in view of the above interpretation of § 26-3001.It seems probable that § 26-3006 was intended to cover those situations in which the conversation was between two private parties, one of whom consented to the interception by some third party, most likely a law enforcement agency.This does not mean that if one of the parties to the conversation is a police officer who has consented that the section cannot apply.Defendant contends that the police will always consent to electronic eavesdropping, making the prohibition meaningless.Defendant has overlooked the clear wording which requires the consent of one of the parties to the conversation, not the 'consent' of the third party interceptor.The rationale for consent of a party is exactly the same as that stated in United States v. White, supra, and is also true under the federal statute.18 U.S.C.A. § 2511(2)(c).See alsoAnsley v. State, 124 Ga.App. 670, 674, 185 S.E.2d 562, cert. denied408 U.S. 922, 929, 92 S.Ct. 2489, 2503, 33 L.Ed.2d 333, 341.

The trial court did not err in overruling this motion to suppress.

Judgment affirmed.

CLARK, J., concurs.

EVANS, J., concurs specially.

EVANS, Judge (concurringspecially).

I do not agree with the majority opinion's statement in Headnote 1 that: 'The prohibitions of Code Ann. § 26-3001 on 'Unlawful Eavesdropping and Surveillance' relate to one who is not a party to the conversation' nor do I agree with the discussion of this subject beginning at page 838.(Emphasis supplied.)

If the private conversation of two persons is secretly (clandestinely) recorded by one of such persons, this constitutes an unlawful invasion of privacy.SeeCode Ann. § 26-3001(Ga.L.1968, pp. 1249, 1327).This statute goes far beyond mere 'eavesdropping' and specifically provides that it is also unlawful to 'transmit or record' the private conversation of...