Professional Documents
Culture Documents
United States v. Samuel J. Santillo, Jr. Appeal of Ronald F. Buchert, 507 F.2d 629, 3rd Cir. (1975)
United States v. Samuel J. Santillo, Jr. Appeal of Ronald F. Buchert, 507 F.2d 629, 3rd Cir. (1975)
2d 629
(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.);
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11
Thus, the question presented by this appeal is whether one who engages in a
11
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.
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13
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.
14
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.
15
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:
16
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
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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.
20
21
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
concepts10 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
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23
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 . . ..
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The extent to which appellant's disclosures compromised his own secrets was
30
Inescapably, one contemplating illegal activities must realize and risk that his
companions may be reporting to the police. If he sufficiently doubts their
trustworthiness, the association will very probably end or never materialize.
But if he has doubts, or allays them, or risks what doubt he has, the risk is his . .
.. Given the possibility or probability that one of his colleagues is cooperating
with the police, it is only speculation to assert that the defendant's utterances
would be substantially different or his sense of security any less if he also
thought it possible that the suspected colleague is wired for sound. At least
there is no persuasive evidence that the difference in this respect between the
electronically equipped and the unequipped agent is substantial enough to
require discrete constitutional recognition . . ..14
31
In addition, at least seven other circuit courts have applied Katz and reached a
decision similar to the one we reach here. 15
32
We are not unmindful of Justice Harlan's observation, in his White dissent, that
expectations of privacy, and the risks a speaker assumes, are largely reflections
of pre-existing Fourth Amendment law. 401 U.S. at 786, 91 S.Ct. 1122. Thus,
Justice Harlan reasoned, instead of merely examining a particular individual's
expectations, any Fourth Amendment analysis must ultimately focus on the
impact a given police practice will have on the public's sense of security-- the
fundamental concern of the Fourth Amendment. Id. In terms of the instant case,
the underlying issue presented is whether we are willing to burden the average
person with the threat of participant recording in order to provide the police
with an admittedly valuable law enforcement tool.16 We are conviced that
publications of confidential information by the invited participant, as in this
case, do not present the same kind of threat to a free society as was presented by
the uninvited listener in Katz.17 Warrantless electronic eavesdropping without
the knowledge of either party to the conversation produces an atmosphere of
police omniscience analogous to that produced by the general warrant of a bygone era. Cf. Katz v. United States, supra at 358-359, 88 S.Ct. 507. See
generally Stanford v. Texas, 379 U.S. 476, 482-484, 85 S.Ct. 506, 13 L.Ed.2d
431 (1965). It is this broad transgression, different from that presented by the
instant case, against which the Fourth Amendment is designed to protect. A
more limited threat to the values of a free society arises from the risk that an
invited participant may be electronically recording one's conversation for later
replaying. We concede that, in the latter case, the conversation may eventually
reach the same number and kind of people as if the electronic intrusion had
been accomplished by an uninvited third party. The significant difference,
however, is that private discussions are more likely to inhibited by the
continuous threat of an uninvited listener.
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34
We hold that the district judge properly denied appellant's motion to suppress
the testimony and recorded evidence obtained during Agent Schmotzer's
telephone conversations. The judgment below will be affirmed.
18 U.S.C. 2 provides:
(a) Whoever commits an offense against the United States or aids, abets,
counsels, commands, induces or procures its commission, is punishable as a
principal.
In Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969),
the Supreme Court held that the principles announced in Katz were not to be
applied retroactively. Since the governmental activity challenged in the instant
case took place long after December 18, 1967, the date Katz was decided, the
Katz principles must be applied. Compare, e.g., United States v. White, 401
U.S. 745, 754, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971)
Only four of the nine participating Justices joined in the principal opinion
authored by Justice White. Justices Black and Brennan filed separate
concurring opinions. Separate dissents were filed by Justices Douglas, Harlan
and Marshall
10
Under the trespass doctrine only physical intrusions were prohibited by the
Fourth Amendment. Goldman v. United States, 316 U.S. 129, 135-136, 62
S.Ct. 993, 86 L.Ed. 1322 (1942); Olmstead v. United States, 277 U.S. 438, 466,
48 S.Ct. 564, 72 L.Ed. 944 (1928). Thus, electronic surveillance was within the
purview of the Fourth Amendment only in those instances where the listening
device physically penetrated the speaker's premises. See, e.g., Silverman v.
United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961)
11
See Katz v. United States, 389 U.S. 347, 352-353, 88 S.Ct. 507, 19 L.Ed.2d 576
(1967). '(The trespass) limitation on Fourth Amendment protection is, in the
present day, bad physics as well as bad law, for reasonable expectations of
privacy may be defeated by electronic as well as physical invasion.' Id. at 362,
88 S.Ct. at 517 (Harlan, J., concuring)
Even prior to Katz, however, the Supreme Court had indicated some
dissatisfaction with the trespassory concepts. See Berger v. New York, 388
U.S. 41, 45-51, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967); Silverman v. United
States, 365 U.S. 505, 511-513, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961).
12
Four Justices among the Supreme Court's current membership have indicated
their belief that Lopez and On Lee survive Katz. See United States v. White,
401 U.S. 745, 750-752, 91 S.Ct. 1122, 28 L.Ed.2d 453. Justices Brennan,
Douglas and Marshall, on the other hand, argue that Katz implicitly overrules
On Lee and perhaps also Lopez. See Id. at 755-756, 91 S.Ct. 1122 (Brennan, J.,
dissenting), at 758-760, 91 S.Ct. 1122 (Douglas, J., dissenting) and at 795-796,
91 S.Ct. 1122 (Marshall, J., dissenting)
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15
See United States v. Bonanno, 487 F.2d 654, 658 (2d Cir. 1973); United States
v. Dowdy, 479 F.2d 213, 229 (4th Cir. 1973), cert. denied, 414 U.S. 823, 91
S.Ct. 124, 38 L.Ed.2d 56 (1973); Ansley v. Stynchcombe, 480 F.2d 437, 441
(5th Cir. 1973); United States v. Lippman, 492 F.2d 314, 318 (6th Cir. 1974);
Meredith v. Gavin, 446 F.2d 794, 797 n. 3 (8th Cir. 1971); Holmes v. Burr, 486
F.2d 55 (9th Cir. 1973), cert. denied, 414 U.S. 1116, 94 S.Ct. 850, 38 L.Ed.2d
744 (1973); United States v. Quintana, 457 F.2d 874 (10th Cir. 1972), cert.
denied, 409 U.S. 877, 93 S.Ct. 128, 34 L.Ed.2d 130 (1972)
16
Justice Harlan did not actually apply his Fourth Amendment balance to the
participant recording situation. He noted only that 'distinctions do, however,
exist between Lopez, where a known Government agent uses a recording
device, and (a case involving) third-party overhearing,' a practice which he
considered unconstitutional. United States v. White, 401 U.S. 745, 788 n. 24,
91 S.Ct. 1122, 1145, 28 L.Ed.2d 453 (Harlan, J., dissenting)
17