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January 21, 1966

Charles ZARKIN, Stanley L. Sonneborn

The opinion of the court was delivered by: WALSH

 A man places telephone calls to persons who are suspected gamblers. He authorizes the police to monitor these calls on an extension telephone. At the time he authorizes this monitoring, he is awaiting imposition of sentence, and gives the authorization in the hope he will receive leniency. Was this authorization voluntary? That is the question before this Court.

 Defendants have filed a Motion for Suppression of Evidence on the grounds that the authorization was involuntary. This Court finds that the authorization was voluntary, and in full accordance with the provisions of 47 U.S.C. 605.

 I. The Facts of the Case

 The informant in this case, a Newton Jones, at one time worked very closely with the defendants, Zarkin and Sonneborn, allegedly in matters involving a lottery operation. However, in late 1964, Jones was arrested for violation of the lottery laws, and in January, 1965, he plead guilty to this charge. The matter was then set down for sentencing.

 Mr. Jones previously had served time in jail for an embezzlement conviction. During that time he became very ill. He spent most of his term in the prison hospital. Thus, at the time in question, he became distraught over the prospect of returning to jail. Troubled and worried over this unhappy prospect, Jones consulted a friend. The friend, who had no affiliation with law enforcement, advised Jones to go to the police with an offer to act as an informer in hopes of securing an official promise of leniency. Jones took this advice.

 On March 8, 1965, while still awaiting imposition of his sentence, he sought out Captain Foran of the gambling squad and made his offer to place phone calls to the defendants and authorize the police to monitor them. However, Captain Foran would not make such a promise of leniency. He gave no assurances, and in fact informed Jones that he could count upon nothing in terms of cooperation by the police. Nevertheless, Jones continued in his attempt to "whet the appetite" of the police. Therefore, the following day, March 9, 1965, Captain Foran took Jones down to the United States Attorney's office, where he was allowed to speak with Mr. Coleman, one of the Assistants. Mr. Coleman reiterated the fact that the Government would offer no promise of leniency to Jones. However, Mr. Coleman did assure him that should he cooperate with the police, Mr. Coleman would place this fact before the sentencing court. Relying on this limited assurance, Jones proceeded to cooperate with the police. While he was in the United States Attorney's office, he offered to place calls to either one or both of the defendants and to converse with them on matters relative to gambling operations which they allegedly were conducting. This offer was not accepted at that time.

 Jones and Captain Foran returned to Police Headquarters, and later that same day, while at Police Headquarters, Jones placed the first of a series of monitored phone calls. The police listened to this and subsequent phone calls on a regularly installed extension telephone. They also recorded the conversations on a device connected to the extension. Jones called the apartments of both defendants, Zarkin and Sonneborn, and spoke with each of them on more than one occasion.

 On March 19, 1965, Jones appeared before the court for sentencing. At that time the police had not completed the investigation they were making by means of the monitored telephone conversations. Thus, the United States Attorney made no representations to the court as to the aid which Jones had rendered the police. In spite of this, Jones did not receive a jail sentence, but was fined $750.00. Later on that day, after he had been sentenced, Jones placed the final monitored telephone call involved in this matter. Following this call, Jones and Captain Foran went to the United States Commissioner and swore out the affidavits which support the warrants in this case. Thus, Jones placed one phone call and swore to the affidavits after the imposition of his sentence.

 On the basis of information secured from these telephone calls, search warrants were obtained for the premises of Zarkin and for the premises of Sonneborn. Arrest warrants, based upon this information, were issued for both defendants. Defendants ask the court to suppress the evidence seized by the police at the time these warrants were executed.

 II. The Legal Background; Authorization to Intercept

 To attempt to speak at once to the legal question of consent in this matter is akin to hopping a freight at full steam. The Supreme Court interpretations of the statute involved in this case were well under way before the element of consent was taken aboard. Therefore, for a more complete understanding of this matter, it is perhaps best to return to the original platform.

 Ostensibly in speaking to the propriety of wire tapping, we are not speaking of a constitutional question, for at an early date the Supreme Court ruled that wiretapping was neither a search nor a seizure. *fn1" However dirty the business may be, it was not to be cleansed by a constitutional detergent.

 However, shortly after that decision, Congress tucked away in the recesses of the 1934 Communications Act a relatively innocuous section, which read in part:

"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." June 19, 1934, c. 652, Title VI, § 605, 48 Stat. 1103.

 Within months after the enactment of this statute, it was being heralded by defense attorneys as a legislative shield against wiretapping. This came in spite of the concerted legislative rejections of proposed anti-wiretap legislation. *fn2"

 The Supreme Court adopted this argument, and in 1937 ruled that this statute prevented the introduction of evidence obtained by a wiretap. ( Nardone v. United States, 302 U.S. 379, 58 S. Ct. 275, 82 L. Ed. 314 (1937)). Since that time, Section 47 U.S.C. 605 has made its way to our highest tribunal a half a dozen times. It has been this statute, and the decisions based upon the statute, which has dictated the law in this matter, * * * not the Constitution.

 However, in leaving the question of protecting the conversation and entering into the question of protecting the individual against official coercion, we reopen the constitutional doors to possible Fifth and Fourteenth Amendment attacks. In the case at bar, the Court has not found a significant deprivation of liberty, and thus has based this decision upon the statute. However, in considering this problem, the Court has not been unmindful of the reintroduction of constitutional elements into the field of wiretapping. *fn3"

 (B) The Pre- Rathbun Conflict; Is Evidence Admissible if it is Obtained by Recording or by Listening to a Telephone Conversation with the Consent of One Party, but ...

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