U.S. v. McIntyre

Citation582 F.2d 1221
Decision Date25 September 1978
Docket Number77-3716,Nos. 77-3623,s. 77-3623
PartiesUNITED STATES of America, Appellee, v. Frederick Lyle McINTYRE, Appellant. UNITED STATES of America, Appellee, v. Dale Irwin VanBUSKIRK, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

James M. Wilkes (argued), Harley Kurlander (argued), Tucson, Ariz., for appellant.

Bates Butler, Asst. U. S. Atty. (argued), Tucson, Ariz., for appellee.

Appeal from the United States District Court for the District of Arizona.

Before ELY and GOODWIN, Circuit Judges, and PALMIERI *, District judge.

GOODWIN, Circuit Judge:

McIntyre and VanBuskirk appeal their convictions for violating and conspiring to violate 18 U.S.C. § 2511(1)(a) and (b) (Title III of the Omnibus Crime Control and Safe Streets Act of 1968). 1

VanBuskirk was Chief of Police of Globe, Arizona, and McIntyre was a Lieutenant in that department. The Assistant Chief of Police was Robert McGann. VanBuskirk and McIntyre suspected McGann of leaking damaging information to political enemies of VanBuskirk. McIntyre also suspected McGann of narcotics trafficking.

On several occasions, McIntyre met with Officers Johnson and Ambos to discuss ways of confirming his suspicions concerning McGann. The three agreed that electronic surveillance of McGann's office would best serve that purpose. McIntyre and Johnson also met with VanBuskirk in a city park near the police station. During this meeting VanBuskirk approved of the plan to "bug" McGann's office if it "could be done legally".

Several days after the meeting in the park, Officer Johnson placed a microphone and transmitter in a briefcase in McGann's office. Johnson and Ambos attempted to monitor McGann's conversations. They were able to overhear only a brief exchange between McGann and Sergeant Gary Stucker. Johnson returned to McGann's office after 45 minutes and removed the briefcase, ending the surveillance. At no time did any of the participants seek a court order or McGann's consent for the surveillance.

The defendants raise four issues on appeal: (1) McGann's reasonable expectation of privacy in his office; (2) the "willfulness" of defendants' conduct within the meaning of Title III; (3) the sufficiency of the evidence; and (4) the exclusion of VanBuskirk's exculpatory polygraph.

Reasonable Expectation of Privacy

Title III prohibits the interception of "wire" and "oral communications". For purposes of §§ 2511 Et seq., § 2510(2) defines "oral communication" as "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation".

The legislative history behind § 2510(2) reflects Congress's intent that Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), serve as a guide to define communications that are uttered under circumstances justifying an expectation of privacy. S.Rep.No.1097, 90th Cong., 2d Sess., Reprinted in (1968) U.S.Code Cong. & Admin.News pp. 2112, 2178. Guided by Katz, our inquiry is whether the communications overheard by Johnson and Ambos were uttered by a person (1) who has a subjective expectation of privacy, and (2) whose expectation was objectively reasonable. United States v. Freie, 545 F.2d 1217, 1223 (9th Cir. 1976).

There is no question that McGann had a subjective expectation of privacy. At trial McGann testified that he believed that normal conversations in his office could not be overheard, even when the doors to his office were open.

Defendants contend, however, that McGann's expectation of privacy was objectively unreasonable. First, they say that McGann could not reasonably expect to be free from "administrative internal affairs investigations". Second, they say that the architecture of McGann's office made his expectation of privacy unreasonable. Both contentions must fail.

A police officer is not, by virtue of his profession, deprived of the protection of the Constitution. Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). This protection extends to warrantless eavesdropping to overhear conversation from an official's desk and office. Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967); United States v. Kahan, 350 F.Supp. 784 (S.D.N.Y.1972), Rev'd on other grounds, 479 F.2d 290 (2d Cir. 1973), Rev'd, 415 U.S. 239, 94 S.Ct. 1179, 39 L.Ed.2d 297 (1974).

An established regulatory scheme or specific office practice may, under some circumstances, diminish an employee's reasonable expectation of privacy. United States v. Davis, 482 F.2d 893 (9th Cir. 1973); United States v. Speights, 557 F.2d 362 (3d Cir. 1977). But defendants here have failed to show a regulatory scheme or specific office practice which would have alerted McGann to expect random monitoring of his conversations. Evidence that other, unconsented, "bugging" may have occurred within the Globe Police Department does not alter our conclusion. Sporadic illegal eavesdropping does not create a regulatory scheme or a specific office practice. In any event, the "bugging" here cannot be termed an "administrative" search.

Neither can the "bugging" be justified as an "internal affairs investigation". An employer may search the work area of an employee for misplaced property or, in some circumstances, to supervise work performance. United States v. Bunkers, 521 F.2d 1217 (9th Cir.), Cert. denied, 423 U.S. 989, 96 S.Ct. 400, 46 L.Ed.2d 307 (1975); United States v. Blok, 88 U.S.App.D.C. 326, 328, 188 F.2d 1019, 1021 (1951). But defendants' purpose in "bugging" McGann was, at least in part, to confirm their suspicion that he was involved in external crime (narcotics). Therefore, the "bugging" was not an "internal affairs investigation", but part of a criminal investigation, the area of activity for which Title III was written.

Defendants next argue that the physical characteristics of McGann's office made his expectation of privacy unreasonable. At trial defendants introduced evidence to show that at the time of the "bugging" McGann's office doors were open, and that a records clerk worked fifteen feet away in an adjacent room.

We cannot accept the argument that an open door made McGann's expectation of privacy unreasonable. Johnson testified that conversations in McGann's office were difficult to overhear even with the office doors open. As noted previously, McGann believed his office conversations to be private. A business office need not be sealed to offer its occupant a reasonable degree of privacy. The evidence supported a finding that McGann had a reasonable expectation of privacy in his office. It follows that the conversation attempted to be overheard by Johnson and Ambos between McGann and Sergeant Stucker was an "oral communication" within the meaning of 18 U.S.C. § 2510(2).

"Willfulness" Under § 2511(1)(a) and (b)

Title III prohibits only the "willful" interception of communications. Defendants contend that their action was not "willful" because they believed in good faith that their conduct was legitimate.

Defendants testified that they had sought and followed the advice of a communications technician for the Department of Public Safety. There was no testimony that the communications technician told them that the use of a hidden microphone was proper in an "internal investigation" of the police department. This defense, however, amounts only to a defense of "ignorance of the law", which this and other courts have pointed out from time to time is no defense. See, e. g., United States v. Mathews, 518 F.2d 1296 (9th Cir. 1975).

In United States v. Schilleci, 545 F.2d 519 (5th Cir. 1977), the court held in affirming a conviction for violating the same statute that a mistaken belief that the eavesdropping was legal was no defense. The question for the trier of fact is not whether the defendant thought his conduct was legal, but whether the defendant's state of mind was "willful". Ignorance of the law in some cases may convince a jury that the prosecution did not prove willfulness, but such ignorance is relevant only because the issue of willfulness may open up the question of motive.

The meaning of "willful" has not been uniformly applied in federal criminal statutes. 2 It has become necessary to examine each statute to determine legislative intent in using the word "willfully".

A Senate Report cites United States v. Murdock, 290 U.S. 389, 54 S.Ct. 223, 78 L.Ed. 381 (1933), as a guide to interpreting "willfulness" within the meaning of Title III. S.Rep.No.1097, 90th Cong., 2d Sess., Reprinted in (1968) U.S.Code Cong. & Admin.News, pp. 2112, 2181. 3 In Murdock, the Court held that a "willful" violation of a revenue act requires more than a mere misunderstanding as to tax liability. A "willful" act is one done with a "bad purpose" or "evil motive". 290 U.S. at 394-95, 54 S.Ct. 223.

The "bad purpose" requirement implicit in Title III indicates that Congress did not intend to subject police officers to criminal sanctions merely because they fail to comply with some of the statute's technical requirements. But Congress did not intend to immunize police officers from Title III penalties simply because they are police officers. The statute is full of references to law enforcement officers as targets of the...

To continue reading

Request your trial
66 cases
  • In re Google Assistant Privacy Litig.
    • United States
    • U.S. District Court — Northern District of California
    • July 1, 2021
    ..."reasonable expectation of privacy" in oral communications to state a claim under the Wiretap Act) (quoting United States v. McIntyre , 582 F.2d 1221, 1223 (9th Cir. 1978) ); id. at 28 (to state a CIPA Section 632 claim, plaintiffs must allege "confidential communications," which requires a......
  • Lopez v. Apple, Inc.
    • United States
    • U.S. District Court — Northern District of California
    • February 10, 2021
    ...Wiretap Act only protects oral communications in which the speaker has a "reasonable expectation of privacy." United States v. McIntyre , 582 F.2d 1221, 1223 (9th Cir. 1978).Here, Apple seeks to dismiss for failure to allege that (1) Apple "intercepted" any communication, (2) intentionally,......
  • State v. Strohl
    • United States
    • Nebraska Supreme Court
    • January 8, 1999
    ...to interception under circumstances justifying such expectation...." § 86-701(12). In State v. Weikle, supra (citing United States v. McIntyre, 582 F.2d 1221 (9th Cir.1978)), we stated that for a statement to fall within the statute's definition, the communication must be uttered by a perso......
  • State v. Sugar
    • United States
    • New Jersey Supreme Court
    • July 24, 1980
    ...v. Duncan, 598 F.2d 839, 847 (4th Cir. 1979), cert. den., 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979); United States v. McIntyre, 582 F.2d 1221, 1224-1225 (9th Cir. 1978); Kratz v. Kratz, 477 F.Supp. 463, 477-480 (E.D.Pa. 1979); State v. McCartin, 135 N.J.Super. 81, 342 A.2d 591 (Law ......
  • Request a trial to view additional results
4 books & journal articles
  • Table of cases
    • United States
    • James Publishing Practical Law Books Deposition Objections
    • March 31, 2021
    ...F.2d 724 (9th Cir. 1990), §§8:11, 8:20, 8:22 United States v. McElrath , 377 F.2d 508 (6th Cir. 1967), §8:24 United States v. McIntyre , 582 F.2d 1221 (9th Cir. 1978), §10:03 United States v. McLaughlin , 126 F.3d 130 (3d Cir. 1997), §7:02 United States v. Medrano , 2019 WL 415040 (E.D. Cal......
  • Privacy Privilege
    • United States
    • James Publishing Practical Law Books Discovery Collection. James' Best Materials - Volume 2 Deposition Objections
    • April 29, 2015
    ...have been given advance notice of the rules. See, e.g., O’Connor v. Ortega , 480 U.S. 709, 718-19 (1987); United States v. McIntyre , 582 F.2d 1221, 1224 (9th Cir. 1978) (stating that “[a]n established regulatory scheme or specific office practice may, under some circumstances, diminish an ......
  • Privacy privilege
    • United States
    • James Publishing Practical Law Books Deposition Objections
    • March 31, 2021
    ...have been given advance notice of the rules. See, e.g., O’Connor v. Ortega , 480 U.S. 709, 718-19 (1987); United States v. McIntyre , 582 F.2d 1221, 1224 (9th Cir. 1978) (stating that “[a]n established regulatory scheme or specific office practice may, under some circumstances, diminish an ......
  • Warrantless Search in the Law Enforcement Workplace
    • United States
    • Police Quarterly No. 1-2, June 1998
    • June 1, 1998
    ...Merit Board, 507 N.E.2d 1262 (Ill. App. 5 Dist. 1987). United States v. Kahan, 350 F.Supp. 784 (S.D. N.Y 1972).United States v. Mclntyre, 582 F2d 1221 (9th Cir. 1978).United States v. Speights, 557 R2d 362 (3rd Cir. 1977).U.S. v. Taketa, 923 R2d 665 (9th Cir. 1991 ).Williams v. Collins, 728......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT