State v. Dwyer

• Decision Date: 17 August 1978
• Docket Number: CA-CR,No. 1,1
• Citation: 120 Ariz. 291,585 P.2d 900
• Parties: STATE of Arizona, Appellant, v. Edward DWYER, Appellee. 2734.
• Court: Arizona Court of Appeals

Page 900

585 P.2d 900

120 Ariz. 291

STATE of Arizona, Appellant, v. Edward DWYER, Appellee.

No. 1 CA-CR 2734.

Court of Appeals of Arizona, Division 1, Department C.

Aug. 17, 1978.

Rehearing Denied Oct. 18, 1978.

Charles F. Hyder, Maricopa County Atty. by George B. Mount, Deputy County Atty., Phoenix, for appellant

Hoffman, Anderson & Brown, P. C. by David S. Hoffman, Tucson, for appellee.

OPINION

DONOFRIO, Judge.

The State appeals the granting of appellee Edward Dwyer's motion to suppress conversations between him and Mrs. Sandy Austin overheard by telephone operators in Bisbee, Arizona and all evidence derived therefrom. We affirm the trial court's granting of the motion to suppress.

On the evening of May 6, 1976 appellee called the operator in Bisbee, Arizona to place an emergency phone call. The operator he reached was Ms. Mary Ida Silva. Appellee gave Ms. Silva the number he wanted to reach, told her it was an emergency call and asked her to please interrupt. Ms. Silva dialed the number appellee wished to reach and discovered that it was busy. She then went on what is called a verifying trunk line and heard Mrs. Sandy Austin talking to another woman. Ms. Silva was acquainted with Mrs. Austin and identified her by her voice immediately upon breaking in. She interrupted and told Mrs. Austin that she had an emergency call. Mrs. Austin said she would hang up in a minute. Ms. Silva left the verifying trunk line connected to giver her light supervision which would enable her to determine when the call was completed without having to listen to the conversation. As soon as the light went out she dialed Mrs. Austin's number to connect her with Mr. Dwyer but it was busy. About that time Mrs. Wilma Atkinson, another operator told her that she had Mrs. Austin on another line. Ms. Silva therefore connected Mr. Dwyer to Mrs. Austin on the other line. Pursuant to normal telephone company procedures she listened on the connection briefly to determine that it had been properly connected and to determine that it was actually an emergency call. Ms. Silva then cut off and began picking up the rest of her calls.

After the connection was made between Mrs. Austin and appellee Mrs. Atkinson was told by one of the other operators to "Go into a Bisbee light." She plugged in and heard the telephone conversation between appellee and Mrs. Austin. She listened for approximately 15 minutes. Several other operators were also listening in on the telephone conversation between appellee and Mrs. Austin. On the basis of what the operators overheard they placed an anonymous phone call to the Scottsdale Police Department warning them that Mrs. Austin's husband, Jesse Austin, who was going to be released from the State Hospital, was in danger. The police made no follow-up on this call.

On May 7, 1976, one day after the conversations were overheard, Jesse Austin was released from the State Hospital. On the morning of May 8, 1976 Jesse Austin was found dead, his body bearing approximately 28 stab wounds. On May 9, 1976 one of the telephone operators related to her husband, Douglas Knipp, who was at the time a lieutenant in the Cochise County Sheriff's Department, the nature of the conversations which had been overheard by several of the operators on May 6. The following day Lt. Knipp called the Scottsdale Police Department with the information he had acquired from his wife. Owing largely to information developed from the contents of these conversations the police arrested Mrs. Austin, appellee and Anthony Ridings. After their arrests the police were able to obtain incriminating statements from both Mr. Ridings and Mrs. Austin. These statements also implicated appellee. On September 30, 1976 appellee was named in a two-count indictment charging him with first degree murder and conspiracy to commit murder. In their opening brief the State forthrightly states:

"Aside from corroborating circumstancial evidence, the major portions of the State's case are the conversations overheard by the Bisbee operators, the statement made by Sandra Austin, and the statement of Anthony Ridings."

After conducting an evidentiary hearing and considering the arguments and citations supplied by the parties the court suppressed the phone conversations and the statements of Sandra Austin and Anthony Ridings. The court ruled that the telephone operators had, with the exception of Ms. Silva's initial brief verification of the connection, illegally intercepted the telephone conversation between Mrs. Austin and appellee. She therefore imposed the exclusionary rule provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S. Code §§ 2510-2520.

The statutory exclusionary rule provision of the act is as follows:

"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." 18 U.S.C. § 2515.

The Senate Report on this section, see 1968 United States Code Congressional and Administrative News, 90th Congress, 2nd Session at 2112, 2184-2185, states that this section must be read in conjunction with the provisions of 18 U.S.C. § 2518(10)(a):

(10)(a) "Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that

(i) the communication was unlawfully intercepted; . . . "

The unlawful interception of wire or oral communications is prescribed in 18 U.S.C. § 2511(1)(a):

"(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; * * * shall be fined not more than $10,000 or imprisoned not more than 5 years, or both."

Several of the terms used in 18 U.S.C. § 2511(1)(a) are defined in 18 U.S.C. § 2510. "Person" is defined in 18 U.S.C. § 2510(6) to mean "any employee, or agent of the United States or any State or political subdivision thereof, of any individual, partnership, association, joint stock company, trust, or corporation." "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." 18 U.S.C. § 2510(1).

"Intercept" is defined to mean "Aural acquisition of the contents of any wire or oral communication through the use of any electronic mechanical, or other device." The statute also defines "electronic, mechanical or other device" to mean:

"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." 18 U.S.C. § 2510(5)(a).

The only lawful intercepts allowed by the statutes are those obtained pursuant to an application to a federal judge by the Attorney General or his specially designated Assistant Attorney General or, at the state level, pursuant to an application by the principal prosecuting attorney of a state or a political subdivision thereof to a state court judge under a state statute authorizing such application. 18 U.S.C. § 2516(1) and (2). These requirements are strictly enforced. United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). There are elaborate requirements for the form and nature of the application set forth in 18 U.S.C. § 2518. There is also a limited authorization for intercepts by phone company personnel:

"(2)(a) It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of any communication common carrier, whose facilities are used in the transmission of a wire communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the carrier of such communication: Provided, That said communication common carriers shall not utilize service observing or random monitoring except for mechanical or service quality control checks." (Emphasis theirs) 18 U.S.C. § 2511(2)(a).

The cases arising under this exception primarily involve internal phone company investigations of the users of "blue boxes" designed to enable callers to make long distance calls without paying for them. See United States v. Auler, 539 F.2d 642 (7th Cir. 1976), (cert. denied 429 U.S. 1104, 97 S.Ct. 1132, 51 L.Ed.2d 555); United States v. Goldstein, 532 F.2d 1305 (9th Cir. 1976), (cert. denied 429 U.S. 960, 97 S.Ct. 384, 50 L.Ed.2d 327); United States v. Clegg, 509 F.2d 605 (5th Cir. 1975).

It is readily apparent that the Bisbee telephone operators were persons within the meaning of the statute. T...