the affidavit supporting the warrants or even when he made his final phone call.
However, it is true, that both the interception and the divulgence must be authorized. We realize that pressure is pressure. If the state applies the thumb-screw, the point in time when the pressure is applied does not make the pressure less odious.
Yet, in considering this problem, we are not merely concerned with the time element; we are concerned with the nature of the pressure. In Weiss, the government tapped a wire without the consent of either party. They then used the evidence obtained from the wiretap itself in order to force one of the parties to the conversation to become an informer, to turn states evidence, and to consent to the divulgence of the intercepted message. Thus the very pressure exerted was an illegal wiretap. The court held that the use of a wiretap for the purpose of pressuring a person to consent to the publication of that very wiretap is clearly against the intent of section 605. No such pressure and no such use of a wiretap are involved in the case at bar.
Yes, one sentence in Weiss does say that the authorization was involuntary because it was given "in hope of leniency", (pg. 330, 308 U.S. 321, 60 S. Ct. 269, 84 L. Ed. 298), but this must be read in context. This case is not a precedent to invalidate each and every such authorization simply because it might be motivated by hope of leniency. Weiss is a very limited holding and affords little guidance in the case at bar.
Since Rathbun, there have been two cases in this circuit which have spoken to the element of consent.
The first of these is Ladrey v. Commission on Licensure to Practice, supra. However, the discussion of the element of consent in Ladrey is inconclusive.
The second post- Rathbun case in this District which deals with consent is United States v. Laughlin, which is really two related cases involving a series of opinions.
In the first Laughlin case (Criminal No. 599-63; United States v. Laughlin, D.C., 222 F. Supp. 264 (1963)), a perjury case, a mistrial was declared by Judge Youngdahl late in the proceedings. Midway in that case the court was presented with the statements of the informer that she was pending possible indictment and permitted the phone calls to be monitored because she felt she "had to." With this before the court, the evidence was admitted. However, at a later point in the trial the court was presented with overwhelming evidence that the authorization to monitor the phone calls was obtained only through threats of prosecution on the part of the Assistant United States Attorney and the foreman of the grand jury. Even in the face of this pressure the authorization was given most reluctantly and only after much protest. With this new evidence before him, the court declared a mistrial on the grounds that the monitored conversations were obtained without the consent of either party to the conversations and should not have been admitted. Subsequently, Judge Curran dismissed the indictment on the same grounds. United States v. Laughlin, D.C., 223 F. Supp. 623 (1963). The motion to vacate the order to dismiss was denied. United States v. Laughlin, D.C., 226 F. Supp. 112 (1964). The appeal was dismissed without comment by order on April 8, 1964.
The second Laughlin matter was a conspiracy case, Criminal No. 600-63 ( Laughlin v. United States, 120 U.S.App.D.C. 93, 344 F.2d 187 (1965)).
"In the trial of this case, Laughlin contended that under the doctrine of collateral estoppel the Government should have been precluded from relitigating the question of whether Mrs. Gross' consent to the making of the recordings was coerced. The trial court rejected this contention, found that Mrs. Gross' consent was freely given, and admitted the recordings into evidence." (pg. 189).
The appellate court reversed on the grounds of collateral estoppel. Thus, the appellate court for this Circuit has not, as yet, reached the issue of the nature of consent.
Post- Rathbun decisions in other circuits have generally continued in the tradition of permitting the interception but ignoring the question of consent.
However, in recent cases some courts have begun to examine the nature of the consent necessary to authorize the interception. These courts have tended to permit the interception in spite of some police pressures, if those pressures are not "coercive."
III. Legal Authorization Exists Where There is No Police Pressure.
The nature of true consent is a philosophical question as polemical as the arguments concerning free will and determinism. However, this Court will limit its interrogation to the question most pertinent to this problem: Is the authorization involuntary if it is given in hope of leniency?
This Court holds that it is not.
We can think of no time in which a party to a telephone conversation would permit the police to intercept that conversation when he, himself, would not seek something from the police in return, assuming he is of sound mind and knows the police are police. He might merely be seeking police protection from threatening phone calls. Or, he might be an undercover policeman who seeks his pay check. Or, indeed, he may be seeking leniency. However, so long as pressure is not initiated by the police for the purposes of overbearing the will of the party, this Court does not believe that the authorization given by the party is involuntary.
In so holding, this Court still seeks to protect the conversation, and to protect the parties to the conversation. The Court would restrain the use of police coercion and of promises of leniency; and we would restrain the arm of the law from extending out into the community in search of the weak and the vulnerable who might be persuaded to authorize official monitoring of their telephone lines. We believe that the same strict standards which are required in order to validate a consent to a search and seizure should apply to a consent to intercept a telephone conversation.
However, it needs no political philosopher to discern that the prospect of Big Brother is absent from the case at bar. There is less pressure in the present case than in almost every case reviewed. This smacks of no police state! Indeed, the circumspect and thoughtful steps followed by both the police and the Assistant United States Attorney not only are indicative of an awareness of the state of the law in this matter, but also reveal a feeling for the sensitive role which both parties are called upon to assume in a free society. No threats were made or implied; yet in other cases such implications were frequent. No promises of leniency were given, yet in other cases promises of leniency were given without hesitation. (See footnotes 9 and 11-13). Moreover, the informer here placed one phone call and swore to the affidavits after the sentence had been imposed. We need not reiterate the facts of this case. We do not find that the consent to intercept these telephone conversations was obtained by coercion.
IV. A Final Note: Recording the Conversation Does Not Invalidate the Interception
One final note should be added. These conversations were recorded, and, although ahey have not been offered into evidence, they have been "divulged" simply by being turned over to the police. Reitmeister v. Reitmeister, supra. There has been some thought in this Circuit that the recording itself invalidates the interception. United States v. Laughlin, D.C., 223 F. Supp. 623, 626 (1963). In conflict with decision, this Court does not believe that, since Rathbun, recording the conversation makes the interception illegal.
Prior to Rathbun the question of the propriety of clandestinely recording the conversation and the admissibility of evidence obtained by such a recording was a topic of serious debate. United States v. Polakoff, supra, Reitmeister v. Reitmeister, supra, and United States v. Stephenson, supra. However, since the Rathbun decision permitted one party to authorize the police to monitor a telephone conversation on an extension phone, the propriety of recording that conversation is rarely questioned. Carnes v. United States, supra, concisely summarized the present state of the law:
"Two major principles may be extracted * * *. First, testimony as to a telephone conversation listened to with the consent of only one of the parties to the conversation is not inadmissible under Section 605. Second, such testimony does not become inadmissible simply because it was recorded by an electrical or mechanical device attached to an extension phone or telephone wiring at the locality of the consenting party. * * * Taking a sensible view of it, the only difference between a person testifying to a conversation which he participated in or overheard and a recording of a conversation is that the recording has the advantage of furnishing trustworthy evidence (assuming a showing that the tape has not been tampered with). * * * This risk does not catch people by surprise, it does not substantially increase the risk to allow the conversation to be recorded or to allow others to listen."
And see Hall v. United States, supra; Ferguson v. United States, supra.
This, of course, does not sanction those recordings which are taken without the authorization of either party to the conversation. See United States v. Laughlin, D.C., 222 F. Supp. 264, (1963). Nor does it circumvent those sanctions which might be imposed upon those who record conversations without interjecting the proper tone signal. These signals, oddly enough, are not required either by statute or by regulations of the Federal Communications Commission, but are one of the conditions prerequisite to approval of the tariff schedules required to be filed with the F.C.C. and the local public utilities commissions. It has not been suggested that a violation of the condition precludes the introduction of evidence so obtained.
V. The Court's Ruling
The Court finds that in the present case the informant properly authorized the police to overhear his telephone conversations, in full accordance with the provisions of 47 U.S.C. 605.
The motion to suppress is denied.
Appropriate order to be submitted by the Government.