Rickenbaker v. Rickenbaker

• Decision Date: 14 July 1976
• Docket Number: No. 95,95
• Citation: 226 S.E.2d 347,290 N.C. 373
• Court: North Carolina Supreme Court
• Parties: Angelus Chambers RICKENBAKER v. Thomas C. RICKENBAKER.

Page 347

226 S.E.2d 347

290 N.C. 373

Angelus Chambers RICKENBAKER v. Thomas C. RICKENBAKER.

No. 95.

Supreme Court of North Carolina.

July 14, 1976.

Warren C. Stack and Richard D. Stephens, Charlotte, for defendant-appellant.

DeLaney, Millette, DeArmon & McKnight, P.A. by Ernest S. DeLaney, Jr., and Ernest S. DeLaney, III, Charlotte, for plaintiff.

BRANCH, Justice.

The sole question presented by this appeal is whether the Court of Appeals erred in affirming that portion of the trial court's order which suppressed all evidence resulting from the interception of the plaintiff's telephone communications.

18 U.S.C. § 2511, in part, provides:

(1) Except as otherwise specifically provided in this chapter any person who--

(a) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire or oral communication;

(b) willfully uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when--

(i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communications; or . . .

* * *

* * *

shall be fined not more than $10,000 or imprisoned not more than five years, or both.

In order to intelligently follow the provisions of the pertinent statutes, we turn to 18 U.S.C. § 2510 for relevant definitions:

As used in this chapter--

(1) 'wire communication' means any communication made in whole or in part through the use of facilities for the transmission of communications 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 interstate or foreign communications;

(2) 'oral communication' means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation;

(3) 'State' means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States;

(4) 'intercept' means the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.

(5) '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, (i) 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 (ii) 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;

The focal statute for our consideration is 18 U.S.C. § 2515 which provides:

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.

Defendant, relying on the language in 18 U.S.C. § 2510(5)(a), contends that Title III does not apply to the facts of this case because the communications were intercepted by the use of an extension telephone furnished by a communications common carrier which was being used in the ordinary course of his business. In support of this argument, he relies upon the case of United States v. Christman, D.C., 375 F.Supp. 1354. In Christman, the Regional Chief of Security for a department store chain was charged with unlawful interception of telephone conversations. He had received reports concerning certain improprieties in the shoe department of a particular store. This store operated a private telephone system to be used for calls within the store or to other stores in the same chain. Defendant arranged for an extension to be installed to the shoe department extension and thereby intercepted and recorded certain conversations. The United States District Court granted the defendant's motion for acquittal and noted that Congress intended to apply criminal sanctions to limited types of interceptions and communications and that a privately operated intercommunication system not using the facilities of a common carrier is not within the scope of the statute. 18 U.S.C. § 2510(2). Further, the court held that § 2511(2)(a)(i) allowed the interception of 'communications in the normal course of employment 'while engaged in any activity which is a necessary incident of the rendition of (the) service or to the protection of the rights or property of the carrier of such communication . . ..'' The court reasoned that employees misusing a private telephone system are not entitled to any reasonable expectation that the conversations were not subject to interception. 18 U.S.C. § 2510(2). Obviously instant case is distinguishable from Christman since we are not here concerned with the interception of communications by a common carrier engaged in an activity which was necessary or incidental to the rendition of the services by the common carrier or for the protection of its rights.

The 10th Circuit Court of Appeals has flatly held as a matter of law that a telephone extension used without authorization or consent to surreptitiously record a private telephone conversation is not being used in the ordinary course of business. United States v. Harpel, 10 Cir., 493 F.2d 346; Accord: Gerrard v. Blackman, D.C., 401 F.Supp. 1189.

In the case before us, defendant testified that he used the telephone to obtain information as to possible business calls. However, the circumstances surrounding the facts of this case rebut this testimony. The telephone was placed in a locked closet in defendant's office without the knowledge or consent of plaintiff. A sound-activated recorder was installed by defendant and not by the communications common carrier in the ordinary course of its business. Neither defendant nor his employees placed calls or directly received incoming calls on the telephone. Under these circumstances, we hold that the Court of Appeals correctly decided that the trial judge's finding that defendant was not using the extension telephone in the ordinary course of business was supported by ample evidence.

Defendant, relying upon the case of Simpson v. Simpson, 5 Cir., 490 F.2d 803, strongly argues that 18 U.S.C. § 2511, Et seq., does not prohibit a spouse from intercepting telephone communication from the other spouse. In Simpson, the husband and wife were residing in the marital home and the husband, who had misgivings as to his wife's fidelity, attached a device for tapping and recording conversations to the phone lines within the home. He thereby intercepted conversations between his wife and another man. The tapes were played to several persons including a lawyer on whose advice the wife agreed to an uncontested divorce. Thereafter the wife instituted action in the United States District Court for civil damages against her former husband pursuant to 18 U.S.C. § 2520. The District Court held that the interception of messages in the home by the husband through the use of electronic equipment of conversations between his wife and other persons did not come within the statutory proscription of Title III of the Omnibus Crime Control and Safe Street Act of 1968. In affirming the decision of the District Court, the 5th Circuit Court of Appeals, after initially stating that the question before it was one of statutory construction, proceeded to review the legislative history of the act in an attempt to find the legislative intent in enacting the statutes. The court initially conceded that the naked language of Title III, because of its inclusiveness, reached the case. In the next sentence, however, the court stated that in its opinion Congress did not intend such farreaching results because the statute, the committee reports and the legislative hearings did not reveal a positive intent to reach so far. Further, after observing that Title III is a part of a crime control act which sought to bolster the effectiveness of law enforcement officers, the court stated:

Be this as...