The opinion of the court was delivered by: Thomas A. Higgins, United States District Judge
In accordance with the memorandum contemporaneously entered, the
defendant's motion (filed July 19, 2002; Docket Entry No. 15) for summary
judgment is granted.
Accordingly, the plaintiff's federal claims are dismissed with
prejudice. The plaintiff's state claims of false light and invasion of
privacy are dismissed without prejudice.
The entry of this order shall constitute the judgment in this action.
The Court has before it the defendant's motion (filed July 19,
2002; Docket Entry No. 15) and memorandum (Docket Entry NO. 16) in
support and the plaintiff's response (filed August 12, 2002; Docket
Entry No. 25) and memorandum (Docket Entry No. 26) in opposition.
The Court has subject matter jurisdiction over the plaintiff's claims
under Title 18, United States Code, Section 2510 et seq., and Title 42,
United States Code, Section 1983, pursuant to 28 U.S.C. § 1331 and
1343 and supplemental jurisdiction over the plaintiff's state law claims
pursuant to 28 U.S.C. § 1367.
For the reasons set forth below, the Court shall grant the defendant's
The plaintiff, Vernon D. Frierson, a resident of Maury County,
Tennessee, filed this action on November 7, 2001, against the defendant,
Tommy Goetz, who was an investigative officer employed by the City of
Mt. Pleasant, Tennessee, and assigned to the Maury County Drug Task
Force, in his individual capacity. The plaintiff alleges that the
defendant violated his Fourth Amendment right to be secure in his person
against unreasonable searches by violating Title III of the Omnibus Crime
Control and Safe Streets Act of 1968, as amended by the Electronic
Communications Privacy Act of 1986, 18 U.S.C. § 2510-2522 ("the
Federal Wiretap Act") Specifically, he alleges that the defendant
unlawfully intercepted communications he made while talking on a cordless
telephone. As a result, the plaintiff was arrested and was fired from his
job as a police officer for the City of Lewisburg, Tennessee. The
plaintiff also asserts state law claims of false light and invasion of
On or about September 20, 2000, the Maury County Drug Task Force began
investigating a man named Michael Wright for drug distribution being
conducted at his place of business, T and M Beauty Supply, located on
North Main Street in Columbia, Tennessee. His business was placed under
twenty-four hour surveillance. During that surveillance, Mr. Wright was
observed using a cordless telephone. On November 8, 2000, the defendant
placed a scanner in his vehicle to intercept communications conducted over
the cordless telephone. In a separate vehicle, the defendant placed
another scanner and a recorder attached to it to record those
communications intercepted by the scanner.*fn2
On November 9, 2000, Officer Mike Johnson of the Maury County Drug Task
Force telephoned the plaintiff to inquire about Michael Wright. The
officer was interested in the location of the T and M Beauty Supply in
Lewisburg and where Mr. Wright was residing in Mt. Pleasant. The
plaintiff, who was from Mt. Pleasant and sat on the city council there,
was familiar with many of the residents of Mt. Pleasant. He also was a
police officer with the Lewisburg City Police Department. The defendant
and Officer Johnson believed that the plaintiff might naturally be able
to provide them information as to these two questions. During this
conversation, the defendant asserts that the plaintiff was informed that
the questions were with regard to an ongoing investigation of Mr.
Wright. The plaintiff, however, disputes this and contends that he did
not receive any indication that Mr. Wright was under investigation.
On November 10, 2000, a conversation between Bennie Collins and Mr.
Wright was intercepted by the Drug Task Force. Mr. Collins was heard
telling Mr. Wright that the plaintiff wanted to talk to him. Mr. Wright
asked for the plaintiff's telephone number and immediately after hanging
up with Mr. Collins, dialed the plaintiff's number. The defendant and
Officer Brian Cook allege that the plaintiff first inquired if Mr. Wright
was on a cellular telephone to which he answered in the negative. The
plaintiff then proceeded to tell Mr. Wright that he was being watched by
the police, that he needed to be careful of what he talked on, that he
needed to dispose of his "stash" and that he should "lay low." The
plaintiff disputes this assertion and alleges that the two men only
conversed about Mr. Wright's ex-girlfriend.*fn3 The conversation lasted
only 48 seconds. Eight and one-half minutes later, Mr. Wright placed a
call to Southwest Airlines.
The defendant contacted Assistant District Attorney Bob Sanders to
determine if there was sufficient probable cause to arrest Mr. Wright and
the plaintiff. General Sanders advised the defendant and Officer Cook
that there was sufficient probable cause to arrest both men. Officer Cook
applied for and was issued an arrest warrant for the plaintiff. The
plaintiff was subsequently arrested that day by Officer Cook. Mr. Wright
was charged and later convicted of possession of cocaine with intent to
resale. The plaintiff was indicted for conspiracy to sell and/or deliver
cocaine and accessory after the fact of the sale and/or delivery of
cocaine. However, the evidence obtained through the recording of the
plaintiff was later suppressed by Judge Hamilton.
In his order, Judge Hamilton found that the officers accurately
followed the procedures set forth in Tenn. Code Ann. § 39-13-604 for
recording cordless telephone communications. Defendant's response (filed
August 23, 2002; Docket Entry No. 33) to plaintiff's statement of
undisputed facts, attachment thereto, order entered by Judge Hamilton.
However, he found that the Federal Wiretap Act preempted Tenn. Code Ann.
§ 39-13-604 in accordance with the Supremacy Clause of the United
States Constitution. He stated:
Because Tenn. Code Ann. § 39-13-604 lowers the
requirements for the seizure of communications made by
cordless and cellular telephones, by not requiring that
an application, the content of which is based on the
Fourth Amendment principles, for an order, authorizing
electronic surveillance be submitted, the Federal
Wiretapping law preempts Tenn. Code Ann. § 39-13-604.
The plaintiff contends that by violating the Federal Wiretap Act, the
defendant violated his right to be free from unreasonable searches. As a
result, the plaintiff was arrested and subsequently fired from his job as
a police officer. He further suffered degradation and ridicule. In
addition to his Fourth Amendment claim, the plaintiff asserts that he has
suffered mental anguish, humiliation and embarrassment, damage to his
character and reputation, loss of privacy and loss of wages.
The defendant contends that he is entitled to the good faith defense
provided under the Federal Wiretap Act. He also contends that he is
qualified immune from the plaintiff's constitutional and Federal Wiretap
claims. The defendant further contends that he is entitled to a judgment
as a matter of law because he did not know nor had reason to know that
the use of the recordings was a violation of the law. With regard to the
state law claims, the ...