The opinion of the court was delivered by: TAMM
The defendant has filed a motion to suppress evidence, namely, ten capsules of alleged heroin mentioned in counts one and two of the indictment, and one hundred capsules mentioned in counts three and four of the same indictment. The grounds upon which he relies in support of this motion to suppress the ten capsules are that they 'were seized from the house where he was living under color of a search warrant that was improperly issued, in that it is tainted with wiretapping and the affidavit is insufficient to justify its issuance.' The grounds upon which he bases his motion as to a suppression of the one hundred capsules are, 'that they were seized from his person without a warrant of any kind, at a time when he was committing no crime, and not in the course of a valid arrest.' As these two points will be treated differently, each will be discussed separately.
The facts are as follows: a police officer had a special employee of the narcotics squad place a call to AD 2-4459, and the former listened to the conversation by means of a telephone extension between the special employee and one, 'Sonny', wherein arrangements were made for a purchase of narcotics. During the conversing, Sonny told the special employee that narcotics were presently on the premises, 62-P St., N.W., and that 'Leroy' was there and 'had his bag.' The special employee, under the surveillance of the police, then proceeded to the above address and purchased heroin. The police officers acting upon this information then secured a search warrant for the entire premises 62-P St., N.W. and proceeded to these premises. Upon their arrival, they knocked at the door but receiving no response they broke in. Once inside, they observed a number of people, narcotics paraphernalia such as syringes and needles, and the ten capsules of heroin. Shortly thereafter, Leroy F. Barbour, the defendant named herein, entered, and was carrying a bag of groceries. The police informed him who they were and of their purpose and authority. Thereupon, Barbour dropped the bag and reached into one of his pockets and began to remove an envelope. Seeing this, the police seized him and secured him after some scuffling and grappling. They then searched Barbour after arresting him, and found the one hundred capsules.
The first point to be treated deals with the seizure of the ten capsules. The main contention of the defendant is that the information that the police originally obtained which served as a basis for the search warrant was secured as the result of illegal wiretapping in that the police officer, by listening in on the conversation between the special employee and Sonny, was violating T. 47 U.S.C.A. § 605. The defendant relies mainly upon the case of United States v. Stephenson, D.C.D.C., 121 F.Supp. 274. The defendant in that case was charged with having committed perjury before the House of Representatives Subcommittee on Defense Activities. One of the false statements attributed to him was his claim that he had never talked to a Mr. Parsons from the Century Company. Parsons, who was not a Government agent, previously had a recording device attached to his telephone which would record all conversations made on the telephone. Parsons turned over a recording of a conversation between Stephenson and himself to the United States Attorney's office. Stephenson, at the time of the telephone conversation, knew nothing of this recording device, nor was he warned about it in any manner. He filed a motion to suppress the recording.
The pertinent portion of T. 47 U.S.C.A. § 605 involved was this: '* * * no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person.'
Judge David Pine in the Stephenson case held that Parsons, although a party to the call, was included in the terms of the statute for it specifically states, 'no person'. He also held that Parson's acts constituted an interception within the meaning of the statute: 'Both in space and time, the taking in this instance was before the arrival of the communications at the destined place.' 121 F.Supp. at page 277. He further held that the playing back of the record in Court would constitute a divulgence, and in determining who is a 'sender' under the statute he held that each party is alternately a sender and a receiver. He went further and said that the privilege granted by the statute would be invalid if the party originating the call had the power to surrender the other's privilege -- the privilege is mutual and both must consent to the interception of any part of the talk. He concluded that Parson's acts were in violation of Sec. 605 and granted the motion to suppress the recording.
One question that must be answered preliminarily is what constitutes an unauthorized interception within the meaning of Section 605. There is no uniformity on this point but rather, as Chief Justice Warren stated in the case of Rathbun v. United States, 355 U.S. 107, 78 S. Ct. 161, 162, 2 L. Ed. 2d 134, 'The federal courts have split in their determination of this question.' As seen in the Stephenson case, Judge Pine held that the recording of the conversation constituted an unauthorized interception within the meaning of the statute. However, in the case of Flanders v. United States, 6 Cir., 222 F.2d 163, there is a factual situation related to the present one. Merritt, in Nashville, upon the urging by agents of the Bureau of Narcotics, called the defendant who was in New York and asked him to bring some heroin to Nashville where it could be sold for a good price. While Merritt talked to the defendant, the agents with the consent and knowledge of Merritt listened to this conversation on extension telephones. Subsequently, the defendant was arrested, tried, found guilty by a jury and sentenced. He then appealed. The only question before the court on appeal was: did the District Court err in refusing to grant appellant's motion to suppress the evidence secured in the telephone conversation on the ground that it constituted an interception of a telephone communication in violation of T. 47 U.S.C.A. § 605?
The Court, through Circuit Judge McAllister, traced the history of the treatment which this question had received citing United States v. Yee Ping Jong, D.C.Pa., 26 F.Supp. 69; United States v. Polakoff, 2 Cir., 112 F.2d 888, 134 A.L.R. 607; Goldman v. U.S. 316 U.S. 129, 62 S. Ct. 993, 86 L. Ed. 1322; Reitmeister v. Reitmeister, 2 Cir., 162 F.2d 691.
In the case of Goldman v. U.S. supra (316 U.S. 129, 62 S. Ct. 995), the Supreme Court treated the word 'intercept' as follows:
'As has rightly been held, this word 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.' 222 F.2d at page 166, Flanders v. United States, supra.
Treated also in Judge McAllister's opinion are the three cases wherein this question arose before the United States District Court for the District of Columbia:
'In United States v. Lewis, D.C., 87 F.Supp. 970, and in United States v. Sullivan, D.C., 116 F.Supp. 480, Judge Holtzoff held that where the telephone conversation was listened to by a third person, with the consent of one of the parties, there was no interception within the intendment of the statute. In United States v. Stephenson, D.C., 121 F.Supp. 274, Judge Pine held, contrary that the recording of a telephone conversation by one of the parties was a violation of the statute, and that the evidence obtained thereby should be suppressed.'
Judge McAllister, in affirming the judgment of the District Court, held:
We are of the opinion that where, by means of an extension phone, or other device, a third party 'listens in' on a telephone conversation with the consent of one of the parties to the conversation, there is no interception of the communication, within the meaning of the statute. With respect for the high authorities that hold a contrary opinion, we are persuaded by the reasoning of those that adopt this view, and consider that the route we follow was pointed out by the Supreme Court in Goldman v. U.S.' 222 F.2d at page 167.
Returning to the case of United States v. Stephenson, supra, it is seen that Judge Pine in that case adopted the meaning of 'intercept' as that set forth by Judge Learned Hand in the case of United States v. Polakoff, 2 Cir., 1940, 112 F.2d 888, 134 A.L.R. 607, wherein it was held that '* * * anyone intercepts a message to whose intervention as a listener the communicants do not consent; the means he employs can have no importance; it is the breach of privacy that counts.' 112 F.2d at page 889. He thus concludes that the holding in the case of Goldman v. United States, supra, has not overruled the opinion in United States v. Polakoff, supra. Thus, there is -- as ...