Edwards v. Bardwell, Civ. A. No. 85-865-A.
| Decision Date | 10 April 1986 |
| Docket Number | Civ. A. No. 85-865-A. |
| Citation | 632 F. Supp. 584 |
| Parties | Marion EDWARDS v. Stanford O. BARDWELL, Jr. and John Doe. |
| Court | U.S. District Court — Middle District of Louisiana |
Lewis O. Unglesby, Unglesby & Brown, Baton Rouge, La., for plaintiff.
Edward J. Gonzales, Asst. U.S. Atty., R. Joseph Sher and Larry L. Gregg, Torts Branch, Civil Div., Dept. of Justice, Washington, D.C., for defendant Bardwell.
Jack M. Dampf, D'Amico, Curet & Dampf, Baton Rouge, La., for defendant Doe.
Plaintiff initiated this action against Stanford O. Bardwell, Jr., the United States Attorney for this district, and a person identified only as John Doe, under the provisions of 18 U.S.C. § 2520 which authorize a civil action on behalf of any person whose wire or oral communication is intercepted, disclosed or used in violation of the Federal Wiretapping Act, 18 U.S.C. § 2510 et seq. The complaint alleges that Doe intercepted and tape recorded a portion of a conversation between Mr. Edwards and his attorney and then turned the tape over to the federal authorities and that Bardwell has made disclosure of the conversation to others.
The matter is before the court upon a "Renewed Motion to Dismiss or, in the Alternative, for Summary Judgment" filed on behalf of Bardwell. That motion has been copiously briefed and orally argued and is now submitted to the court. Plaintiff has also moved to amend the complaint so as to add Assistant United States Attorney Ian F. Hipwell as a defendant. Although no written opposition to the motion to amend has been filed, counsel for the United States Attorney opposed it at oral argument. Plaintiff also initiated an action against Doe and his insurer, State Farm Insurance Company in state court which, following an amendment to the petition specifically alleging that Doe's interception of the conversation was in violation of the Communications Act of 1934, 47 U.S.C. § 605, defendants have removed to this court, alleging federal question jurisdiction under 28 U.S.C. § 1331. That action was consolidated with the pending action by order of the court dated April 3, 1986, and plaintiff has now filed a motion to remand. Consequently, the issues in the removed action will not be considered at this time.
Bardwell's motion pleads the alleged immunity, absolute or alternatively qualified, of the United States Attorney and also argues that the undisputed facts establish that he is entitled to judgment in his favor. Doe, who has no immunity, absolute or qualified, has moved for summary judgment based upon his contention that the undisputed facts demonstrate no violation of 18 U.S.C. § 2511.
The undisputed facts establish that on an unspecified date in August, 1985, Mr. Edwards, who was then involved in a pending criminal case in the Eastern District of Louisiana, spoke with his attorney, John R. Martzell. Mr. Edwards spoke from his automobile over a radio telephone installed in the vehicle. Mr. Martzell spoke over the regular land-line telephone from his law office in New Orleans. Doe, who maintains a business office in Baton Rouge, was in that office and had in his possession a "Bearcat 350 Radio Receiver Scanner" of a type which is readily commercially available to the general public at numerous radio and electronics stores. The device has a scanning feature which monitors a prescribed number of radio frequencies or channels. Doe's device was scanning aircraft and other frequencies when the device picked up the conversation between Mr. Edwards and his attorney. After listening idly for a few minutes, Doe heard what he assumed could be a discussion of criminal activity and he then recorded the remainder of the conversation upon a small tape recorder. Doe subsequently mentioned to Assistant U.S. Attorney Hipwell that he had a tape recording of the conversation and Hipwell arranged for Doe to deliver it to the federal authorities. Bardwell has listened to the tape and has caused a written transcription of it to be prepared, both of which have been filed in this record under seal. Bardwell also contacted the United States Attorney for the Eastern District, where the trial was pending, and advised him of the existence of the tape recording for possible use in that criminal trial. The United States Attorney for the Eastern District declared that he had no interest in the tape recording and disclosed its existence to the court and to Martzell. This suit followed.
Any standard reference work or encyclopedia will disclose that a "radio telephone," which is fast becoming a popular fad, is simply a small radio set which converts sound waves into radio waves for broadcasting and converts radio waves into sound waves for receiving. When the person in the vehicle speaks over his radio telephone, his voice is broadcast upon a specific frequency to a transmitter/receiver maintained by the telephone company which then transmits the signal by telephone land-line to the person using the regular telephone. When the other person speaks the process is, of course, reversed. From a land-line terminal the voice is broadcast to the radio telephone. The voices of both persons are broadcast "in the clear," that is, no attempt is made to "scramble" or distort the signal. Thus, any person having a radio receiver within range of the broadcast can hear the conversation if his receiver is capable of receiving the frequency used. The frequencies or channels which a particular radio may receive are determined by the tuning device which it contains. A particular receiver may be constructed to receive a limited number of radio frequencies (i.e. only AM commercial radio stations, or both AM and FM radio stations or only commercial television stations) or to receive literally thousands of frequencies upon which may be broadcast and received police, fire, railroad, ambulance, aircraft, marine, citizens band, and many other types of radio broadcasts, including mobile radio telephones. Radio transmission and receiving is, in short, a matter of physics. The radio telephone in plaintiff's car is in all respects a radio transmitter/receiver, no different from any other such transmitter/receiver insofar as its physics is concerned. The device changes ordinary sound waves into radio waves and uses certain frequencies to radiate those radio waves in all directions and it also changes radio waves back into sound waves for two-way communication. When he uses his radio telephone, Mr. Edwards is a mobile amateur or "ham" radio station in every respect. His station is simply limited in the number of frequencies upon which it can broadcast and receive and is limited in power.
The Congress, in an attempt to secure the privacy of certain communications between people, has enacted the Federal Wiretap Law, specifically 18 U.S.C. § 2511 which prohibits the willful interception or willful use of "wire" or "oral" communications. "Wire communication" is defined by § 2510(1) as:
"Oral communication" is defined by § 2510(2) as: "... any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation."
Resolution of the question as to whether Doe's receipt or interception of and subsequent tape recording of the conversation between Mr. Edwards and Mr. Martzell violated Section 2511 depends upon whether the conversation constitutes a "wire communication" or an "oral communication."
Section 2511(1) prohibits willful interception, willful disclosure, or willful use of the contents of any wire or oral communication. Because of the definitions in § 2510, that section prohibits interception of all wire communications but prohibits interception of only those oral communications made under circumstances which justify an expectation of privacy.
Although many cases have been cited by the parties, only three are enlightening. In United States v. Hoffa, 436 F.2d 1243 (7th Cir.1970) cert. den., 400 U.S. 1000, 91 S.Ct. 455, 457, 27 L.Ed.2d 451 (1971), the court held that "there was no expectation of privacy in the ... calls ... which were exposed to everyone in that area who possessed an F.M. radio receiver or another automobile telephone tuned in to the same channel." (Id. at 1247). Thus, the Fourth...
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