State v. Geraldo

429 N.E.2d 141, 68 Ohio St. 2d 120, 22 Ohio Op. 3d 366, 1981 Ohio LEXIS 632
CourtOhio Supreme Court
DecidedDecember 16, 1981
DocketNo. 80-1677
StatusPublished
Cited by57 cases

This text of 429 N.E.2d 141 (State v. Geraldo) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Geraldo, 429 N.E.2d 141, 68 Ohio St. 2d 120, 22 Ohio Op. 3d 366, 1981 Ohio LEXIS 632 (Ohio 1981).

Opinion

Sweeney, J.

The question presented in the instant appeal is whether the federal constitution or state law requires the suppression of evidence obtained by the warrantless recording of a telephone conversation between a consenting police informant and a non-consenting defendant.

I.

Appellant seeks to avoid the rule expressed in the plurality opinion of the United States Supreme Court in United States v. White (1971), 401 U. S. 745, and subsequently ratified by a majority of that court in United States v. Caceres (1979), 440 U. S. 741, by advancing a theory which posits that the scope of [122]*122Fourth Amendment rights is to be ascertained with reference to state law.1 In White, which followed the seminal wiretaping case of Katz v. United States (1967), 389 U. S. 347, Justice White, writing for three other members of the court, stated the following, at pages 751-752:

“Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter’s Fourth Amendment rights. Hoffa v. United States, 385 U. S., at 300-303. For constitutional purposes, no different result is required if the agent, instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, Lopez v. United States, supra, [ (1963), 373 U. S. 427], (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v. United States, supra [ (1952), 343 U. S. 747]. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.
“Our problem is not what the privacy expectations of particular defendants in particular situations may be or the extent to which they may in fact have relied on the discretion of their companions. Very probably, individual defendants neither know nor suspect that their colleagues have gone or will go to the police or are carrying recorders or transmitters. Otherwise, conversation would cease and our problem with these encounters would be nonexistent or far different from those now [123]*123before us. Our problem, * * *is what expectations of privacy are constitutionally ‘justifiable’ — what expectations the Fourth Amendment will protect in the absence of a warrant. So far, the law permits the frustration of actual expectations of privacy by permitting authorities to use the testimony of those associates who for one reason or another have determined to turn to the police, as well as by authorizing the use of informants in the manner exemplified by Hoff a and*** [Lewis v. United States (1966), 385 U. S. 206]. If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State’s case. See Lopez v. United States, 373 U. S. 427 (1963).”2

Notwithstanding White and the clear statement in United States v. Caceres, supra, at page 744, that “[n]either the Constitution nor any Act of Congress requires that official approval be secured before conversations are overheard or recorded by Government agents with the consent of one of the conversants,”3 appellant contends that “[w]here a person has a subjective expectation of privacy in an area that the state has rendered private as a matter of state law, the person has a reasonable and legitimate expectation of privacy entitled to Fourth Amendment protection.”

The essence of appellant’s argument is that inasmuch as the privacy rights guaranteed by the Fourth Amendment are but a subset of those liberty interests protected by the Due Process Clause of the Fourteenth Amendment, it is entirely appropriate, and indeed necessary, for a court to look to state law to determine the scope of constitutionally protected [124]*124Fourth Amendment interests in precisely the same way courts refer to state law to assess claims alleging that protected interests have been abridged in violation of the Fourteenth Amendment. See, e.g., Bd. of Regents v. Roth (1972), 408 U. S. 564. Moreover, according to appellant, the court in fn. 1 of White left open the question of whether state law can create reasonable expectations of privacy entitled to constitutional protection.4 The footnote states, at page 747, in relevant part: “***[W]e do not consider White’s claim that the Government’s actions violated state law.”

The above language provides the underpinning for appellant’s elaborate Fourth Amendment theory and, necessarily, he ascribes to it great significance. As we read it, however, fn. 1 in White merely stands for the oft-stated proposition that “a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards.” (Emphasis in original.) Oregon v. Hass (1975), 420 U. S. 714, at page 719. See, generally, Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489. We glean no intent on the part of the United States Supreme Court in White to constitutionalize state law in order to determine what is reasonable for purposes of the Fourth Amendment. Thus, as a matter of federal constitutional law, after the decision in White it is irrelevant that the police conduct in the instant case may not have comported with R. C. 4931.28 (wiretapping prohibited), or Ohio Bell Telephone Company Exchange Tariff Section 20, Order No. 75-725-TP-ATA (1976) (beeper required when recording), which comprise the specific state law bases upon which appellant relies, so long as the warrantless recording of the telephone conversation was undertaken with the voluntary consent of one of the participants thereto. We hold, on the authority of White,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Davis
2025 Ohio 2382 (Ohio Court of Appeals, 2025)
State v. Dixon
2022 Ohio 4532 (Ohio Court of Appeals, 2022)
State v. Jones
2021 Ohio 3050 (Ohio Court of Appeals, 2021)
State v. Kendall
2021 Ohio 1551 (Ohio Court of Appeals, 2021)
State v. Peeks
2020 Ohio 889 (Ohio Court of Appeals, 2020)
State v. Moiduddin
2019 Ohio 3544 (Ohio Court of Appeals, 2019)
State v. Mendoza
2019 Ohio 3382 (Ohio Court of Appeals, 2019)
State v. Shaskus
2019 Ohio 2190 (Ohio Court of Appeals, 2019)
State v. Beasley
2019 Ohio 719 (Ohio Court of Appeals, 2019)
State v. Roby
2017 Ohio 7331 (Ohio Court of Appeals, 2017)
State v. Wintermeyer
2017 Ohio 5521 (Ohio Court of Appeals, 2017)
State v. Valdez
2017 Ohio 241 (Ohio Court of Appeals, 2017)
State v. James
2016 Ohio 7262 (Ohio Court of Appeals, 2016)
State v. Scarberry
2016 Ohio 7065 (Ohio Court of Appeals, 2016)
State v. Phillips
2016 Ohio 5944 (Ohio Court of Appeals, 2016)
State v. Knoefel
2015 Ohio 5207 (Ohio Court of Appeals, 2015)
State v. Skok
Supreme Court of Connecticut, 2015
State v. Wallace
2012 Ohio 6270 (Ohio Court of Appeals, 2012)
State v. Rammel
2012 Ohio 3724 (Ohio Court of Appeals, 2012)
State v. Hamper
2008 MT 296 (Montana Supreme Court, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
429 N.E.2d 141, 68 Ohio St. 2d 120, 22 Ohio Op. 3d 366, 1981 Ohio LEXIS 632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-geraldo-ohio-1981.