U.S. v. Passarella

• Decision Date: 17 April 1986
• Docket Number: No. 85-5375,85-5375
• Citation: 788 F.2d 377
• Parties: , 20 Fed. R. Evid. Serv. 714 UNITED STATES of America, Plaintiff-Appellee, v. Samuel John PASSARELLA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 377

788 F.2d 377

54 USLW 2583, 20 Fed. R. Evid. Serv. 714

UNITED STATES of America, Plaintiff-Appellee, v. Samuel John PASSARELLA, Defendant-Appellant.

No. 85-5375.

United States Court of Appeals Sixth Circuit.

Argued Jan. 20, 1986.

Decided April 17, 1986.

Donald E. Dawson, Asst. Federal Public Defender, Nashville, Tenn., James K. McCrarey (argued), for defendant-appellant.

Joe B. Brown, U.S. Atty., Nashville, Tenn., Michael Spalding (argued), for plaintiff-appellee.

Before ENGEL, KENNEDY and RYAN, Circuit Judges.

ENGEL, Circuit Judge.

Defendant Samuel J. Passarella appeals his convictions of five counts of an indictment charging him with conspiracy to sell or exchange counterfeit obligations of the United States in violation of 18 U.S.C. Secs. 472 and 473, the unlawful possession and transfer of Federal Reserve notes in violation of 18 U.S.C. Secs. 472 and 473, conspiracy to distribute Schedule II controlled substances in violation of 21 U.S.C. Sec. 841(a)(1), and the use of a communication facility in the distribution of cocaine in violation of 21 U.S.C. Sec. 843(b). On appeal, Passarella raises three grounds for reversal of some or all of his convictions. First, Passarella argues that the district court improperly admitted evidence gained by the government's unlawful interception of his telephone calls; second, Passarella argues that the district court improperly admitted irrelevant and prejudicial evidence thereby depriving him of his right to a fair trial; and third, he contends the evidence was insufficient to support his convictions. We affirm.

On June 19, 1980, a grand jury of the United States District Court for the Middle District of Tennessee returned the five-count indictment charging Passarella with violations of federal law. The case was tried on December 1 and 2, 1980, before United States District Judge John Nixon, Passarella having waived his right to a jury trial. After the completion of the government's case, the defense rested without introducing any evidence. Thereafter, Judge Nixon found Passarella guilty of all five counts. No appeal was taken but Passarella subsequently filed a petition for writ of habeas corpus under 28 U.S.C. Sec. 2255 alleging that he was denied effective assistance of counsel by reason of his counsel's failure to perfect his right of appeal. Judge Nixon vacated the original sentence and resentenced Passarella on April 24, 1985, to fifteen years each on counts one through four, and four years on count five, all counts to run concurrently. This appeal followed. ¹

Of the contentions raised by Passarella in his appeal, only one merits detailed discussion. To effect Passarella's arrest, the arresting officers, armed with a valid arrest warrant, gained admission to his home and ascertained from others in the house that he was expected to return shortly. While upon the premises, the telephone in Passarella's home rang. One of the officers, special agent Moulton, answered the phone and took the messages intended for Passarella. In two calls, Moulton permitted the caller to assume that he was Passarella himself, although the officer did not expressly so state. During the course of these calls, the caller, believing that Moulton was Passarella, talked about an opportunity for a major sale of dilaudids. This incriminating evidence was subsequently used against Passarella at his trial.

No challenge is made to the validity of the arrest warrant or as to the right of the officers to be in Passarella's home for the purpose of executing the warrant. Passarella does claim, however, that in answering the telephone in the manner indicated and in thus intercepting the messages, the government agent exceeded the permissible scope of any search incident to Passarella's arrest and was guilty of violating his right of privacy under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Secs. 2510-2520, and the Fourth Amendment to the United States Constitution.

Passarella's reliance upon Title III is without merit. It is generally true that "to protect effectively the privacy of wire and oral communications ..." ² Congress provided that evidence acquired by law enforcement officers through the interception of wire or oral communications is inadmissible unless the officers obtained prior judicial authorization for the interception. See 18 U.S.C. Secs. 2515-2518. These procedural and substantive provisions, however, were made expressly inapplicable to consensual interceptions, such as those in the instant case. Thus, 18 U.S.C. Sec. 2511(2)(c) provides:

It shall not be unlawful under this chapter for a person acting under color of the law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to the interception.

In the instant case, because special agent Moulton directly answered the ringing telephone calls while lawfully on Passarella's premises, he was "acting under color of the law" and he was "a party to the communication." Moulton's conduct in this respect was therefore not in violation of Title III. This conclusion finds ample support in both the legislative history of section 2511(2)(c) ³ and the case law interpreting this provision. See, e.g., United States v. Vadino, 680 F.2d 1329, 1335 (11th Cir.1982); United States v. Campagnuolo, 592 F.2d 852, 862-63 (5th Cir.1979); United States v. Kane, 450 F.2d 77, 84-85 (5th Cir.1971), cert. denied, 405 U.S. 934, 92 S.Ct. 954, 30 L.Ed.2d 810 (1972). While this conclusion disposes of Passarella's statutory claim, there remains the question of whether Passarella's right to be free from "unreasonable searches and seizures" was violated when Moulton answered the ringing telephone while endeavoring to execute an arrest warrant at Passarella's home.

We emphasize that Passarella does not contest the validity of the arrest warrant, nor does he contend that the agents overextended their stay while executing that warrant. There is no question, therefore, but that agent Moulton was lawfully on the premises at the time he answered the telephone calls. Nevertheless, Passarella argues that because the agents were not armed with a search warrant, Moulton violated Passarella's "legitimate expectation of privacy regarding calls to him on his home phone when the caller asked to speak to 'Sam.' " Although this question is not without difficulty, we conclude that where the officers were lawfully upon the premises and answered the telephone, no expectation of privacy arose as to those conversations in which Passarella did not participate.

That the Fourth Amendment protects a person's legitimate expectations of privacy has been established at least since Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Based on this notion, the Supreme Court held that "[t]he Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment." Id. at 353, 88 S.Ct. at 512. In reaching this conclusion, however, the court emphasized that it was the petitioner's .e., Katz's, conversational privacy that was entitled to protection: "One who occupies [a telephone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world." Id. at 352, 88 S.Ct. at 511-512. (emphasis added).

Properly understood, therefore, Katz protects a person's own conversational privacy from unjustifiable governmental intrusions. Certainly one cannot claim an expectation of privacy in the words uttered by another. Here, however, and unlike Katz, there was no intrusion upon Passarella's conversational privacy; Passarella simply was not a participant in any of the telephone conversations. The only participants in these conversations were agent Moulton and the caller. It is clear, moreover, that because "[a] conversation belongs equally to all participants ... no one can have an expectation of privacy about the use of a conversation by a participant." United States v. Baldwin, 632 F.2d 1, 3 (6th Cir.1980) (Jones, J., dissenting from denial of petition for rehearing).

Passarella's brief suggests, however, that because agent Moulton did not identify himself, the agent was therefore not a legitimate participant in those telephone conversations intended for someone else. We disagree. Initially, we note that agent Moulton did not make any affirmative misrepresentations, but merely permitted the caller to assume that he was Passarella. In addition, we note that the Supreme Court has always sanctioned a certain degree of deception or subterfuge on the part of law enforcement authorities as a necessary incident to the investigation of unlawful activities, which are, by their nature, covert and secretive. See Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952); United States v. Guidry, 534 F.2d 1220 (6th Cir.1976); see also 2 W. LaFave, Search and Seizure 677-83 (1978). What we said in United States v. Leja, 568 F.2d 493 (6th Cir.1977), is also relevant here. There, we "recognize[d] that the realities involved in curbing drug abuse require aggressive methods of enforcement, justifying conduct which in gentler circumstances might indeed be distasteful." Id. at 498. See also United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973).

In short, we do not believe that Moulton's failure to identify himself in any way vitiated the legality of his conduct under the circumstances of this case. Certainly, if the caller had been in Passarella's home and had spoken directly to Moulton or in his presence in...