State v. Geraldo, 80-1677

• Decision Date: 16 December 1981
• Docket Number: No. 80-1677,80-1677
• Citation: 68 Ohio St.2d 120,429 N.E.2d 141
• Parties: , 22 O.O.3d 366 The STATE of Ohio, Appellee, v. GERALDO, Appellant.
• Court: Ohio Supreme Court

Page 120

68 Ohio St.2d 120

429 N.E.2d 141, 22 O.O.3d 366

The STATE of Ohio, Appellee, v. GERALDO, Appellant.

No. 80-1677.

Supreme Court of Ohio.

Dec. 16, 1981.

Syllabus by the Court

Neither the federal constitution nor state law requires the suppression of evidence obtained by the warrantless recording of a telephone conversation between a consenting police informant and a non-consenting defendant. (United States v. White (1971), 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 followed.)

The facts in this appeal are uncontroverted. On May 24, 1978, appellant, Samuel Geraldo, received a phone call from one Hugh Thom, who was acting as a police informant. Thom had been arrested in connection with the theft of tractor trailers during the month of May. He made a statement implicating appellant and certain other individuals. The police sergeant who took the statement doubted Thom, whereupon, Thom offered to verify his story by calling appellant. Thom, in the presence of the sergeant, then phoned appellant. The entire conversation was tape recorded by an audio pickup device that the sergeant had attached to the phone used by Thom. It is undisputed that Thom voluntarily consented to the recording of the conversation, that appellant was unaware of the recording, and that the sergeant had not obtained a search warrant prior to the recording.

In November 1978, the Lucas County Grand Jury returned a multiple count indictment against appellant, charging him, inter alia, with engaging in organized crime, in violation of R.C. 2923.04(A)(5), four counts of grand theft, in violation of R.C. 2913.02(A), and three counts of receiving stolen property, in violation of R.C. 2913.51.

On April 23, 1979, appellant filed a "(m)otion to suppress statements secured through electronic surveillance." A hearing was held on the motion to suppress in the Court of Common Pleas of Lucas County, and after oral arguments and the submission of briefs, the court granted appellant's motion to suppress. The suppression order forbade the introduction of the tapes of the conversation and further prohibited any testimony by Thom and the detective regarding the contents of the Thom-Geraldo communication.

The state appealed this ruling to the Court of Appeals, which reversed the trial court in a split decision. The majority below held that "(i)n the absence of explicit state law or a constitutional provision, we find that there is no requirement that police obtain a warrant before police can record or transmit a conversation between a criminal defendant and a police agent." Judge Connors in a lengthy concurring and dissenting opinion took the position that "(u)nder the circumstances of this case and in most consent surveillance cases, the Art. I § 14 rights of the citizens must be protected by the acquisition of a search warrant prior to the seizure of oral communications" and would have upheld the suppression of the tape recordings. Judge Connors agreed with the majority that the trial court erred in suppressing Thom's testimony based on his independent recollection of the contents of his conversation with appellant.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

Anthony G. Pizza, Pros. Atty., and James D. Bates, Asst. Pros. Atty., for appellee.

Hayward, Cooper, Straub, Walinski & Cramer, Richard S. Walinski, Robert Z. Kaplan and Jon D. Richardson, Toledo, for appellant.

SWEENEY, Justice.

The question presented in the instant appeal is whether the federal constitution or state law requires the suppression of evidence obtained by the warrantless recording of a telephone conversation between a consenting police informant and a non-consenting defendant.

I.

Appellant seeks to avoid the rule expressed in the plurality opinion of the United States Supreme Court in United States v. White (1971), 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453, and subsequently ratified by a majority of that court in United States v. Caceres (1979), 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 by advancing a theory which posits that the scope of Fourth Amendment rights is to be ascertained with reference to state law. ¹ In White, which followed the seminal wiretapping case of Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 Justice White, writing for three other members of the court, stated the following, 409 U.S. at pages 751-752, 91 S.Ct. at pages 1125-1126:

"Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter's Fourth Amendment rights. Hoffa v. United States, 385 U.S. (293) at 300-303 (87 S.Ct. 408, at 412-414, 17 L.Ed.2d 374). For constitutional purposes, no different result is required if the agent, instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, Lopez v. United States, supra, ((1963), 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462), (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v. United States, supra ((1952), 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270). If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant's constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.

"Our problem is not what the privacy expectations of particular defendants in particular situations may be or the extent to which they may in fact have relied on the discretion of their companions. Very probably, individual defendants neither know nor suspect that their colleagues have gone or will go to the police or are carrying recorders or transmitters. Otherwise, conversation would cease and our problem with these encounters would be nonexistent or far different from those now before us. Our problem, * * * is what expectations of privacy are constitutionally 'justifiable'-what expectations the Fourth Amendment will protect in the absence of a warrant. So far, the law permits the frustration of actual expectations of privacy by permitting authorities to use the testimony of those associates who for one reason or another have determined to turn to the police, as well as by authorizing the use of informants in the manner exemplified by Hoffa and * * * (Lewis v. United States (1966), 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312). If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State's case. See Lopez v. United States, 373 U.S. 427 (, 83 S.Ct. 1381, 10 L.Ed.2d 462) (1963)." ²

Notwithstanding White and the clear statement in United States v. Careres, supra, 440 U.S. at page 744, 99 S.Ct. at page 1467, that "(n)either the Constitution nor any Act of Congress requires that official approval be secured before conversations are overheard or recorded by Government agents with the consent of one of the conversants," ³ appellant contends that "(w)here a person has a subjective expectation of privacy in an area that the state has rendered private as a matter of state law, the person has a reasonable and legitimate expectation of privacy entitled to Fourth Amendment protection."

The essence of appellant's argument is that inasmuch as the privacy rights guaranteed by the Fourth Amendment are but a subset of those liberty interests protected by the Due Process Clause of the Fourteenth Amendment, it is entirely appropriate, and indeed necessary, for a court to look to state law to determine the scope of constitutionally protected Fourth Amendment interests in precisely the same way courts refer to state law to assess claims alleging that protected interests have been abridged in violation of the Fourteenth Amendment. See, e.g., Bd. of Regents v. Roth (1972), 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548. Moreover, according to appellant, the court in fn. 1 of White left open the question of whether state law can create reasonable expectations of privacy entitled to constitutional protection. ⁴ The footnote states, at page 747, 91 S.Ct. at page 1123, in relevant part: " * * * (W)e do not consider White's claim that the Government's actions violated state law."

The above language provides the underpinning for appellant's elaborate Fourth Amendment theory and, necessarily, he ascribes to it great significance. As we read it, however, fn. 1 in White merely stands for the oft-stated proposition that "a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards." (Emphasis in original.) Oregon v. Hass (1975), 420 U.S. 714, at page 719, 95 S.Ct. 1215, at page 1219, 43 L.Ed.2d 570. See, generally, Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489. We glean no intent on the part of the United States Supreme Court in White to constitutionalize state law in order to determine what is reasonable for purposes of the Fourth Amendment. Thus, as a matter of federal constitutional law, after the decision in White it is irrelevant that the police conduct in the instant case may not have comported with R.C. 4931.28 (wiretapping prohibited), or Ohio Bell Telephone Company Exchange Tariff Section 20, Order No. 75-725-TP-ATA (1976) (beeper required...