U.S. v. Baranek

• Decision Date: 24 May 1990
• Docket Number: No. 88-2088,88-2088
• Citation: 903 F.2d 1068
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Gary BARANEK, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1068

903 F.2d 1068

UNITED STATES of America, Plaintiff-Appellant, v. Gary BARANEK, Defendant-Appellee.

No. 88-2088.

United States Court of Appeals Sixth Circuit.

Argued Oct. 13, 1989.

Decided May 24, 1990.

Stephen J. Markman, U.S. Atty. (argued), Detroit, Mich., Michael Hluchaniuk, Asst. U.S. Atty., Bay City, Mich., Maureen H. Killion, Silvia Voreas, Dept. of Justice, Washington, D.C., for U.S.

Jerome E. Burns (argued), Saginaw, Mich., for Gary Baranek.

Before JONES and GUY, Circuit Judges; and BERTELSMAN, District Judge. ^*

RALPH B. GUY, Jr., Circuit Judge.

This appeal presents the issue whether a conversation overheard on a telephone that is the subject of a Title III wiretap should be suppressed when, at the time of the interception, the telephone was inadvertently off the hook and not in use. The district court concluded that the defendant's motion to suppress should be granted. We disagree and reverse.

I.

On March 2, 1988, the district judge entered a Title III ¹ order authorizing the interception of wire communications over a telephone located at the residence of codefendant Patricia Borch. During the course of surveillance, agents intercepted a call on March 30, 1988. At the conclusion of this call, Borch neglected to replace the telephone properly, and the line stayed open. Surveillance agents were aware of this situation because they heard the recorded warning and beeping that occurs when a telephone is left off the hook. The telephone remained off the hook for two hours and fifteen minutes. During this period, monitoring agents "spot-checked" the line and recorded approximately 50 minutes of conversation between Borch and Baranek while they were in Borch's kitchen. Borch and Baranek were subsequently indicted along with 24 others in a 62-count indictment charging a variety of drug and other offenses.

Both Borch and Baranek subsequently filed motions to suppress this intercepted conversation and both motions were granted. ² Borch later pled guilty and the government now appeals the suppression order as it related to Baranek.

II.

Since the fact situation presented is obviously unique, it is not surprising that little case authority exists that is directly on point. The district court, in deciding to suppress, primarily relied on the language of the wiretap statute itself:

In Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Secs. 2510-2520, Congress described a "wire communication" essentially as an "aural transfer ... between the point of origin and the point of reception...." 18 U.S.C. Sec. 2510(1). An "aural transfer," in turn, is defined as "a transfer containing the human voice at any point between and including the point of origin and the point of reception." Id. Sec. 2510(18). Defendant Borch's comments, whether inculpatory or not, clearly "contain the human voice." See id. What is not clear, however, is whether the case at bar falls within the requirement of a "transfer ... between the point of origin and the point of reception." Id. Sec. 2510(1); see also id. Sec. 2510(18).

United States v. Borch, 695 F.Supp. 898, 900 (E.D.Mich.1988) (footnote omitted). The district judge answered the "transfer" question in the negative and concluded that "the non-telephonic statements of Defendant Borch ... are not 'wire communications' within the statutory framework underlying the Court's authorization order." Id. at 901-02. The court then went on to conclude that suppression was required due to the fact that the "interception was not made in conformity with the order of authorization or approval." 18 U.S.C. Sec. 2518(10)(a)(iii). The district judge also concluded that suppression was mandated by our earlier holding in United States v. George, 465 F.2d 772 (6th Cir.1972) ("[W]iretap evidence secured without regard to the limitation set forth in the authorization order is inadmissible.").

The government makes three arguments on appeal in support of its contention that the district court erred. First, the government contends without much elaboration that the interception was not in violation of the Title III order. The government concedes, however, that an "oral" communication was intercepted under an order authorizing "wire" interception.

Second, the government argues forcefully that even if the interception was technically not "in conformity with the order of authorization," that suppression was not mandated. In support of this argument, the government stresses the good faith and lack of any wrongful conduct on the part of the surveillance agents, as well as arguing that the district court's heavy reliance on George is misplaced.

Third, the government makes a "plain view" argument seeking to carve out by analogy a "plain hearing" exception to the exclusionary provisions of the statute.

The defendant, on appeal, essentially relies upon the district court opinion and makes no effort to enlarge upon its reasoning.

III.

Before undertaking an analysis of the issues involved, we first note that we are dealing with a highly unusual fact situation which, although capable of repetition, is likely to be a very rare occurrence. Also, since the circumstances involved are wholly fortuitous, we will not impact or shape future conduct because the government was a wholly passive beneficiary of what happened here. This is not to suggest that the privacy interests involved somehow become insignificant in this setting but, rather, that whatever we decide in this case will have something less than global impact. ³ The entire procedure authorizing the government to intercept wire and oral communications is a creature of statute and perhaps the ultimate solution to the problem presented here will come from Congress. In the meantime, it falls to us to address the issue.

Although we find some merit to all three arguments made by the government as to why suppression is not required, ⁴ we choose to base our holding on the government's "plain view" theory. ⁵ We have several reasons for doing so. First, although Baranek was quite clearly involved in illegal drug activities, he was the victim of a fortuitous overhearing under circumstances in which he certainly had a subjective expectation of privacy. When one calls another on the telephone, it is with the explicit knowledge that the other party could allow someone to listen to the call or even record it. Thus, one takes a calculated risk each time one makes a telephone call. That cannot be said about a face-to-face communication involving criminal activities made in the privacy of the kitchen of one of the speakers. Although the government could have sought authorization to plant a listening device in Borch's home rather than to intercept her telephone calls, it did not do so. The government had probable cause for the telephone intercept; it may or may not have had probable cause to justify placing a "bug" in the house, which would involve more intrusive procedures. What constitutes probable cause for one does not necessarily constitute probable cause for the other. Therefore, when the telephone turns into a "bug," the government is given an advantage not specifically authorized or anticipated by the issuing judicial officer. More significantly, those on the premises are exposed to a "risk" beyond that contemplated by the authorization, and this, it seems to us, is the problem in trying to squeeze what happened here into the ambit of the authorization.

The plain view doctrine, on the other hand, is designed to deal with "inadvertence." Indeed, an inadvertent discovery is the cornerstone of the entire doctrine. In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 reh'g denied, 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971), the Supreme Court laid down the guiding principles for the application of the plain view doctrine. The Court in the later case of Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983), summarized these principles:

First, the police officer must lawfully make an "initial intrusion" or otherwise properly be in a position from which he can view a particular area. Second, the officer must discover incriminating evidence "inadvertently," which is to say, he may not "know in advance the location of [certain] evidence and intend to seize it," relying on the plain-view doctrine only as a pretext. Finally, it must be "immediately apparent" to the police that the items they observe may be evidence of a crime, contraband, or otherwise subject to seizure.

Id. at 737, 103 S.Ct. at 1540-41 (citations omitted) (quoting Coolidge, 403 U.S. at 465-70, 91 S.Ct. at 2037-40).

It would seem that what occurred here fits within the rationale as well as the literal language of the Coolidge requirements. First, there was a properly issued authorization order which clearly makes the "initial intrusion" lawful. In point of fact, the procedures and safeguards involved in securing a Title III authorization for a wire communications interception exceed those involved in the typical search warrant issuance.

Second, the fact that the telephone was left off the hook was certainly inadvertent. By no stretch of the imagination would the government have contemplated ever securing evidence in the manner that occurred here.

Third, it was immediately apparent to the officers that they were hearing evidence related to a crime. The defendant has not suggested any reason why inadvertent hearing should be on a different constitutional footing than inadvertent viewing, and we can think of none. Indeed, what occurred here was much closer to being a discovery within the ambit of the "warrant" than the typical inadvertent discovery made in the course of executing a search warrant.

Baranek lays claim (in a constitutional sense only) to being an "innocent" victim and not the subject of the surveillance. This is only partially true, since he is no more "innocent" than anyone who would have called Borch and been...