State v. Dwyer

585 P.2d 900, 120 Ariz. 291, 1978 Ariz. App. LEXIS 613

• Court: Court of Appeals of Arizona
• Decided: August 17, 1978
• Docket: 1 CA-CR 2734
• Status: Published

Opinions

OPINION

DONOFRIO, Judge.

The State appeals the granting of appel-lee Edward Dwyer’s motion to suppress conversations between him and Mrs. Sandy Austin overheard by telephone operators in Bisbee, Arizona and all evidence derived therefrom. We affirm the trial court’s granting of the motion to suppress.

On the evening of May 6, 1976 appellee called the operator in Bisbee, Arizona to place an emergency phone call. The operator he reached was Ms. Mary Ida Silva. Appellee gave Ms. Silva the number he wanted to reach, told her it was an emergency call and asked her to please interrupt. Ms. Silva dialed the number appellee wished to reach and discovered that it was busy. She then went on what is called a verifying trunk line and heard Mrs. Sandy Austin talking to another woman. Ms. Silva was acquainted with Mrs. Austin and identified her by her voice immediately upon breaking in. She interrupted and told Mrs. Austin that she had an emergency call. Mrs. Austin said she would hang up in a minute. Ms. Silva left the verifying trunk line connected to giver her light supervision which would enable her to determine when the call was completed without having to listen to the conversation. As soon as the light went out she dialed Mrs. Austin’s number to connect her with Mr. Dwyer but it was busy. About that time Mrs. Wilma Atkinson, another operator told her that she had Mrs. Austin on another line. Ms. Silva therefore connected Mr. Dwyer to Mrs. Austin on the other line. Pursuant to normal telephone company procedures she listened on the connection briefly to determine that it had been properly connected and to determine that it was actually an emergency call. Ms. Silva then cut off and began picking up the rest of her calls.

After the connection was made between Mrs. Austin and appellee Mrs. Atkinson was told by one of the other operators to “Go into a Bisbee light.” She plugged in and heard the telephone conversation between appellee and Mrs. Austin. She listened for approximately 15 minutes. Several other operators were also listening in on the telephone conversation between appellee and Mrs. Austin. On the basis of what the operators overheard they placed an anonymous phone call to the Scottsdale Police Department warning them that Mrs. Austin’s husband, Jesse Austin, who was going to be released from the State Hospital, was in danger. The police made no follow-up on this call.

On May 7, 1976, one day after the conversations were overheard, Jesse Austin was released from the State Hospital. On the morning of May 8, 1976 Jesse Austin was found dead, his body bearing approximately 28 stab wounds. On May 9,1976 one of the telephone operators related to her husband, Douglas Knipp, who was at the time a lieutenant in the Cochise County Sheriff’s Department, the nature of the conversations which had been overheard by several of the operators on May 6. The following day Lt. Knipp called the Scottsdale Police Department with the information he had acquired from his wife. Owing largely to information developed from the contents of these conversations the police arrested Mrs. Austin, appellee and Anthony Ridings. After their arrests the police were able to obtain incriminating statements from both Mr. Ridings and Mrs. Austin. These statements also implicated appellee. On September 30, 1976 appellee was named in a two-count indictment charging him with first degree murder and conspiracy to commit murder. In their opening brief the State forthrightly states:

“Aside from corroborating circumstancial evidence, the major portions of the State’s case are the conversations overheard by the Bisbee operators, the statement made by Sandra Austin, and the statement of Anthony Ridings.”

After conducting an evidentiary hearing and considering the arguments and citations supplied by the parties the court suppressed the phone conversations and the statements of Sandra Austin and Anthony Ridings. The court ruled that the telephone operators had, with the exception of Ms. Silva’s initial brief verification of the connection, illegally intercepted the telephone conversation between Mrs. Austin and appellee. She therefore imposed the exclusionary rule provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S. Code §§ 2510-2520.

The statutory exclusionary rule provision of the act is as follows:

“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, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.” 18 U.S.C. § 2515.

The Senate Report on this section, see 1968 United States Code Congressional and Administrative News, 90th Congress, 2nd Session at 2112, 2184—2185, states that this section must be read in conjunction with the provisions of 18 U.S.C. § 2518(10)(a):

(10)(a) “Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that—

(i) the communication was unlawfully intercepted; . . . ”

The unlawful interception of wire or oral communications is prescribed in 18 U.S.C. § 2511(l)(a):

“(1) Except as otherwise specifically provided in this chapter any person who— (a) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire or oral communication; * * * shall be fined not more than $10,000 or imprisoned not more than 5 years, or both.”

Several of the terms used in 18 U.S.C. § 2511(l)(a) are defined in 18 U.S.C. § 2510. “Person” is defined in 18 U.S.C. § 2510(6) to mean “any employee, or agent of the United States or any State or political subdivision thereof, of any individual, partnership, association, joint stock company, trust, or corporation.” “Wire communication” means:

“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 furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of interstate or foreign communications.” 18 U.S.C. § 2510(1).

“Intercept” is defined to mean “Aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.” The statute also defines “electronic, mechanical or other device” to mean:

“any device or apparatus which can be used to intercept a wire or oral communication other than—(a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a communications common carrier in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business; or (ii) being used by a communications common carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties.” 18 U.S.C. § 2510(5)(a).

The only lawful intercepts allowed by the statutes are those obtained pursuant to an application to a federal judge by the Attorney General or his specially designated Assistant Attorney General or, at the state level, pursuant to an application by the principal prosecuting attorney of a state or a political subdivision thereof to a state court judge under a state statute authorizing such application. 18 U.S.C. § 2516(1) and (2). These requirements are strictly enforced. United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40 L.Ed.2d 341 (1974). There are elaborate requirements for the form and nature of the application set forth in 18 U.S.C. § 2518. There is also a limited authorization for intercepts by phone company personnel:

“(2)(a) It shall not be unlawful under this chapter for an operator of a switchboard, or an officer, employee, or agent of any communication common carrier, whose facilities are used in the transmission of a wire communication, to intercept, disclose, or use that communication in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his service or to the protection of the rights or property of the carrier of such communication: Provided, That said communication common carriers shall not utilize service observing or random monitoring except for mechanical or service quality control checks.” (Emphasis theirs) 18 U.S.C. § 2511(2)(a).

The cases arising under this exception primarily involve internal phone company investigations of the users of “blue boxes” designed to enable callers to make long distance calls without paying for them. See United States v. Auler, 539 F.2d 642 (7th Cir. 1976), [cert. denied 429 U.S. 1104, 97 S.Ct. 1132, 51 L.Ed.2d 555]; United States v. Goldstein, 532 F.2d 1305 (9th Cir. 1976), [cert. denied 429 U.S. 960, 97 S.Ct. 384, 50 L.Ed.2d 327]; United States v. Clegg, 509 F.2d 605 (5th Cir. 1975).

It is readily apparent that the Bis-bee telephone operators were persons within the meaning of the statute. They also intercepted within the meaning of the statute because they aurally acquired the contents of the telephone conversation between Mrs. Austin and appellee through the use of an electronic device. Although telephone equipment or any component thereof is excepted from the meaning of “electronic, mechanical or other device” in the statute it is so excepted only for those telephone facilities being used by a communications common carrier in the ordinary course of its business. Ms. Silva’s monitoring of the telephone conversation for a short time in assurance that an emergency call was actually being made was a legitimate use of a telephone facility in the ordinary course of the telephone company’s business. See also 18 U.S.C. § 2511(2)(a), supra. However, the actions of the operators in listening for a full 15 minutes to the conversation between appellee and Mrs. Austin for, as appellant puts it, “No purpose at all, other than to fill a bored telephone operator’s day” was not in the ordinary course of the telephone company’s business.

The trial court found that these interceptions were illegal within the meaning of the federal statute and we agree. The Arizona Supreme Court has held that the inadvertent or accidental overhearing of a telephone conversation by an operator is not a willful interception as proscribed by 18 U.S.C. § 2511. State ex rel. Flournoy v. Wren, 108 Ariz. 356, 498 P.2d 444 (1972). The interception by these telephone operators was, however, no accidental or inadvertent interception. It was a willful interception within the meaning of 18 U.S.C. § 2511(1)(a).

The next question is whether, granting the illegality of the interception, the exclusionary rule set forth in 18 U.S.C. § 2515 must be followed in this case. In the recent case of United States v. Donovan, 429 U.S. 413, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977) the Supreme Court of the United States reiterated its previous holding that suppression is required under the statute only for a “ ‘failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device.’ ”. 429 U.S. at 433—4, 97 S.Ct. at 671, 50 L.Ed.2d at 671, quoting United States v. Giordano, supra. It also reiterated its previous holding in United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974), that the violation of a statutory requirement renders an interception unlawful under 18 U.S.C. § 2518(10)(a)(i) only if the requirement violated plays a'“substantive role” in the regulatory system setout by Title III. In applying this test to the facts of this case it becomes obvious that what is involved here is not a mere technical statutory violation of the regulatory scheme of Title III. What we have here is an unlawful interception of a duration of 15 minutes by several telephone operators without the benefit of a proper application or any of the other safeguards set forth in Title III to protect the privacy of wire communications. We must hold therefore that the court below properly applied the exclusionary rule of 18 U.S.C. § 2515 in this case. Our Supreme Court has said that “the contents of a message may not be received in evidence if the message was intercepted in violation of the statute.” [18 U.S.C.Annot. §§ 2511, 2515], State v. Ford, 108 Ariz. 404, 499 P.2d 699 (1972) cert. denied 409 U.S. 1128, 93 S.Ct. 950, 35 L.Ed.2d 261 (1972). This case presents an interception obtained in violation of 18 U.S.C. § 2511. Therefore the granting of the motion to suppress by the court below must be affirmed.

Affirmed.

SCHROEDER, P. J., Department C, concurs.