U.S. v. Santillo

• Citation: 507 F.2d 629
• Decision Date: 09 January 1975
• Docket Number: No. 74-1580,74-1580
• Parties: UNITED STATES of America v. Samuel J. SANTILLO, Jr., et al. Appeal of Ronald F. BUCHERT.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 629

507 F.2d 629

UNITED STATES of America v. Samuel J. SANTILLO, Jr., et al.

Appeal of Ronald F. BUCHERT.

No. 74-1580.

United States Court of Appeals, Third Circuit.

Argued Nov. 1, 1974.

Decided Jan. 9, 1975.

Stanton D. Levenson, Watzman, Levenson & Snyder, Pittsburgh, Pa., for appellant.

Richard L. Thornburgh, U.S. Atty., Charles F. Scarlata, James J. West, Asst. U.S. Attys., Pittsburgh, Pa., for appellee.

Appeal from the Judgment and Order of the United States District Court for the Western District of Pennsylvania.

Before FORMAN, ALDISERT and ROSENN, Circuit Judges.

OPINION OF THE COURT

FORMAN, Circuit Judge.

Appellant Ronald F. Buchert and several co-defendants were indicted on three counts in the United States District Court for the Western District of Pennsylvania. Having waived his right to trial by jury, appellant was tried to the court and convicted on the second and third counts ¹ of the indictment which charged (1) the unlawful distribution of methamphetamine on September 1, 1973 and (2) the possession of methamphetamine with intent to distribute it on September 28, 1973, both violations of 21 U.S.C. 841(a)(1) ² and 18 U.S.C. 2. ³ In each of these transactions appellant allegedly supplied methamphetamine powder to co-defendant Frank J. Dorsey ⁴ who in turn sold, or intended to sell, the powder to Francis J. Schmotzer, a federal undercover agent. Agent Schmotzer never dealt face-to-face with appellant, but only through Dorsey.

Among pretrial motions made on appellant's behalf was one to suppress evidence obtained by the Government's warrantless 'interception' of telephone communications between appellant and Agent Schmotzer on September 12 and September 28, 1973, both of which were alleged to have been recorded by the Government.

The grounds for the motion were asserted to be that

(1) the telephonic communications were seized without the Government having previously obtained a court order pursuant to the Omnibus Crime Control Act, Title 3, Wiretap Provisions (18 U.S.C. 2510 et seq.);

(2) they were seized without the appellant's consent;

(3) they were seized in violation of appellant's Fourth Amendment constitutional rights; and

(4) 18 U.S.C. 2511(2)(c), which authorizes consensual interceptions, is unconstitutional.

The District Judge denied the motion, saying:

Defendant Buchert's motion to suppress telephone tapes of conversations between himself and an undercover agent will also be denied. Whatever expectation of privacy defendant Buchert had by virtue of Katz v. U.S., 389 U.S. 347 (88 S.Ct. 507, 19 L.Ed.2d 576) (1967), he gave up when he confided in the agent. This is clearly the import of Lopez v. U.S., 373 U.S. 427 (83 S.Ct. 1381, 10 L.Ed.2d 462) (1953). U.S. v. White, 401 U.S. 745, 753 (91 S.Ct. 1122, 28 L.Ed.2d 453) (1971). The recording of conversations between undercover agents and suspected wrongdoers may be a distasteful example of law enforcement activity, but in this instance it was not an activity which can be found to have violated defendant's constitutional rights. ⁵

At trial, the prosecution connected appellant to the transactions by introducing evidence of the two telephone conversations he initiated with Agent Schmotzer, one linking him to the September 1 sale and the other connecting him to the attempted sale of September 28. On this appeal, Buchert submits that his conviction must be set aside because of the trial judge's failure to grant his motion to suppress evidence of the two incriminating telephone conversations.

Thus, the question presented by this appeal is whether one who engages in a telephone conversation may justifiably expect that the participant on the other end of the line will not record or disclose the substance of what is said. We hold in this case that such expectations of privacy are not 'justifiable' within the meaning of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), and therefore are not entitled to the protection of the Fourth Amendment.

Conversation #1, linking appellant to the September 1 sale.

Agent Schmotzer's initial contact with appellant was by way of the September 12, 1973 telephone conversation during which appellant identified himself as the source of supply for the methamphetamine sold on September 1. Acting without a warrant, Agent Schmotzer taped the conversation, but due to an equipment malfunction the recording was inaudible. Agent Schmotzer, however, made extensive notes of the conversation from which he was able to testify at trial. As to this first conversation, appellant's challenge is simply that the Fourth Amendment prevents Agent Schmotzer from publicly disclosing information that was given to him in confidence.

Appellant's subjective expectation that Agent Schmotzer would not repeat the content of their discussion is not dispositive of whether the constitutional safeguards apply. See Katz v. United States, supra, at 361, 88 S.Ct. 507 (concurring opinion of Harlan, J.). The Fourth Amendment's protective umbrella, as interpreted by Katz, shields only those expectations of privacy which are 'justifiable.' ⁶ Measuring by this objective privacy standard, appellant had no right to assume that Agent Schmotzer would not relate the conversation to others. The possibility of repetition is a well-known risk that the prudent man weighs before disclosing confidential information. Moreover, under the facts of this case the risk of repetition was particularly strong. When the incriminating conversation took place appellant's only knowledge of Agent Schmotzer was that he had made a single purchase of methamphetamine from Mr. Dorsey.

Although United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), was decided according to pre-Katz interpretations of the Fourth Amendment, the principles espoused by a plurality ⁷ therein are appropriate here:

Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), which was left undisturbed by Katz, held that however strongly a defendant may trust an apparent colleague, his expectations in this respect are not protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with the authorities. (The Fourth Amendment) affords no protection to 'a wrongdoer's misplaced belief that a person to whom the voluntarily confides his wrongdoing will not reveal it.' Hoffa v. United States, at 302, 87 S.Ct. at 413. No warrant to 'search and seize' is required in such circumstances. ⁸

We conclude that appellant's disclosures to Agent Schmotzer during the telephone conversation of September 12, 1973 which connected appellant to the September 1 sale were not protected by the Fourth Amendment.

Conversation #2, linking appellant to the attempted sale of September 28.

On September 28, 1973, the same date as the attempted sale, appellant again spoke with undercover Agent Schmotzer by telephone. Acting without a warrant, Agent Schmotzer successfully recorded the conversation during which appellant identified himself as the source of supply for the methamphetamine to be sold later that day. In addition to Agent Schmotzer's testimony, the recording itself was played at trial, both over appellant's objection.

In considering the admissibility of 'conversation #1,' we concluded that Agent Schmotzer could properly take notes of his conversations with appellant and subsequently testify as to the content of their discussions. Our sole remaining question is whether the Fourth Amendment protects appellant when, instead of merely repeating what was said, the undercover agent records the conversation and is permitted to replay it at trial. Appellant concedes that only the constitutional issue is involved since electronic interceptions by a party to the conversation are expressly exempted from the warrant requirements of the Omnibus Crime Control Act. 18 U.S.C. 2511(2)(c). ⁹

Prior to its decision in Katz, the Supreme Court consistently upheld various forms of electronic eavesdropping where one party to the intercepted conversation gave prior consent. See Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952). While we agree that the trespassory concepts ¹⁰ prevailing at the time these cases were decided have since been discredited, ¹¹ it does not necessarily follow that the holdings themselves are no longer sound law. The continuing validity of Lopez, Rathbun and On Lee remains a subject of active detate. ¹²

The governmental activity challenged here is most closely related to the participant monitoring discussed in the Lopez case. Both here and in Lopez a participant in the incriminating coversation secretly recorded what was said and that recording was later introduced as evidence against one of the speakers. ¹³ In analyzing this factual setting, the Supreme Court found no invasion of the speaker's Fourth Amendment guarantees:

Once it is plain that (the agent) could properly testify about his conversation with Lopez, the constitutional claim relating to the recording of that conversation emerges in proper perspective . . .. This case involves no 'eavesdropping' whatever in any proper sense of that term. The Government did not use an electronic device to listen in on conversations it could not otherwise have heard. Instead, the device was used only to obtain the most reliable evidence possible of a conversation in which the Government's own agent was a participant and which that agent was fully entitled to disclose . . ..

Stripped to its essentials, petitioner's argument amounts to saying that he has a constitutional right to rely on possible flaws in the agent's memory . . .. We think the risk that petitioner took in offering a bribe to (the agent) fairly included the risk that the offer would be accurately reproduced in co...