Goodwin v. State

267 S.E.2d 488, 154 Ga. App. 46, 1980 Ga. App. LEXIS 2039

• Court: Court of Appeals of Georgia
• Decided: March 19, 1980
• Docket: 58771
• Status: Published

Opinions

Birdsong, Judge.

Appellants Goodwin and Manley on interlocutory appeal challenge the trial court’s denial of their motion to suppress evidence which was overheard through an electronic "body bug” worn by an informant, and evidence seized from a rented police car which was lent to the appellant at appellant’s suggestion for the sole purpose of picking up a load of marijuana to sell to the informant. The evidence shows that Sgt. Kleckly of the Atlanta Police Department rented an automobile, a Monte Carlo, at the Atlanta Airport and turned it over to the Detective Archangeles. Archangeles and an informant drove the Monte Carlo to Clayton County to a restaurant parking lot. There they met with detectives from Cobb, DeKalb, and Clayton Counties and "decided how the deal would basically go.” A meeting had been arranged between the informant and appellant Goodwin. At this time, an electronic body bug was placed on the informant by one of the other detectives at the restaurant. Over objection, Archangeles was permitted to testify at the motion to suppress hearing that the informant stated he had no aversion to wearing the body bug, and that he would feel more comfortable with it on and would prefer to wear it. The informant, Under surveillance, drove the Monte Carlo to a nearby gas station where he met appellant Goodwin and followed him to a shopping center parking lot. Appellant Goodwin then made a telephone call, which was not overheard; but his statements to the informant immediately following that phone call were overheard through the electronic listening device by the nearby detectives. At the motion to suppress hearing, Detective Sproat testified from memory that the appellant said: "It won’t take but a few minutes for me to go to the location and load the dope [or weed] and be back,” and that appellant then said that the best and easiest way to do the deal would be for him to take the other’s (the informant’s) car and just switch cars when he returned with the dope, that the deal would go down a lot quicker if they did it that way; and that appellant told the informant "you wait in my car and I’ll take your car and load up the dope and be back.” Appellant was followed surreptitiously to a nearby house as he drove in what was, unbeknownst to him, a car rented by the police; he backed into the garage and emerged a few minutes later with appellant Manley as a passenger, and drove back to the shopping center and parked beside the informant. As appellants got out of the car, the police converged on them, placed them under arrest, patted them down, and took the keys away. The police unlocked the trunk and seized three bales of marijuana. At the hearing on motion to suppress, Detective Sproat stated that they had not gotten or attempted to get a search warrant for the automobile because they did not need one for something that is under police control. Except for the statements overheard through the body bug hidden on the informant, which were testified to solely from memory by Detective Sproat and except for the circumstances we have described, there was no evidence of any illegal activity. The informant was not called as a witness.

Appellant contends that the warrantless search of the automobile was improper because the appellant had a reasonable expectation of privacy in the automobile which the informant lent to him, and, moreover, was without probable cause because no proper foundation was laid for the admissibility of appellant’s electronically-overheard statements. The state contends that the police had an unquestionable right to search their own property, and that, in any event, probable cause existed because of Goodwin’s overheard admission that he was going to pick up the dope and' bring it back, coupled with all the other circumstances observed by the police. Held:

1. (a) Appellants contend that the testimony as to the body bug communication is governed by Steve M. Solomon Jr., Inc. v. Edgar, 92 Ga. App. 207, 211 (3) (88 SE2d 167), which held that a proper, specifically stated foundation must be laid for use of tapes of recorded conversation; appellants argue that it would be absurd to hold that evidence of an unrecorded communication is governed by any lesser standard. The matter here under consideration is governed by Code § 26-3006, which limits the proscriptions of Code § 26-3001, prohibiting the clandestine surveillance or overhearing of private conversations of another. Code § 26-3006 authorizes the "interception, recording and divulging of a message sent by telephone ... or any other means of communication when . . . the message shall be initiated or instigated by a person and the message [constitutes] the commission of a crime or is directly in furtherance of a crime, provided at least one party thereto shall consent.” (Emphasis supplied.) State v. Birge, 240 Ga. 501 (241 SE2d 213); Cross v. State, 128 Ga. App. 837 (198 SE2d 338). It is settled that Code § 26-3006 allows law enforcement officers to intercept, record, and divulge the conversation, where at least one party thereto consents, and where the conversation is a crime or is in furtherance of a crime. Mitchell v. State, 239 Ga. 3, 5 (235 SE2d 509). Furthermore, a state agent may divulge contents of conversations with an accused by carrying radio equipment which simultaneously transmits conversations to other agents monitoring the transmission frequency. Cross, supra. The police officers who are simultaneously listening to the conversation through electronic amplification of the conversation may testify as to what they have heard, since the import of the electronically-aided eavesdropping is the same as if the officers were eavesdropping outside an open window or sitting in the same room. On Lee v. United States, 343 U. S. 747, 754 (72 SC 967, 96 LE 1270); see also United States v. White, 401 U. S. 745, 751-753 (91 SC 1122, 28 LE2d 453); Goldman v. United States, 316 U. S. 129, 134 (62 SC 993, 86 LE 1322). As was said in Irvine v. California, 347 U. S. 128, 131 (74 SC 381, 98 LE 561), "All that was heard. was what an eavesdropper . . . might have heard. We do not suppose it is illegal to testify to what another person is heard to say merely because he is saying it into a telephone.” When the police agents testify to what they have heard in this manner, such evidence is direct, primary evidence of a conversation overheard through a device which by its nature does nothing more than amplify and transmit, much as the telephone does (see Irvine v. California, We have found no authority which requires testimony concerning a telephone conversation to be authenticated by a showing that the user of the telephone is familiar with the mechanics of that device and that the telephone was in working order and not defective. Where the evidence offered is a tape recording of the conversation, that evidence is secondary (see Brooks v. State, 141 Ga. App. 725, 735 (234 SE2d 541) because it, and particularly any transcription of it, is a mechanical reproduction of the actual conversation. Solomon, supra p. 213. It is true that in the case before us, the officer testified that he was not able to hear all of the conversations between the informant and appellant Goodwin, that there were gaps in some of the conversation heard and there was some interference in the transmission possibly caused by the proximity of the scene to the airport, but the same might be said of a conversation heard without the aid of an electronic amplification and listening device. The officer testified positively as to what he did hear (see Lynn v. State, 140 Ga. 387, 395 (79 SE 29); Woolfolk v. State, 85 Ga. 69 (2), 99 (11 SE 814)), and that he recognized the informant’s voice during the conversation and watched the informant and appellant Goodwin engage in conversation at the same time. Since the effect of the overhearing of conversation, through electronic amplification, was the same as if it were heard over the garden wall (see On Lee, supra), questions of reliability of equipment or reproduction which properly may arise in cases of secondary evidence such as tape recordings and transcriptions (see Solomon, supra) do not arise in the case of testimony of the witness who overhears and repeats the conversations. The question is one of the credibility of the witness, who is subject to cross examination and whose testimony is given such weight as the trier of fact determines is warranted. On Lee, supra, p. 757. The evidence given by the officer as to what he heard was admissible in this case.

(b) Appellant argues further that it was necessary to affirmatively establish the informant’s consent to the electronic surveillance pursuant to Code § 26-3006, and that the requirements of Code § 26-3006 are not satisfied by the police agent’s hearsay testimony that the informant said he had no aversion to wearing the body bug. Some guidance may be found in the wording of Code § 26-3006, which permits surveillance of a message sent by any means "in those instances wherein the message shall be initiated or instigated by person” and where the message shall constitute a crime or is directly in furtherance of a crime, provided at least one party consents to the interception, recording and divulging. We are unable to perceive any purpose or significance to the words "wherein the message shall be initiated or instigated by a person,” unless the legislature intended the statute to govern specifically a conversation or communication arranged or anticipated by one of the parties for the purpose of interception, recording, and divulging. All messages and conversations that have ever been or ever will be are "initiated or instigated by a person”; consequently, those delineating words either mean nothing at all, which we cannot concede, or they refer expressly, though somewhat obscurely, to situations which are arranged or engaged in for the purpose of surveillance. Code § 26-3006 and the entire line of cases which have permitted electronic surveillance where one party to the conversation consents, are based on the concept that "no interest legitimately protected by the Fourth Amendment is involved,” in such circumstances, for the Fourth Amendment "affords no protection to a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” United States v. White, supra; Hoffa v. United States, 385 U. S. 293 (87 SC 408, 17 LE2d 374); and see, generally, concerning the "legitimate expectation of privacy,” Rakas v. Illinois, 439 U. S. 128 (99 SC 421, 58 LE2d 387). If one of the parties initiates or instigates the conversation for purposes of surveillance, and knowingly wears a device on his person which simultaneously amplifies the conversation and thus divulges it to others, then he is simply engaging in what he has a right to do and the wrongdoer cannot object. The requirement of "consent” of one of the parties ensures that the overhearing by third parties is by the divulgence of one of the parties to the conversation, which is constitutionally permissible (United States v. White, supra); and not by surreptitious interception unbeknownst to any party to the conversation, which is constitutionally impermissible, Katz. v. United States, 389 U. S. 347 (88 SC 507, 19 LE2d 576); and see United States v. White, supra, p. 749. If one of the parties divulges the conversation to others, he has perforce «consented its interception. See also Cross v. State, supra. In the precise circumstances of this case, it is therefore not necessary that the voluntariness of the consent to the overhearing by one of the parties to the conversation be established prima facie by testimony of the party himself. The fact that he himself knowingly divulged it obviates the necessity of proving that he consented to its overhearing.

2. Appellants contend they had an expectation of privacy in the contents of the trunk of the automobile which they borrowed from the informant. We will not go so far as to hold, as the state contends, that all constitutional rights of the accused are obliterated by the fact that the vehicle was the rented property of law enforcement officials, and that therefore the police could, as contended by the officers themselves in this case, immediately and without any probable cause always search their own property without regard for any factual circumstance or any constitutional considerations whatsoever. Assuming, but not deciding, that appellant Goodwin had a legitimate expectation of privacy in the automobile and had standing to object to the search (see generally, Rakas v. Illinois, supra), the conversation overheard a few minutes before, wherein he suggested that he take the Monte Carlo and load the marijuana in it and then switch cars again when he returned, and where he then took the car and immediately returned, provided probable cause to believe that when he returned with the Monte Carlo he had brought a load of marijuana in its trunk. The passenger Manley had no legitimate expectation of privacy and no standing to object to the search (Rakas, supra). As to both appellants, the trial court’s denial of the motion to suppress was not error.

Submitted October 18, 1979 Decided March 19, 1980. R. David Botts, for appellants. Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, for appellee.

Judgment affirmed.

Deen, C. J., Quillian, P. J., McMurray, P. J., Banke and Sognier, JJ., concur. Smith, Shulman and Carley, JJ., dissent.