U.S. v. Rose, s. 81-1140

• Decision Date: 27 January 1982
• Docket Number: 81-1258,Nos. 81-1140,s. 81-1140
• Citation: 669 F.2d 23
• Parties: UNITED STATES of America, Appellee, v. Robert ROSE, Sr., Defendant, Appellant. UNITED STATES of America, Appellee, v. James HILL, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 23

669 F.2d 23

UNITED STATES of America, Appellee, v. Robert ROSE, Sr., Defendant, Appellant.

UNITED STATES of America, Appellee, v. James HILL, Defendant, Appellant.

Nos. 81-1140, 81-1258.

United States Court of Appeals, First Circuit.

Argued Nov. 4, 1981.

Decided Jan. 27, 1982.

John Wall and Nancy Gertner, Boston, Mass., with whom Ronald Kovner, Washington, D. C., Cullen & Wall, Harvey A. Silverglate, and Silverglate & Gertner, Boston, Mass., were on joint brief, for defendants, appellants.

John H. LaChance, Asst. U. S. Atty., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for appellee.

Before COFFIN, Chief Judge, DAVIS, Judge, ^* BREYER, Circuit Judge.

COFFIN, Chief Judge.

Appellants James Hill and Robert Rose seek reversal of their convictions for possession with intent to distribute marijuana and for conspiring to import and distribute marijuana. 21 U.S.C. §§ 952, 955a, 960, 963; 18 U.S.C. § 2.

On October 29, 1981, an employee in the monitoring branch of the enforcement division of the Federal Communications Commission (FCC) intercepted what appeared to him to be a suspicious radio transmission. It was a point-to-point communication transmitted on the "ham" radio operator's band, but contrary to FCC regulations which limit that band to transmissions on land, it seemed to originate from and be sent to points off the Atlantic coast. Although the FCC confirmed within an hour that the transmission was from a marine source, the employee did not institute actions to rectify the violation of the regulations but instead continued to listen and take notes. He had concluded that the transmissions referred to contraband trafficking.

After five hours of overhearing, FCC officials turned the information accumulated through the interception over to the United States Coast Guard which, after listening further, directed one of its cutters to the location of the suspected "drop site". As the cutter approached in the dark on the night of October 30, it saw two vessels side by side, apparently transferring bales of marijuana from one to the other. Upon hearing the Coast Guard's announcement of its presence, the people on board the boats started throwing bales overboard. When the Coast Guard boarded after seeing bales on the ships, it arrested twelve Americans and ten Colombian nationals.

Two days after the arrest, the government turned one of the Colombians, Edgar Danies-Ocampo, Jr., over to the Immigration and Naturalization Service for deportation, a deportation that occurred with more haste than usual. The government pointed to Danies-Ocampo's status as a 17-year-old minor to justify its decision to drop charges and instigate deportation proceedings.

Appellants argue that the trial court should have granted their pre-trial motion for suppression of the marijuana because the interception by the FCC, its decision to turn the information obtained by interception over to the Coast Guard, and the Coast Guard's subsequent interception violated Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510 et seq., the federal wiretapping statute. In addition, they appeal the trial court's denial of their motion to dismiss the indictment. They had moved to dismiss on the grounds that the government's decision to deport Danies-Ocampo without notice to appellants violated their rights to compulsory process and due process because it denied them the opportunity to interview the only individual who witnessed the events, was not indicted, and had not agreed to be a witness for the government.

In ruling on appellants' claim that the interception of the point-to-point transmissions violated Title III and therefore required suppression of the marijuana seized as a result, the threshold and, in this instance, the determinative issue is whether the communications intercepted come within the protection of the Act. Although Title III establishes extensive restrictions on the interception of communications, it applies only to those communications deemed to be either "wire" or "oral" communications. See 18 U.S.C. § 2511. Obviously not a wire communication, a point-to-point radio transmission is protected only if it falls within the definition of oral communication-"any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such exception", 18 U.S.C. § 2510(2). This definition has been interpreted to require that the speaker have a subjective expectation of privacy that is objectively reasonable. See Holman v. Central Arkansas Broadcasting Co., 610 F.2d 542, 544-45 & n.3 (8th Cir. 1979); United States v. Pui Kan Lam, 483 F.2d 1202, 1206 (2d Cir. 1973), cert. denied, 415 U.S. 984, 94 S.Ct. 1577, 39 L.Ed.2d 881 (1974); United States v. McIntyre, 582 F.2d 1221, 1223 (9th Cir. 1978); S.Rep.No.1097, 90th Cong., 2d Sess., reprinted in (1968) U.S.Code Cong. & Admin.News 2112, 2178.

The trial court, trying the case without a jury, found that appellants had neither a subjective expectation of privacy nor a reasonable objective expectation. Applying the clearly erroneous standard of review, as we must when a determination of fact such as this is appealed, United States v. Hall, 488 F.2d 193, 198 (9th Cir. 1973), we cannot find that the trial court erred. The manner in which the communications were transmitted indicates that appellants were aware that their communications were likely to be intercepted. They switched frequencies during the course of their transmissions; they did not identify the stations they were operating as required by the FCC; they did not identify themselves; and lastly, they chose to use code from time to time to disguise the content of their communications. This combination of factors is more than adequate to allow us to uphold the trial court's finding that appellants could not have a genuine subjective expectation of privacy. Appellants make the obvious argument that the very extent of the precautions taken by them to hide their identity and message denotes their subjective expectation of privacy. But so to conclude would confuse expectation and hope. Faced with the only available, rather exposed means of communication, appellants chose to take precautions because they did not expect privacy but hoped for the best.

Even if the subjective expectation had been proven, that expectation would not have been reasonable when judged by an objective standard. Appellants were broadcasting on the ham radio frequency, commonly known to be a means of communication to which large numbers of people have access as receivers. A reasonable person would not expect that words uttered over the ham radio frequency would be heard only by those few individuals for whom the communication was specifically intended. See United States v. Sugden, 226 F.2d 281, 286 (9th Cir. 1955) (dictum), aff'd, 351 U.S. 916, 76 S.Ct. 709, 100 L.Ed. 1449 (1956). Although we acknowledge that circumstances justifying an expectation of perfect privacy are not necessary for protection to attach, see Lee v. Florida, 392 U.S. 378, 381 n.5, 88 S.Ct. 2096, 2098 n.5, 20 L.Ed.2d 1166 (1968), the objective expectation of privacy in these circumstances is too minimal to deserve recognition.

The fact that Title III has a provision specifically allowing FCC employees to monitor communications in the normal course of their employment, 18 U.S.C. § 2511(2)(b), does not change our finding that the transmissions at issue were not communications falling within the scope of Title III. Although appellants argue that this exception for FCC employees creates the expectation that FCC officials will not monitor communications in other instances, this reasoning approaches the problem from the wrong direction. Only if the communication is one that exhibits the required expectations of privacy does the exception for FCC employees come into play. That exception cannot create an expectation that then affects the scope of the coverage of Title III.

Nor does the existence of an independent statutory provision regulating the divulgence of the contents of radio communications, 47 U.S.C. § 605, alter our conclusion. Prior to the passage of Title III, two-way radio communications were protected from interception or disclosure under § 605 regardless of the ease with which others could monitor the transmissions or any expectation of privacy. United States v. Sugden, supra, 226 F.2d at 286; United States v. Laughlin, 226 F.Supp. 112, 114 (D.D.C.1964). When Congress passed Title III, however, it simultaneously amended § 605 to state that § 605 does not apply to communications that may be...