State v. McVeigh
| Decision Date | 16 February 1993 |
| Docket Number | 14400,Nos. 14399,s. 14399 |
| Citation | 620 A.2d 133,224 Conn. 593 |
| Court | Connecticut Supreme Court |
| Parties | STATE of Connecticut v. Mary McVEIGH. STATE of Connecticut v. William McVEIGH. |
Steven D. Ecker, New Haven, with whom were Richard S. Cramer, Wethersfield, and, on the brief, Ira B. Grudberg, New Haven, and Martha Stone, Hartford, for appellants (defendant in each case).
Timothy J. Sugrue, Asst. State's Atty., with whom were Steven M. Sellers, Asst. State's Atty., and, on the brief, John T. Redway, State's Atty., and Bernadette Conway, Asst. State's Atty., for appellee (state).
Before PETERS, C.J., and CALLAHAN, BORDEN, NORCOTT and KATZ, JJ.
The dispositive issue in these consolidated appeals is whether a communication over the radio wave portion of a cordless telephone is a "[w]ire communication" as defined in General Statutes § 54-41a(1), 1 which is part of our judicially supervised wiretap act (wiretap act). General Statutes §§ 54-41a through 54-41t. The defendants, Mary McVeigh and William McVeigh, appeal 2 from the judgments of conviction, following the denial of their motions to suppress and following their conditional pleas of nolo contendere pursuant to General Statutes § 54-94a, 3 of possession of cocaine with intent to sell in violation of General Statutes § 21a-277(a), and possession of marihuana in violation of General Statutes § 21a-279(b). 4
The defendants claim that the trial court improperly concluded that their conversations over a cordless telephone in their home were: (1) not protected by the provisions of the wiretap act because they were not wire communications within the meaning of the act; and (2) not protected by the fourth amendment to the United States constitution or by article first, § 7 of the Connecticut constitution. 5 Without reaching the constitutional issues, we conclude that the communications at issue were "wire communications" within the meaning of § 54-41a(1), and that the trial court, therefore, should have granted the defendants' motions to suppress. We therefore reverse the judgment of the trial court.
In the trial court, the defendants moved to suppress the contents of their communications made over their cordless telephone, and all the evidence derived therefrom. The bases of the motions were that the electronic interception by the police of the defendants' cordless telephone conversations: (1) violated the wiretap act; and (2) violated their constitutional rights under the fourth and fourteenth amendments to the United States constitution and article first, § 7 of the Connecticut constitution.
The trial court found the following facts: The defendants lived at a condominium complex in Cromwell. On February 22, 1990, the Cromwell police department began to investigate the defendants as a result of information furnished to the police by a neighbor of the defendants. The neighbor told the police that, by means of a device known as a "scanner," he had overheard cordless telephone conversations of the defendants that indicated they were involved in drug dealing.
As a result of this information, the police decided to monitor the incoming and outgoing cordless telephone calls of the defendants by means of a "Bearcat Scanner" and a voice activated tape recorder, stationed within the neighbor's apartment. The tape recorder was connected to the scanner, so that whenever a voice came over the scanner it would be automatically tape-recorded.
Between February 23 and March 3, 1990, the police, without having secured a judicial order pursuant to the wiretap act, monitored and tape-recorded the defendants' cordless telephone conversations, using the scanner and the tape recorder. In addition, the police conducted visual surveillance of the defendants' condominium. On March 2, 1990, the police, using information gained from their monitoring of the defendants' cordless telephone conversations, stopped a Chevrolet van being driven by William McVeigh from the condominium complex, arrested him and seized drugs from his person. Thereafter, the police secured a search and seizure warrant for the defendants' condominium and for a certain automobile. Execution of this warrant yielded more drugs from the condominium and from the automobile.
The trial court also found the following undisputed facts regarding the operation of cordless telephones. A cordless telephone operates as an FM 6 two-way radio. The handset transmits an FM radio signal to the base unit, and the base unit transmits an FM radio signal to the handset. Both the handset and the base unit have antennae. Transmission of the human voice occurs through these FM radio waves. When a telephone call is initiated from the handset of a cordless telephone, it travels from the handset to the base unit via radio waves; from the base unit it travels through the telephone lines. Thus, the telephone lines are used only after a message leaves the base unit.
Although the trial court did not specifically make findings regarding incoming telephone calls, the same physical principles apply to such calls. If a telephone call is made to a number serviced by a cordless telephone and the cordless telephone is used to receive that call, the message travels through the telephone lines to the base unit; from there it travels via FM radio waves to the handset.
It is also undisputed that, except for the transmission between the base unit and the handset, a cordless telephone operates essentially like an ordinary wired telephone. 7 The base unit is connected to the telephone line by a wire that runs from the base unit and plugs into an ordinary telephone jack. That wire usually is furnished with the purchase of the cordless telephone. A person initiating a telephone call on a cordless telephone dials (or, more accurately, enters) a telephone number, either on the handset or the base unit; the message travels from the handset to the base unit, from the base unit to the telephone jack through the wire connecting the base unit and the jack, and from there through the telephone lines. Similarly, if a person calls a telephone number that is serviced, in whole or in part, by a cordless telephone, the message travels from the calling telephone through the telephone lines to the jack, from the jack to the base unit through the wire connected to the base unit, and from there to the handset via radio waves. Thus, whereas in an ordinary wired telephone set the message travels between the base unit and the handset by way of the wire that connects the two, in a cordless telephone set the message travels between the base unit and the handset by way of FM radio waves.
The trial court found that FM radio waves travel at various frequencies ranging from forty-six to forty-nine megahertz. 8 Cordless telephones are preset by their manufacturers to given frequencies within this range, and are also equipped with digital security codes in order to allow an owner to alter the frequency slightly so as to avoid the frequency being received by a nearby cordless telephone that is set to the same frequency. 9 The trial court also found that a cordless telephone has a maximum range of approximately 1000 feet. 10 The trial court further found that any person with an FM receiver tuned to the same frequency as a particular cordless telephone can overhear telephone calls going out or coming in over that cordless telephone if the receiver is within the range of that telephone. A "Bearcat Scanner," which was used by the police in this case, is an FM radio that can be programmed to receive almost any FM frequency. Anyone can purchase such a scanner. 11 The interception of a cordless telephone conversation by such a scanner occurs during the radio wave transmission portion of the conversation, and does not involve that portion of the transmission that travels over the telephone line.
Cordless telephones are stamped with a warning on the bottom of the base unit. The warning on the bottom of the defendants' base unit stated:
Finally, although there was no specific evidence produced in this regard, there is no dispute that cordless telephones are in widespread use today. The defendants bring to our attention, without contradiction by the state, that approximately forty-three million cordless telephones were sold between 1988 and 1991, that the industry estimated sales of nearly sixteen million units in 1992, and that it also estimates that 41 percent of the approximately ninety-five million households in the nation have cordless telephones.
The trial court ruled that the interception of the defendants' conversations over their cordless telephone: (1) did not constitute interceptions of wire communications within the meaning of § 54-41a(1) and, therefore, the defendants' communications had not been "unlawfully intercepted" under General Statutes § 54-41m; 13 and (2) did not violate the defendants' constitutional rights. Accordingly, the court denied the defendants' motions to suppress. Following the defendants' conditional pleas of nolo contendere, the court rendered judgments of conviction in both cases. These appeals followed.
The defendants claim, inter alia, that the trial court improperly denied their motions to suppress because the monitoring and tape-recording of their cordless telephone conversations, without a judicial wiretap order, was an unlawful interception under our wiretap act. We agree.
We begin our analysis with some brief history. In 1967, the United States Supreme Court extended the protection of the fourth amendment to electronic eavesdropping of oral conversations. Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967). Later the same year, the court held that government activity "in electronically...
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...Supreme Court has noted that telephone equipment bought from other vendors satisfies the requirement. See State v. McVeigh, 224 Conn. 593, 617-18, 620 A.2d 133 (1993) (holding that § 54-41a(1) of the State Wiretap Act, which requires that applicable telephone equipment be "furnished or oper......
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...Lauer v. Zoning Commission, 220 Conn. 455, 460, 600 A.2d 310 (1991)"; (internal quotation marks omitted) State v. McVeigh, 224 Conn. 593, 607, 620 A.2d 133 (1993); and to the jurisprudential background of the statute. Federal Deposit Ins. Corp. v. Hillcrest Associates, 233 Conn. 153, 164, 6......
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