office, or by a servant on an upstairs extension in a house, or even by a person listening at the telephone receiver held by the party to the conversation. Nor can it be of importance whether the transcriber or the party first makes the suggestion for the recording; in either event it is the party who has the power to direct or prohibit its transcription. Neither is it important whether evidence of the conversation comes from the mechanical device of a record or from testimony of those directed to listen in, except that the mechanical device gives the more trustworthy evidence.'
Subsequently in Goldman v. United States, 316 U.S. 129, 134, note 8, 62 S. Ct. 993, 995, 86 L. Ed. 1322, the Yee Ping Jong case, supra, was cited as an authority in support of the following statement contained in the opinion of Mr. Justice Roberts:
'As has rightly been held, this word (i.e., 'intercept') indicates the taking or seizure by the way or before arrival at the destined place. It does not ordinarily connote the obtaining of what is to be sent before, or at the moment, it leaves the possession of the proposed sender, or after, or at the moment, it comes into the possession of the intended receiver.'
The inference seems to be justified that the Supreme Court has approved the conclusion in the Yee Ping John case and that, therefore, the Polakoff case should not be regarded as authoritative. In fact this was the view of one of the Circuit Judges for the Second Circuit in Reitmeister v. Reitmeister, 162 F.2d 691, where Judge Chase stated in a concurring opinion, 162 F.2d at page 697:
'Because I do not believe that our decision in United States v. Polakoff, 2 Cir., 112 F.2d 888 (134 A.L.R. 607) has survived that of the Supreme Court in Goldman v. United States, 316 U.S. 129, 62 S. Ct. 993, 86 L. Ed. 1322, I do not think that Sec. 605 of Title 47 U.S.C.A., can now be given the meaning and scope then attributed to it.'
Thus the status of the Polakoff case is impaired both by the approval of the Yee Ping Jong case by the Supreme Court, as shown above; and also by the fact that there was both a strong dissent in the original opinion in the Polakoff case and a subsequent recognition by one of the Circuit Judges for the Second Circuit of the fact that the Polakoff case must be deemed no longer law in view of the Supreme Court opinion in the Goldman case.
In this court, the point was decided in United States v. Lewis, 87 F.Supp. 970, 973, where the view of Judge Gibson in the Yee Ping John case was adopted in the following words:
'In my opinion the statute is violated if a third person, unbeknownst to either party to the conversation, listens to what passes over the line and then divulges what he has heard, or, if the third person causes the conversation to be recorded by a mechanical or electrical device, without the knowledge of either party to the conversation, and then discloses what has been recorded. I hold that it is not a violation of the statute if the conversation is recorded, manually, mechanically, or electrically, at the instance of or with the consent or knowing acquiescence of one of the parties to it.'
While the conviction in the Lewis case was reversed on other grounds, 87 U.S.App.D.C. 274, 184 F.2d 394, 24 A.L.R.2d 881, this point was not discussed by the 881, this point was not discussed by the foregoing ruling was not disapproved.
The Court of Appeals for this jurisdiction has not expressly passed upon the question here involved. In James v. United States, 89 U.S.App.D.C. 201, 191 F.2d 472, there is a remark that seems to support the defendant's contention in this case. That comment, however, was obiter dictum and cites the Polakoff case as an authority. It does not appear that the Court of Appeals had before it the later history of the Polakoff case. In any event, as has been frequently held both by the Supreme Court and by the Court of Appeals, a dictum should not be regarded as a ruling. The question must be deemed still open so far as the Court of Appeals for this Circuit is concerned. On the other hand, on principle as well as in the light of the state of the authorities discussed above, the conclusion seems inescapable that the Act of Congress does not apply to listening to a telephone conversation with the consent of one of the parties to it.
There is another matter to be considered in this connection. The use of decoys and the employment of artifice and stratagem in the detection of crime and the apprehension of criminals, has been approved by the Supreme Court.
Court records show that in a great majority of prosecutions under the narcotic laws, such means are used by law enforcement agencies. It would be incongruous and untenable to say that any decoy, artifice, or stratagem may be used provided it does not involve the telephone.
Motion to suppress is denied.