State v. Brown

• Decision Date: 02 November 1987
• Docket Number: No. 16268,16268
• Citation: 745 P.2d 1101,113 Idaho 480
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Rene BROWN, Rebecca Nelson, a/k/a Rebecca Wolf, a/k/a Rebecca Lumen, Steve Wolf, Charlie Thompson, James Yarborough, a/k/a Yarb, and Monte Brandt, Defendants-Appellants, and Judy Thompson, Defendant.
• Court: Idaho Court of Appeals

Page 1101

745 P.2d 1101

113 Idaho 480

STATE of Idaho, Plaintiff-Respondent, v. Rene BROWN, Rebecca Nelson, a/k/a Rebecca Wolf, a/k/a Rebecca Lumen, Steve Wolf, Charlie Thompson, James Yarborough, a/k/a Yarb, and Monte Brandt, Defendants-Appellants, and Judy Thompson, Defendant.

No. 16268.

Court of Appeals of Idaho.

Nov. 2, 1987.

Petition for Review Denied Jan. 26, 1988.

Alan E. Trimming, Public Defender, by Amil N. Myshin, Jr. (argued), Boise, for defendants-appellants.

Jim Jones, Atty. Gen. by Lynn E. Thomas (argued), Sol. Gen., Boise, for plaintiff-respondent.

BURNETT, Judge.

This case is a companion to State v. Thompson, 113 Idaho 466, 745 P.2d 1087 (Ct.App.1987). The appellants have been accused of conspiring with each other and with Judy Thompson to smuggle marijuana into the Idaho State Correctional Institution (ISCI). Thompson and the codefendants moved to suppress evidence obtained from a wiretap on Thompson's telephone. The evidence was suppressed as to Thompson but not as to the codefendants. The district court also denied a motion by the codefendants to dismiss the information for failure to state an offense under Idaho law. The court's rulings produced an interlocutory appeal by the state in the Thompson case and an interlocutory appeal by the codefendants in this case.

The instant appeal raises four principal questions: (1) Do these codefendants have standing to challenge the use of a pen register that generated information for probable cause to place the wiretap on Thompson's telephone? (2) Did the wiretap comport with the requirements of Idaho's electronic surveillance statutes? (3) Was the evidence presented at the preliminary hearing sufficient to hold defendants to answer in the district court? (4) Is it necessary to allege and to prove an overt act in order to obtain a conviction for conspiracy to violate the Uniform Controlled Substances Act? For reasons explained below, we uphold the district court's rulings on these questions.

As explained in our Thompson decision, the codefendants here were charged with conspiring to violate the Uniform Controlled Substances Act, I.C. § 37-2732(f). The prosecutor's information alleged that the defendants had conspired to deliver marijuana to inmates at the ISCI. The evidence supporting this allegation was obtained largely from a wiretap on Judy Thompson's telephone. The codefendants, consisting of four prisoners and two women who visited them, became implicated in the conspiracy when the wiretap intercepted their conversations with Thompson about drug trafficking. Following the arrests, officers who had recorded the incriminating conversations interviewed each of the defendants and positively matched their voices with the voices recorded. Subsequently, a seven-day preliminary hearing was held. The magistrate found probable cause to hold all defendants to answer in the district court. Before trial the defendants submitted their motion to suppress evidence and to dismiss the prosecutor's information. The motion was denied, leading to this appeal.

I

The first issue is the appellants' right to challenge a pen register installed prior to the wiretap on Thompson's telephone. Our decision in Thompson contains a full statement of the facts framing this issue. They need not be reiterated here. It suffices to say that in Thompson we upheld the validity of the pen register under then-existing statutes, under the Fourth Amendment, and under the Idaho Supreme Court's extant view of Article 1, § 17, of the Idaho Constitution. However, we invited our Supreme Court to reexamine the applicability of the state constitution. Unless the Supreme Court accepts this invitation, and does so in Thompson itself, the standing question in the present case will be moot. Nevertheless, in order to dispose completely of the appellants' argument, we will address the standing issue on its merits.

At the outset, we observe that none of the information gathered from the pen register, and used to support the application for a wiretap, concerned any of these appellants. They were not parties to any of the calls dialed from Thompson's phone and mentioned in the police affidavit for the wiretap. The only calls mentioned in the affidavit were made to Judy Thompson's purported supplier in Twin Falls and to two other women who were suspected of visiting inmates at the prison. Thus, it appears that appellants' argument boils down to a claim of vicarious standing. They wish to reach back and strike evidence obtained in a manner that arguably violated the constitutional rights of someone else--but which in no way implicated them in criminal activity. They argue that because the pen register data was a critical element in the calculus of probable cause for issuance of the wiretap order, and because the wiretap did produce incriminating evidence against them, they have standing to challenge the pen register. We disagree.

The Fourth Amendment, and its analogue in Article 1, § 17, of the Idaho Constitution, do not apply to all searches and seizures. The scope of protection is determined by the privacy interests at stake. In this respect the state and federal constitutional protections are coextensive. Consequently, our discussion of the Fourth Amendment applies equally to Article 1, § 17, on this point.

The traditional rules of standing no longer adequately frame the proper inquiry into whether an accused's Fourth Amendment rights have been violated by a search. The modern approach allows a search to be challenged when a personal interest under the Fourth Amendment is asserted and a legitimate expectation of privacy is shown to exist in the area searched or the items seized. State v. Holman, 109 Idaho 382, 707 P.2d 493 (Ct.App.1985). Cf. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). A court may not exclude evidence under the Fourth Amendment unless it finds that an unlawful search or seizure violated the defendant's own constitutional rights. United States v. Payner, 447 U.S. 727, 100 S.Ct. 2439, 65 L.Ed.2d 468 (1980). The defendant's Fourth Amendment rights are violated only when the challenged conduct invaded his own legitimate expectation of privacy rather than that of a third party. Id.; State v. Bottelson, 102 Idaho 90, 625 P.2d 1093 (1981). Coconspirators and codefendants are accorded no special standing under the Constitution.

Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969), illustrates these principles. In Alderman the United States Supreme Court applied the privacy-based concept of standing to evidence obtained by electronic surveillance. The Court concluded that a defendant's personal Fourth Amendment rights would be implicated if the government overheard conversations of the defendant himself or conversations occurring on his premises, whether or not he was present or participated in those conversations.

We next consider the question of statutory standing. Alderman is consistent with Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2518(10)(a), which allows only an "aggrieved person" to move to suppress the contents of communications intercepted in violation of the Act. A similar provision is contained in the Idaho electronic surveillance statutes, collectively known as the Communications Security Act and codified at I.C. §§ 18-6701 to -6725. The Idaho Act is derived directly from the federal statutory scheme. As we noted in Thompson, pen registers were not covered by the state and federal statutes in existence at times pertinent to this case. However, we believe that case law on the question of standing under the federal statute, and under similar statutes in other states, is instructive here.

Various federal and state courts have discussed the standing question under their respective electronic surveillance statutes. In cases analogous to the present situation, defendants implicated by a wiretap that was lawful as to them have attacked previous wiretaps that provided the information necessary to obtain authorization for the wiretaps that produced the incriminating information. ¹ In these cases, none of the defendants seeking to suppress evidence obtained from the prior wiretaps had been intercepted by that initial surveillance. The courts addressing this situation have held with virtual uniformity that a person intercepted by a second or subsequent wiretap has no standing to attack an earlier wiretap on grounds derived exclusively from alleged defects in the earlier wiretap as to which he was not an "aggrieved person." See, e.g., United States v. Civella, 648 F.2d 1167 (8th Cir.), cert. denied, 454 U.S. 867, 102 S.Ct. 330, 70 L.Ed.2d 168 (1981); United States v. Wright, 524 F.2d 1100 (2d Cir.1975); United States v. Caruso, 415 F.Supp. 847 (S.D.N.Y.1976), affirmed without opinion, 553 F.2d 94 (2d Cir.1977); State v. Olea, 139 Ariz. 280, 678 P.2d 465 (App.1983). ²

Courts that have addressed standing in the specific context of pen registers have reached similar conclusions, regardless of whether the pen register has been covered by a jurisdiction's particular electronic surveillance statute. Thus, the courts have held that only the caller, the person called and those with a possessory interest in the telephone have objectively reasonable expectations of privacy in information disclosed by a pen register. Ellis v. State, 256 Ga. 751, 353 S.E.2d 19 (1987) (pen register covered by electronic surveillance statute); People v. Meticheccia, 83 Misc.2d 241, 371 N.Y.S.2d 805 (N.Y.City Ct.1975), reversed on other grounds, 91 Misc.2d 129, 397 N.Y.S.2d 514 (N.Y.1977) (only those with proprietary interest in telephone have standing to challenge pen register); Commonwealth v. Melilli, 361 Pa.Super. 429, 522 A.2d 1107 (1987); Commonwealth v. Beauford, 327 Pa.Super. 253, 475 A.2d 783 (1984).

We agree with this reasoning. Accordingly, because none of the appellants here was a party to any of the...