US v. Carr

• Decision Date: 09 September 1992
• Docket Number: 92-53-05-CR-5-F and 92-53-09-CR-5-F.,No. 92-53-01-CR-5-F,92-53-01-CR-5-F
• Citation: 805 F. Supp. 1266
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: UNITED STATES of America v. Orin Nigel CARR, Dexter Fitzgerald Myhand, Kelvin D. Walker, Defendants.

805 F. Supp. 1266

UNITED STATES of America v. Orin Nigel CARR, Dexter Fitzgerald Myhand, Kelvin D. Walker, Defendants.

Nos. 92-53-01-CR-5-F, 92-53-05-CR-5-F and 92-53-09-CR-5-F.

United States District Court, E.D. North Carolina, Raleigh Division.

September 9, 1992.

Eric Evenson, Asst. U.S. Atty., for U.S.

Richard M. Roberts, West Orange, N.J., John L. Coble, Wilmington, N.C., for defendants.

MEMORANDUM

JAMES C. FOX, Chief Judge.

Orin Nigel Carr (Carr), Dexter Fitzgerald Myhand (Myhand) and Kelvin D. Walker (Walker) are three of ten defendants named in an indictment filed May 20, 1992, charging all defendants with involvement in a conspiracy to possess cocaine with the intent to distribute. Carr also is charged in Count Two with using a communication facility (a telephone) to facilitate cocaine distribution; both Walker and Myhand are charged in Count Three with the same offense; Walker and other co-defendants are charged in Counts Four and Five with additional counts of that offense.

Walker and Carr have filed motions to suppress; Walker has filed a motion to sever, both of which the Government opposes; Myhand has adopted the suppression motions. The court has denied all these motions by order of September 4, 1992. This Memorandum sets forth the rationale and analysis upon which that order was based.¹

Motions to Suppress

A. Searches

Carr's motion to suppress searches conducted (i) by consent and (ii) pursuant to a search warrant issued by United States Magistrate Judge Denson were DENIED by the undersigned in open court on August 10, 1992. The only evidence before the court indicates that one search was conducted pursuant to a valid consent, and the other pursuant to a search warrant issued by a federal magistrate judge upon probable cause.

B. Cordless Telephone Conversations

The undersigned conducted a lengthy hearing on the various motions to suppress cordless telephone conversations. Present at the hearing were Kelvin Walker, represented by Michael Howell; Dexter Myhand, represented by Jeffrey Starkweather; and Orin Carr, represented by John Coble and Richard Roberts. The Government was represented by Assistant United States Attorney, Eric Evensen.

The subject of these motions to suppress is the propriety of the Government's interception and recording of certain cordless telephone conversations. Specifically, in April, 1992, Raleigh Police Detective J.M. Lee, acting on information from an informer,² began conducting surveillance at Apartment 308 of Caliber Springs Apartments located at 520 Bridleridge Drive in Raleigh. The Government states that Detective Lee used portable hand-held scanners to monitor and intercept cordless telephone transmissions.

The task force used two scanners to monitor and intercept both incoming and outgoing cordless phone conversations only. Scanners are able to intercept transmissions of cordless phones, since they transmit "radio transmissions" through the air, unlike the standard land line telephone. The primary scanner was locked in on the main frequency used by cordless phones, and the secondary scanner was scanning the remaining low frequencies used by cordless phones.

Government's July 24, 1992, Memorandum at 2-3. Detective Lee recorded cordless telephone conversations regarding alleged controlled substance transactions, family and social life, travel, health problems, automobile maintenance and romantic and sexual relationships.

The telephone interception operation produced approximately 42 cassette tapes of conversations. Apparently, all the evidence upon which the Indictment is based arose directly or indirectly from information gleaned from the intercepted cordless telephone conversations.

The apartment in question was leased by co-defendant Dee Dee Hinton, in whose name the utilities, including the telephone, were listed. One telephone line serviced the apartment, although two telephones were in use — a regular land line telephone located in a bedroom and a cordless telephone installed on the kitchen wall. The cordless telephone is equipped with a "speaker-phone" or intercom feature. According to the Government, all the conversations involved at least one party using the cordless telephone. The Government did not have the ability to intercept telephone conversations occurring exclusively over land-lines, although some of the conversations apparently involved persons using land lines.³

Defendants challenge the use of evidence obtained by "eavesdropping" on their telephone conversations on two grounds. They contend first, that the Government's use of the evidence at trial would violate their right to privacy guaranteed by the Fourth Amendment of the United States Constitution, and second, that the evidence was obtained in violation of the Electronic Communications Privacy Act, as amended in 1986 (also referred to herein as the ECPA or '86 Act), 18 U.S.C. §§ 2510 et seq.⁴

The ECPA protects the privacy of certain telephone conversations as well as other types of communications.

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial ... if the disclosure of that information would be in violation of this chapter.

18 U.S.C. § 2515. Sections 2516 through 2519 contain procedures for obtaining authorization to intercept these communications. However, in this case, the Government concedes that it neither sought nor obtained any search warrants or court orders authorizing interception of the telephonic communications.⁵

Section 2510 contains key definitions:

(1) "wire communication" means any aural transfer 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 ... furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce and such term includes any electronic storage of such communication, but such term does not include the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit;

(2) "oral communication" means "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication." (12) "electronic communication" ... does not include —

(A) the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit;

(B) any wire or oral communication ...

(Emphasis added).

Definitionally, a cordless telephone conversation is neither a wire communication nor an electronic communication. Although defendants initially sought to exclude as "wire communications" conversations in which one person was using the bedroom land line, and one or more persons allegedly were communicating through the speaker-phone or intercom feature of the cordless phone without using the handset, and those in which no one was using the cordless kitchen telephone, the evidence presented at the suppression hearing established that, unless the cordless telephone was in use, broadcasting radio waves from the base to the handset and back, the agents were unable to intercept the conversation. Stated another way, only conversations carried by radio waves were overheard.⁶

1. The Technology

Cordless telephones, as well as cellular telephones, are regarded as "wireless" telephones, but their technical features result in significant differences in the ability to intercept their transmissions. Cellular telephones, such as those more and more frequently seen in private automobiles or in briefcases, transmit messages by microwaves utilizing a series of overlapping "cells" which comprise a single cellular system. See Richman, Voices That Go Bump in the Night: Conflicting Rights Under the Wiretap Statutes, 11 SETON HALL LEGIS. J. 171, 174 (1987). "When a caller dials a number on a cellular telephone, a transceiver sends signals over the air on a radio frequency to a cell site. From there the signal travels over phone lines or a microwave to a computerized mobile telephone switching office ("MTSO") or station. This technology makes many channels available and reuses frequencies in non-adjacent cells to provide mobile communications for thousands of users simultaneously." S.Rep. No. 541, 99th Cong., 2d Sess. 9 (1986) (reprinted in 1986 U.S.C.C.A.N. 3555, 3563). The mobile transmitters, low power signals, and the constant switching of frequencies as users move from cell to cell render eavesdropping on a cellular phone conversation relatively difficult. Id. However, the radio frequencies utilized readily are received by commercially available, relatively inexpensive scanners, and also may be picked up by ham radio equipment as well as ordinary television sets and VCR's. Jesse, How Not to Protect Communications, N.Y. TIMES, Sept. 13, 1986, at 27, col. 2 (Op.Ed.).

It is settled that cellular telephone transmissions are protected under the ECPA, which proscribes unauthorized intentional interception of cellular telephone conversations. See 18 U.S.C. § 2511(4)(b)(i) ($500 fine for intentional eavesdropping on a communication from "the radio portion of a cellular telephone communication"); S.Rep. No. 541, supra, at 11, 1986 U.S.C.C.A.N. p. 3565 ("cellular communications — whether they are between two cellular telephones or between a cellular telephone and a `land line' telephone — are included in the definition of `wire communications' and are covered by the statute. As noted below, the bill distinguishes between cordless and cellular telephones.").

On the other hand, it is becoming settled that...