U.S. v. Felton

• Decision Date: 15 January 1985
• Docket Number: No. 84-3398,84-3398
• Citation: 753 F.2d 256
• Parties: The UNITED STATES v. Dean K. FELTON, Nancy E. Bruce, John Zorak a/k/a Johnny, Anthony Serrao a/k/a Buddy, Richard Cox a/k/a Ricky, James Thurman, John Hathorne. Appeal of UNITED STATES of America.
• Court: U.S. Court of Appeals — Third Circuit

Page 256

753 F.2d 256

The UNITED STATES v. Dean K. FELTON, Nancy E. Bruce, John Zorak a/k/a Johnny Anthony Serrao a/k/a Buddy, Richard Cox a/k/a Ricky, James Thurman, John Hathorne Appeal of UNITED STATES of America.

No. 84-3398.

United States Court of Appeals Third Circuit.

Argued Dec. 7, 1984.

Decided Jan. 8, 1985.

As Amended Jan. 15, 1985.

J. Alan Johnson, U.S. Atty., Paul J. Brysh (argued), and Constance M. Bowden, Asst. U.S. Attys., Pittsburgh, Pa., for appellant.

Stephen M. Sokol, Pittsburgh, Pa., for appellee Richard Cox.

Charles F. Scarlata (argued), Pittsburgh, Pa., for appellee Anthony Serrao (sometimes referred to in court papers as "Serraro").

Before ALDISERT, Chief Judge, BECKER, Circuit Judge, and STERN, District Judge. ^*

OPINION OF THE COURT

ALDISERT, Chief Judge.

A number of defendants are named in a ten-count indictment charging a conspiracy to possess with intent to distribute marijuana and various associated charges, including performance of overt acts in furtherance of the conspiracy. During the pendency of the conspiracy, Dean Felton, one of the defendants, tape recorded certain telephone conversations that he had with two co-defendants, Anthony Serrao and Richard Cox, without their knowledge. The police now possess these tapes. This appeal by the government from the trial court's order, 592 F.Supp. 172, suppressing the recorded conversations of Serrao and Cox requires us to decide whether introducing the contents of these recordings as evidence constitutes an unreasonable invasion of appellees' legitimate expectation of privacy in the conversations. We find no such protected interest, and therefore reverse the order of the district court.

I.

The facts are not in dispute. Felton owned three houses in Salt Lake City, Utah, that were managed by Quality Properties, a Utah real estate company. Nancy Bruce, one of the co-defendants and ostensibly a friend of Felton, requested Robert Fleming, president of Quality, to search one of Felton's houses for the purpose of locating some clothing left there by her. Quality subsequently located the clothing in a storage area on one of the properties and in a storage space that Quality Properties had rented in Felton's name.

Thereafter, state law enforcement officers advised Fleming that Felton was under investigation for narcotics activities. On February 17, 1982, Fleming and one of his employees, Loren Woods, went to the storage area to look for Bruce's clothing. Two officers of the Utah attorney general's office accompanied Fleming and Woods. While examining the storage areas in Felton's home, Woods found marijuana and certain tape recordings, which he turned over to the Utah authorities. The Utah authorities then turned the tapes over to the Pittsburgh authorities. Without obtaining a warrant, Pittsburgh law enforcement agents played the tapes. This investigation revealed that these tapes included recordings of two telephone conversations made by Felton; one, between Felton and Cox; the other, between Felton and Serrao. Cox and Serrao successfully moved to suppress the recordings in district court.

The district court ruled that the searches of the storage areas were private searches conducted by the owner's real estate manager and not by government agents. The court made detailed findings of fact supporting its conclusion that these private searches did not offend the fourth amendment. The government does not contest this ruling. The district court, however, also held that in the absence of a search warrant the government agents were not permitted to listen to the tape recordings or introduce their contents in evidence. Therefore, the court suppressed the contents of the tape recordings and the fruits thereof. The government has appealed the suppression order. We have jurisdiction over this appeal pursuant to 18 U.S.C. Sec. 3731.

II.

In granting the suppression order, the district court reasoned "that the defendant Serrao had an expectation that the underlying phone conversation would be private, and, while he assumed the risk that the party in whom he was confiding was an informant or would turn information over to the government, Serrao did not assume the risk that the government would listen to the conversation under circumstances that were in violation of his Fourth Amendment rights." 592 F.Supp. at 194. The court's ruling applied to defendant Cox as well. See app. at 99a.

The district court primarily relied on United States v. Jacobsen, --- U.S. ----, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984). Moreover, the district court also concluded that the government "had even less cause to listen to the tape than the government had in viewing the films which was found to be an unreasonable search in the analogous case of Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980)." 592 F.Supp. at 194. For reasons we discuss later, we are of the view that neither Jacobsen nor Walter controls. Rather, we look to the main body of settled law regarding recorded conversations and expectations of privacy under the fourth amendment.

III.

At the outset, we must make one point clear. Before us, the government insists on phrasing our inquiry in terms of defendants' "standing" to invoke the fourth amendment. Yet, we are instructed that in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the Supreme Court "abandoned a separate inquiry into a defendant's 'standing' to contest an allegedly illegal search in favor of an inquiry that focused directly on the substance of the defendant's claim that he or she possessed a 'legitimate expectation of privacy' in the area searched." Rawlings v. Kentucky, 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633 (1980). Conforming to this direction, we have decided this case on the basis of this expectation rather than on "standing." ¹

IV.

We begin our inquiry with the cases discussing recorded conversations, the evidence at issue in this case. We have the uneasy feeling that the district court, faced with an array of pre-trial motions from seven defendants that covered a plethora of subjects, did not have the benefit of the extensive briefing developed by the government in this appeal on this one issue. We are convinced that, in an abundance of conscience to protect the doctrine of privacy, the district court believed that this case constituted an exception to our seminal decision of United States v. Mitlo, 714 F.2d 294, 296 (3d Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 550, 78 L.Ed.2d 724 (1983), wherein we stated: "Where one party to the conversation consents to the electronic monitoring, the conversation is admissible." As a matter of policy we are unwilling to engraft the exception proposed by the district court. We perceive that no distinction should exist in the law when one of the parties to the conversation makes a tape recording of a telephone conversation instead of utilizing an electronic monitoring device, or radio transmitter, United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979), or when that party makes the tape on his own initiative instead of doing it at the behest of a government agency.

The law generally is settled in this area. We believe that this case presents facts only slightly varied from factual scenarios contained in hefty and hearty precedents. If the fourth amendment does not protect a party to a conversation who reposes a trust or confidence in an undisclosed government agent or informant, Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), we cannot see how the expectation of privacy arises when the recording of a conversation is made by his own confederate. The notion that there is "honor among thieves" has no legal or factual basis. The Supreme Court has stated that "[n]either this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." Id. at 302, 87 S.Ct. at 413.

The cases support this rationale. The fourth amendment is not infringed when an undisclosed federal agent simultaneously records a conversation with an electronic recording device on his person, Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963), or when the conversation is transmitted electronically to a remote place where it is overheard and recorded, United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979); United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) (plurality opinion); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952), or where one party to the conversation permits a third party to listen on an extension, Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957). Chief Justice Warren appears to have offered a terse explanation of why there can be no expectation of privacy in such conversations: "The communication itself is not privileged, and one party may not force the other to secrecy merely by using a telephone." Id. at 110, 78 S.Ct. at 163.

V.

Although the facts before us differ slightly than those in the foregoing cases, the issue can be posed in a single question. If it is conceded that one party to a telephone conversation has no expectation of privacy protected by the fourth amendment when the other party, or listener, is a police informer who deliberately turns over a tape recording to the police, does it make any difference in terms of privacy expectations if the other party, by negligence, inadvertence, or otherwise, permits a tape recording, surreptitiously prepared by him, to come into lawful police possession? We do not think so.

How the tapes came into lawful police possession is immaterial to the overarching question of privacy expectations. Insofar as the fourth amendment is concerned, one party to a telephone conversation assumes the risk that...