United States v. Hall

• Decision Date: 19 October 1973
• Docket Number: 72-1737.,No. 72-1841,72-1842,72-1841
• Citation: 488 F.2d 193
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Merrill HALL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William King NICHOLS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James Kline DEVER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

488 F.2d 193 (1973)

UNITED STATES of America, Plaintiff-Appellee, v.John Merrill HALL, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v.William King NICHOLS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v.James Kline DEVER, Defendant-Appellant.

Nos. 72-1841, 72-1842, 72-1737.

United States Court of Appeals, Ninth Circuit.

October 19, 1973.

John J. Flynn(argued), Thomas A. Thinnes, Richard L. Parrish of Flynn, Kimerer, Thinnes & Galbraith, Phoenix, Ariz., for appellant Dever.

Benjamin Lazarow, (argued), Tucson, Ariz., for appellants Hall and Nichols.

David S. Hoffman, Asst. U. S. Atty., (argued), William C. Smitherman, U. S. Atty., James M. Wilkes, Asst. U. S. Atty., Tucson, Ariz., for plaintiff-appellee.

Before WRIGHT and WALLACE, Circuit Judges, and FERGUSON,^*District Judge.

WALLACE, Circuit Judge:

Hall, Nichols and Dever were convicted of possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and conspiracy to commit that offense in violation of 21 U.S.C. § 846.Appellants contend that the electronic surveillance of their radio-telephone conversations which led to their arrests violated the Communications Act of 1934(particularly, 47 U.S. C. § 605), Title III of the Omnibus Crime Control and Safe Streets Act of 1968,¹ and the Fourth Amendment.Therefore, they assert that the use of the conversations should have been suppressed.The district court was unpersuaded.We reverse.

Hall had radio-telephones installed in two automobiles.In early April, 1971, a Tucson housewife, who listens to her radio while doing housework, intercepted the appellants' conversations on her eight-band, 150-170 megacycle radio.The radio is not unique.The public may purchase similar sets on the open market and can listen to police and fire broadcasts, calls placed over the telephone companies' mobile telephone network, etc.After eavesdropping for less than a month, she reported what she considered to be suspicious conversations to the Arizona Department of Public Safety(DPS).

She continued to monitor the conversations and made reports to the DPS until at least May 21 when the DPS began its surveillance.Assuming that the period from the end of April until the 21st of May is not attributed to the DPS, there was still a five-week span until the appellants' arrests on July 2 during which the DPS conducted warrantless electronic surveillance of their conversations which led to their arrests.

The arrests and convictions are inextricably bound to that warrantless search and seizure of their conversations.²That the state officers made the searches and arrests and then turned the case over to federal authorities for prosecution does not prevent the question from being raised.Benanti v. United States, 355 U.S. 96, 100, 78 S.Ct. 155, 2 L.Ed.2d 126(1957).Therefore, affirmance of their convictions depends upon a determination of the validity of these searches.

I.Section 605.

With certain exceptions not pertinent here, 47 U.S.C. § 605 forbids any person to intercept and divulge wire communications.In United States v. Sugden, 226 F.2d 281, 285(9th Cir.1955), aff'd per curiam, 351 U.S. 916, 76 S.Ct. 709, 100 L.Ed. 1449(1956), we held "that unless the Congress orders otherwise" the exclusionary rule applies when non-FCC governmental agents or private individuals intercept non-public broadcasts without consent in violation of § 605.The first question before us is whether Congress has ordered otherwise.

Although only a few words were added to § 605 by the Crime Control Act,³ the legislative history of the Act clearly states that the amended section"is not intended merely to be a reenactment of section 605.The new provision is intended as a substitute."S.Rep.No.1097, 90th Cong., 2d Sess., 1968 U.S.Code Cong.andAdmin.News 2196.The legislative history also explicitly shows that Congress intended to exclude law enforcement officers from the purview of the new § 605.The Senate Judiciary Committee stated:

The new section is designed to regulate the conduct of communications personnel.It also provides that no person not authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person."Person" does not include a law enforcement officer acting in the normal course of his duties.But seeUnited States v. Sugden (226 F.2d 281(9th1955), affirmed per curiam,76 S.Ct. 709, 351 U.S. 916100 L.Ed. 1449(1956)).

Id. at 2197(emphasis added to text).It is obvious that the legislature wanted law enforcement personnel to be governed exclusively by Chapter 119 of Title 18.Therefore, because the critical communications were intercepted by the lawmen, § 605 offers no impediment.We need not reach the question of the involvement of the housewife.⁴

II.Chapter 119 of Title 18.

Whether the challenged interception should be suppressed demands close scrutiny of the statutory requirements concerning wire and oral communications added by Title III of the Crime Control Act.SeeChapter 119,18 U.S.C. § 2510 et seq.If the interception in question falls within the parameters of Chapter 119, the warrantless surveillance must be suppressed.18 U.S.C. § 2515.

The threshold question is whether these radio-telephone conversations constitute an "oral communication" or a "wire communication."The answer is critical because the definition of oral communication includes the expectation of privacy language derived from Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576(1967).In order for an oral communication to be protected by the Act, the speaker must have "an expectation that such communication is not subject to interception under circumstances justifying such expectation . . . ."18 U.S.C. § 2510(2).A "wire communication" has no such restriction in its definition.It is defined as "any communication made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception . . . ."18 U.S.C. § 2510(1).

Obviously, there is a reason for the more restrictive definition of oral communications.When a person talks by telephone, he can reasonably assume privacy.That assumption may often be invalid for non-wire communications.Therefore, it is incumbent upon the participants in an oral communication to make a reasonable estimate of the privacy afforded them by their particular circumstances.

The definition of wire communication is not free from ambiguity."Communication made in whole or in part . . . through the use of facilities . . . by the aid of wire . . . between the point of origin and the point of reception . . . ." could be interpreted in several ways.For example, it could be argued that if any wire is used to aid the communication, it must be deemed a wire communication.If this were followed to its conclusion, the use of a radio would be included in the definition because some wires are contained in the radio transmitter and receiver—thus the communication would be aided "in part" by the use of wire.However, such an interpretation would be inconsistent with the language of the immediately succeeding section which permits an agent of the FCC, in certain circumstances, "to intercept a wire communication, or oral communication transmitted by radio . . . ."18 U.S.C. § 2511(2)(b).⁵

Broadcasting communications into the air by radio waves is more analogous to carrying on an oral communication in a loud voice or with a megaphone than it is to the privacy afforded by a wire.As with any broadcast into the air, the invitation to listen is afforded to all those who can hear.In the instant case, the eavesdroppers merely tuned their radio receivers to the proper station.It is obvious that conversations initiated from a radio-telephone more logically fall within the category of "oral communication."

By reading the sections together, we can only conclude that the Congress did not mean that every conversation aided in any part by any wire would be a wire communication.As a radio broadcast must be deemed an oral conversation, we believe it would strain the legislative intent to hold that conversations emanating from a radio telephone would not be treated similarly.

However, that does not end our inquiry.Although the record is not clear, it appears that some conversations were between two radio telephones while others were between a radio telephone and a regular land-line telephone.While the former are within the definition of oral communications, the use of a land-line telephone at one end of the conversation raises a serious question as to the defined category in which such a communication belongs.While logic may dictate that the same rule should apply when a conversation crosses the airways but initiates or terminates on a land line, we are not free to reach that result if the legislative intent is to the contrary.

The legislative history states:

Paragraph (1) defines "wire communication" to include all communications carried by a common carrier, in whole or in part, through our Nation\'s communications network.The coverage is intended to be comprehensive.

S.Rep.No.1097, 90th Cong., 2d Sess., 1968 U.S.Code Cong.andAdmin.News 2178.Based upon this indication of Congressional intent, we are forced to conclude that, when part of a communication is carried to or from a land-line telephone, the entire conversation is a wire communication and a search warrant is required.

We realize that our classification of a conversation between a mobile and a land-line telephone as a wire communication produces what appears to be an absurd result.These conversations were intercepted by an ordinary radio receiver and not by a phone tap.Logically they should be afforded no more protection than...