U.S. v. Auler

• Decision Date: 12 August 1976
• Docket Number: No. 75-1055,75-1055
• Citation: 539 F.2d 642
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raymond AULER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 642

539 F.2d 642

UNITED STATES of America, Plaintiff-Appellee, v. Raymond AULER, Defendant-Appellant.

No. 75-1055.

United States Court of Appeals Seventh Circuit.

Argued June 10, 1975.

Decided Aug. 12, 1976.

James A. Walrath, Milwaukee, Wis., for defendant-appellant.

David C. Mebane, U. S. Atty., John R. Byrnes, Asst. U. S. Atty., Madison, Wis., for plaintiff-appellee.

Before CLARK, Associate Justice (Retired) ^*, FAIRCHILD, Chief Judge, and PELL, Circuit Judge.

FAIRCHILD, Chief Judge.

In this appeal we are once again asked to consider the scope of the authority of a common carrier to intercept and disclose wire communications, 18 U.S.C. § 2511(2)(a)(i), ¹ in the context of the prohibition against the unauthorized publication or use of interstate wire communications, 47 U.S.C. § 605. ² The appellant, Raymond Auler, was convicted for violating the Wire Fraud Statute, 18 U.S.C. § 1343, ³ and sentenced to six months imprisonment. He argues that several grounds support a reversal: (1) the disclosure of wire communications by General Telephone to the F.B.I. violated 47 U.S.C. § 605; (2) the security agents of General Telephone violated the requirements of the Fourth Amendment; (3) the surveillance conducted by the General Telephone violated the Wisconsin Electronic Surveillance Law; and (4) the indictment failed to state an offense under 18 U.S.C. § 1343. We are, however, unable to find that any of these contentions require a reversal, and therefore, we affirm the decision of the district court.

I

During June, 1973 a security supervisor for the Wisconsin Telephone Company, Bernard G. Schlimgen, attached a 2600 cycle detecting device to the telephone line serving Auler's residence in Milwaukee. Schlimgen believed that there was in use a device known as a "blue box" to fraudulently place toll-free long distance calls. The blue box is used to electronically bypass the telephone company's billing equipment. After engaging a wide area telephone service system (WATS), the blue box emits a 2600 cycle tone which allows the user to remain within the toll system after the WATS line has been disconnected. Subsequently, the user "key pulses" through the blue box a series of multifrequency tones, comparable to those normally generated by a long distance call. The telephone company's billing equipment only records the original toll-free call; consequently, the user is not charged for the call made with the blue box.

The 2600 cycle detector indicated that an out of state call was made by use of the blue box technique. Schlimgen informed Roger Davis, then a Special Agent for the F.B.I., of this suspected violation of the Wire Fraud Statute. Davis obtained a warrant, and accompanied by Schlimgen, searched Auler's residence. They did not find a blue box, but learned from Auler's daughter that Auler had been present earlier, but was moving to Wisconsin Dells.

On June 21, 1973, Schlimgen contacted Gary Mattila, a security agent for the General Telephone Company, the company which provides telephone service for the Wisconsin Dells area, concerning Auler's alleged use of the blue box. Mattila discovered that Auler had two telephone listings at a Wisconsin Dells residence. He further learned from another Wisconsin Telephone Company security agent that Auler was a suspected blue box user. This information was obtained by examining a computer printout list of all the toll-free calls placed in that area. On the basis of these reports, Mattila ordered on July 13, and 17, 1973 the installation of a 2600 cycle detector placed on both of Auler's Wisconsin Dells telephone lines.

After the detection of numerous 2600 cycle tones, Mattila, on July 27, 1973, ordered the attachment of magnetic tape recording devices to Auler's lines to monitor all multifrequency tones and conversations originating from Auler's residence. ⁴ This taping was discontinued on one line on July 29, and on the other on July 30. General Telephone's logs indicate that the magnetic recorders also taped traffic over Auler's lines on August 2 through 3, and August 9 through 13.

On July 30 and 31, Mattila advised F.B.I. Agent Hunter that General Telephone had conducted an investigation regarding Raymond Auler, and that based on this investigation Auler was suspected of using a blue box. Hunter obtained a warrant on August 3 to search Auler's residence. Accompanied by Mattila, Hunter executed the warrant on August 10. Immediately preceding the search Mattila had been in contact with General Telephone agents who were monitoring Auler's lines. These agents informed Mattila that they had detected a 2600 cycle tone and had recorded Auler completing a call. During the search Hunter found and seized a blue box and other equipment. Auler was subsequently tried on stipulated facts and found guilty. Prior to trial Auler had unsuccessfully sought to suppress any evidence that was the product of General Telephone's interception of his telephone lines.

II

The appellant's primary argument asserts that the evidence secured to convict him was obtained in violation of the Communications Act of 1934, 47 U.S.C. § 605. Section 605 prohibits, with certain exceptions, the divulgence or publication of interstate communication received by wire by any person. Auler claims that the attachment of the 2600 cycle detector, the monitoring of his telephone lines by General Telephone Company, and the subsequent disclosure of the information secured through these devices to the F.B.I. were made in violation of section 605. Therefore, the information and the fruits thereof must be suppressed.

We were asked to address the same argument in United States v. Freeman, 524 F.2d 337 (7th Cir. 1975), cert. denied, --- U.S. ----, 96 S.Ct. 1126, 47 L.Ed.2d 327, 44 U.S.L.W. 3472 (1976). In Freeman we considered the scope of the exception, provided in the first sentence of section 605, ⁵ as amended by the Crime Control Act of 1968, ⁶ in light of the prohibitions against disclosure of wire communications listed in the first paragraph of section 605. We held that section 2511(2)(a)(i) ⁷ "must sensibly be read as an exception of telephone companies from the relevant prohibitions of 47 U.S.C. § 605, and, in a sense, as an authorization." Freeman, supra, at 340. We find nothing in the appellant's argument or other recent cases, e. g., United States v. Clegg, 509 F.2d 605 (5th Cir. 1975) to suggest that our interpretation of these statutory provisions was incorrect. Therefore, we reaffirm our decision that section 2511(2)(a)(i) provides a telephone company with the power to protect its property through limited monitoring of the lines of suspected illegal users and the subsequent immunity ⁸ to disclose necessary information to law enforcement agencies.

This authority of the telephone company to intercept and disclose wire communications is not unlimited. It may only intercept a communication which is "a necessary incident to the rendition of . . . service or . . . (for) the protection of the (company's) rights or property . . . ." 18 U.S.C. § 2511(2)(a)(i). In addition, section 2511(2)(a)(i) prohibits "random monitoring except for mechanical or service quality control checks." Therefore, we think that any surveillance of a suspected blue box user must be restricted to a determination of (1) whether a blue box is being used; (2) the multifrequency tones of the number "dialed" by the blue box; (3) whether the call was completed; (4) the duration of the call; and (5) the identity of the caller. This information can be obtained through a 2600 cycle detector, ⁹ or similar device, and a tape recording of the salutations at the beginning of the conversation. Therefore, section 2511(2)(a)(i) must reasonably be read to permit the telephone company "to divulge, at least, the existence of the illegal calls and the fact that they were completed (the salutations) to law enforcement authorities . . . ." United States v. Clegg, 509 F.2d 605, 612 (5th Cir. 1975). These authorized disclosures could properly be used to obtain a search warrant and would be admissible as evidence. 18 U.S.C. § 2517(3).

Auler points out that General Telephone's surveillance of his conversations extended beyond the scope of permissible interception just outlined. At oral argument, the Government conceded that during the approximately two week period of surveillance, General Telephone monitored and committed to tape all calls, whether made illicitly with a blue box or in compliance with the subscription agreement. This intrusive interception provided General Telephone with far more information than it needed to protect its interests.

However, General Telephone only disclosed to the F.B.I. the limited evidence which section 2511(2)(a)(i) reasonably permits. See Clegg, supra. This consisted of edited tape recordings containing tones identified as those transmitted by a blue box, dialing signals, and salutations of the appellant. The interception of the material recorded on these tapes may be viewed apart from those more intrusive acts of surveillance which are not immunized by section 2511(2)(a)(i). The reasonable and necessary interceptions and disclosures need not be suppressed as the "fruits" of illegal surveillance. Neither the statute nor the Fourth Amendment, which does not prohibit unreasonable searches by private individuals, Honeycutt v. Aetna Insurance Company, 510 F.2d 340, 348 (7th Cir. 1975), cert. denied, 421 U.S. 1011, 95 S.Ct. 2416, 44 L.Ed.2d 679 (1975); United States v. Newton, 510 F.2d 1149, 1153 (7th Cir. 1975), require lawful interceptions and disclosures to be excluded as evidence; only evidence obtained through surveillance beyond the authorization of section 2511(2)(a)(i), which section 605 prohibits, must be suppressed. General Telephone provided no evidence stemming from excessive interception to the F.B.I., and the Government offered none at trial. ¹⁰ The edited tapes offered at trial were properly admitted. We do...