Hoskins v. Howard

Decision Date04 December 1998
Docket NumberNo. 23755,23755
Citation971 P.2d 1135,132 Idaho 311
PartiesSandy HOSKINS and Tony Lamanna, Plaintiffs-Appellants, v. Robert HOWARD, individually, and as Deputy Sheriff of Bonner County, and Linda Howard, and John Does I through V, Defendants-Respondents. . Coeur d'Alene, September, 1998 Term
CourtIdaho Supreme Court

Scott W. Reed, Coeur d'Alene, for appellants.

Lukins & Annis, Coeur d'Alene, for respondents. Susan P. Weeks argued.

TROUT, Chief Justice.

In this case we decide whether the Idaho Communications Security Act (ICSA) protects cordless telephone communications. The ICSA protects Idahoans against the willful interception of wire and oral communications and gives those injured a private right of action for damages. I.C. § 18-6709. Those violating the provisions of the ICSA also face criminal sanctions, and no evidence obtained in violation of the Act is admissible in a court of law. I.C. § 18-6705.


In July 1993, Robert Howard (Robert), a deputy for the Bonner County Sheriff's Department borrowed a radio scanner from work. He took it home to become more familiar with its functions and to identify certain frequencies. Sometime during that month Robert and his wife, Linda, used the scanner to listen to a cordless telephone conversation between their neighbor Sandy Hoskins (Hoskins) and Hoskins' friend, Tony Lamanna (Lamanna). In that conversation Hoskins and Lamanna allegedly threatened to kill Linda.

Robert took the tape to his employer, Sheriff Chip Roos along with a written explanation of how he had obtained the recording. Sheriff Roos listened to the tape and informed the county prosecutor of its contents for the purpose of determining whether criminal action should be taken against Hoskins Hoskins learned of the recording in August 1993. She wrote a complaint letter to Sergeant Robert Lindstrom. Sergeant Lindstrom questioned Robert and Sheriff Roos about the recording. In his response letter to Hoskins, Sergeant Lindstrom indicated that Sheriff Roos knew nothing of the recording. Lindstrom added that Robert had assured him that "he [Robert] is not engaged in any activity such as recording telephone calls." Sheriff Roos later circulated a memorandum stating that it was department policy not to use scanners to monitor private telephone conversations. In March 1994, as part of an ongoing investigation into the Bonner County Sheriff's Department by the Idaho Bureau of Investigation (IBI), Special Investigator David Doorman interviewed Robert concerning the recording. In his written report, Doorman referred to the contents of the recording, specifically the alleged murder plot. Subsequently, a local radio station received a copy of the IBI report and used it to broadcast a news story involving the alleged conspiracy.

and Lamanna. The prosecutor advised Sheriff Roos that the recording was illegal and inadmissible as evidence of a crime. Sheriff Roos returned the tape to Robert along with a written warning stating that it was department policy not to "intrude improperly into the private lives of the citizens that we are here to protect."

Hoskins and Lamanna initially brought an action in federal district court against Robert and Linda (the Howards) alleging violations of Title III of the federal Omnibus Crime Control and Safe Streets Act of 1968 as amended by the Electronic Communications Privacy Act of 1986. Judge Boyle granted the Howards' motion for summary judgment dismissing the federal claim with prejudice. Hoskins and Lamanna then pursued this action in state court, filing a complaint on September 20, 1996, alleging invasion of privacy and violations of the Idaho Communications Security Act. They asked for separate monetary relief on each count. On January 2, 1997, Hoskins and Lamanna filed a partial motion for summary judgment on the statutory claim. The Howards responded with their own motion for summary judgment filed February 5. After hearing oral arguments on both motions on March 5, 1997, the district judge denied Hoskins and Lamanna's motion, granted the Howards' motion, and dismissed the case. The district judge ruled from the bench that the Idaho Communications Security Act cannot be construed to protect cordless telephone conversations under any circumstances. The judge also summarily ruled that no cause of action for invasion of privacy existed under the circumstances. This appeal ensued.


Our review of a district judge's ruling on a motion for summary judgment is the same as that required of the district judge when ruling on the motion. Friel v. Boise City Hous. Auth., 126 Idaho 484, 887 P.2d 29 (1994). Pursuant to I.R.C.P. 56(c), summary judgment must be entered when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." I.R.C.P. 56(c). As when the motion is initially considered by the trial court, this Court, on review, liberally construes the record in favor of the party opposing the motion and draws all reasonable inferences and conclusions in that party's favor. Farm Credit Bank of Spokane v. Stevenson, 125 Idaho 270, 869 P.2d 1365 (1994). If we determine reasonable people could reach different conclusions or draw conflicting inferences from the evidence, we will deny the motion. Id. at 272, 869 P.2d at 1367. However, if the evidence reveals no disputed issues of material fact, only a question of law remains, and this Court exercises free review. Id.


Hoskins and Lamanna argue that the district judge erred in granting summary judgment dismissing their claim under the ICSA. They argue that their cordless telephone conversation (1) "Wire Communication" means any communication made in whole or in part through the use of facilities for the transmission of communication by the aid of wire, cable, or other like connection between the point of origin and the point of reception, furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of intrastate, interstate or foreign communications.

was protected under the Act. Idaho Code § 18-6702 provides criminal penalties for any person who (1) willfully intercepts any wire or oral communication or (2) willfully discloses to any other person the contents of any wire or oral communication, knowing or having reason to know that the information was obtained in violation of the ICSA. Section 18-6709 provides a private right of action against individuals who violate the above provisions. A person can recover actual damages not less than liquidated damages computed at one hundred dollars per day of each violation or one thousand dollars, whichever is greater. The section also allows for punitive damages and recovery of reasonable attorney fees. I.C. § 18-6709. Idaho Code § 18-6701 provides the following definitions:

(2) "Oral communication" means any oral communication uttered by a person under circumstances justifying an expectation that said communication is not subject to interception.

(3) "Intercept" means the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.

(4) "Electronic, mechanical, or other device" means any device or apparatus which can be used to intercept a wire or oral communication other than:

(a) Any telephone or telegraph instrument, equipment or facility or any component thereof furnished to the subscriber or user by a communications common carrier in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business, or being used by a communications common carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties;

(b) A hearing aid or similar device being used to correct subnormal hearing to not better than normal.

I.C. § 18-6701.

The Howards admit that they used a radio scanner to listen to a cordless telephone conversation between Hoskins and Lamanna. They also admit to recording the conversation on a small tape recorder and giving that tape to Sheriff Roos. The scanner and tape recorder used to intercept and record the conversation fall under the category, "electronic, mechanical, or other device." Consequently, the Howards intercepted and disclosed Hoskins and Lamanna's cordless telephone conversation leaving only one issue in determining whether the district judge properly granted the Howards' motion for summary judgment on the ICSA claim. That is, whether cordless telephone conversations are protected wire or oral communications under the ICSA.

Hoskins and Lamanna argue that their conversation was a protected wire or oral communication, and that the district judge erred in finding that under no circumstances are cordless telephone communications protected under the ICSA. The ICSA protects wire communications. By statutory definition, wire communications include those which "in whole or in part" are transmitted through wire, cable, or other like connection of the state's telecommunication network. I.C. § 18-6701(1) (emphasis added). Only a few Idaho cases have addressed the ICSA. State v. Wilkins, 125 Idaho 215, 868 P.2d 1231 (1994); State v. Kluss, 125 Idaho 14, 867 P.2d 247 (Ct.App.1993); State v. Thompson, 114 Idaho 746, 760 P.2d 1162 (1988); State v. Thompson, 113 Idaho 466, 745 P.2d 1087 (Ct.App.1987). While these cases may provide guidance in interpreting the Act, not one addresses the issue of whether cordless telephone conversations are protected wire communications.

Federal statutes on the subject of electronic surveillance do not preempt all state regulation. They merely establish a Moreover, under this Court's rules of statutory construction, a...

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