conversation could be overheard. This "double-think" test, e.g., what the defendant thinks that the speaker is thinking, would present very difficult problems of proof and is also too vague a test to be applied as the decisive factor. It should be noted that the criminal liability of many subsequent users of the tape, who may not have been present at the recording, depends in large part upon whether the initial recording itself was unlawful. Accordingly, it is especially important that the test to be applied to the initial recording be free from vagueness.
The Government recognizes that neither of these subjective tests can be the sole test. Rather, the Government argues, the subjective beliefs of both the speaker and the recorder should be factors to be considered by a jury in an over-all, composite evaluation of the reasonableness of the circumstances under which overhearing took place. This composite evaluation, however, would not avoid the worrisome problems of vagueness and arbitrariness necessarily involved in any reliance on these subjective standards, where the objective standard considered below leaves no room for reasonable doubt.
An objective test would begin by determining whether in fact the recorder heard the conversation unaided by any mechanical device. If such be the case, as it is in this instance, then the inquiry turns to whether the overhearing was contrived by the recorder in the sense that he placed his ear by trespass or otherwise, in an unusual or improper position. If, as in the present case, the recorder could and did hear unaided by an amplifying mechanical device and from an uncontrived position, then it would appear that the Court should hold as a matter of law that the circumstances did not justify the expectation of privacy.
Although the legislative history is not conclusive on this point, it does contain indications that Congress did not intend to make recording under these conditions illegal when it passed the Act. The Senate Report, for example, states at one point that, "the person's (speaker's) subjective interest or the place where the communication is uttered is not necessarily the controlling factor." The Report further suggests that the definition of oral communication, which comprehends the requirement that the circumstances justify the expectation of privacy, was intended to reflect the existing constitutional law on right to privacy. At least one case cited in the legislative, State v. Cartwright, 246 Or. 120, 418 P. 2d 822 (1966), and numerous subsequent cases seem to have applied to situations involving the right of privacy a de facto objective test of whether in fact the conversations could be heard under noncontrived circumstances. United States v. Fuller, 441 F.2d 755 (4th Cir. 1971); Ponce v. Craven, 409 F.2d 621 (9th Cir. 1969); and United States v. Llanes, 398 F.2d 880 (2d Cir. 1968). Also, it appears evident that the factual situation presented in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), was the model of a situation which the Act was designed to prohibit. And in Katz, it is apparent that the federal agents were unable to overhear the recorded conversations without a bugging device. In addition, 18 U.S.C. § 2511(2)(c) creates the exception to the statute exempting a "party to the conversation" who simultaneously recorded the communication; and this exception is consistent with the objective approach.
This is a very narrow and unusual case. By stipulation, there is no question of contrivance by the recorder; he did not eavesdrop in a position where an individual would not normally be expected to be. In addition, there is no question of augmentation of the overheard conversation by means of an electronic device more sensitive than the human ear or by a device in an unauthorized place in order to pick up what could not be heard easily by an uncontriving hearer. And, lastly, it is conceded that the individual who did the recording could and did hear the conversation unaided by the mechanical device. If any of these issues were in doubt, factual questions would be present and, therefore, a trial might be necessary. It is only in the setting where there is no contrivance, no augmentation, and an admitted unaided overhearing that a purely objective test will be decisive. Thus the facts demand as a matter of law that the Court hold there could not be an expectation of privacy under the circumstances of this particular case.
Thus the necessary third element to the crime of intercepting oral communications is missing. Since all the counts of the indictment depend upon the establishment of a private oral communication, all of the counts are defective.
Defendants' motion to dismiss the indictment, therefore, is granted. So ordered.
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