Based upon this information, the defendant appeared before
the Honorable Jim T. Hamilton, Circuit Court Judge for Maury County,
Tennessee, to obtain an order "authorizing the preservation, retention
and continued recording of protected communications pursuant to Tenn.
Code Ann. § 39-13-604." See affidavit (filed July 19, 2002; Docket
Entry No. 18), attachment thereto, Exhibit 1. The application was
granted. The defendant subsequently showed Assistant District Attorney
Brent Cooper the application and order and was advised by him that he had
followed the applicable procedures set forth in Tenn. Code Ann. §
39-13-604 to record cordless telephone transmissions at T and M Beauty
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 defendant contends that any statements made by him
concerning the content of the recordings were absolutely privileged.
As provided by Federal Rule of Civil Procedure 56(c), summary judgment
"shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with affidavits, if
any, show that there is no genuine issue as to any material fact and the
moving party is entitled to a judgment as a matter of law." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91
L.Ed.2d 202, 211 (1986). In its consideration of the evidence, the Court
must view all facts and inferences to be drawn therefrom in the light
most favorable to the non-moving party. Davidson & Jones Dev. Co. v.
Elmore Dev. Co., 921 F.2d 1343, 1349 (6th Cir. 1991). In order to prevail
on a summary judgment motion, the moving party bears the burden of
proving the absence of a genuine issue of material fact concerning an
essential element of the opposing party's action. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265, 274
(1986); Davidson & Jones Dev. Co., 921 F.2d at 1349; Street v. J.C.
Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). An issue of
material fact is one which, under the substantive law governing the
issue, might affect the outcome of the suit. Liberty Lobby, 477 U.S. at
248, 106 S.Ct. at 2510, 91 L.Ed.2d at 211.
In addition, a dispute about the material fact must be genuine, that
is, "the evidence is such that a reasonable jury could return a verdict
for the non-moving party."*fn4 Id.
at 248, 106 S.Ct. at 2510, 91 L.Ed.2d
at 211-12. Since the preponderance of the evidence standard is used in
this determination, more than a mere scintilla of evidence in support of
the plaintiff's position is required. Id. at 252, 106 S.Ct. at 2512, 91
L.Ed.2d at 214.
Once a motion for summary judgment has been made, "the non-moving party
bears the responsibility to demonstrate that summary judgment is
inappropriate under Rule 56(e)." Davidson & Jones Dev. Co., 921 F.2d
at 1349. The non-moving party may not merely rest on conclusory
allegations contained in the complaint, but must respond with affirmative
evidence supporting its claims and establishing the existence of a
genuine issue of material fact. Celotex, 477 U.S. at 324, 106 S.Ct. at
2553, 91 L.Ed.2d at 274; Cloverdale Equip. Co. v. Simon Aerials, Inc.,
869 F.2d 934, 937 (6th Cir. 1989). While the disputed issue does not have
to be resolved conclusively in favor of the non-moving party to defeat
summary judgment, "sufficient evidence supporting the claimed factual
dispute" must be shown, thereby requiring resolution of the parties'
differing versions of the truth by a jury or judge. Liberty Lobby, 477
U.S. at 249, 106 S.Ct. at 2510, 91 L.Ed.2d at 212; First Nat'l Bank v.
Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d
569, 592 (1968).
The plaintiff contends that his communications were unlawfully
intercepted in violation of the Fourth Amendment and the Federal Wiretap
Act. The plaintiff asserts that the defendant did not properly apply for
an order authorizing or approving the interception of an oral
communication pursuant to 18 U.S.C. § 2518. In response, the
defendant contends that he reasonably and in good faith relied on a valid
court order authorizing the preservation, retention and continued
recording of protected communications and on statutory authorization
under the Tenn. Code Ann. § 39-13-604. As a result, he asserts the
good faith defense under the Federal Wiretap Act and the defense of
qualified immunity. The Court finds that the defendant is entitled to
qualified immunity for the plaintiff's claims under the Fourth Amendment
and the Federal Wiretap Act.
The purpose of the Federal Wiretap Act was to forbid electronic
surveillance and interception of those communications which qualified as
wire, oral or electronic communications, as defined by that statute.
Blake v. Wright, 179 F.3d 1003, 1011 (6th Cir. 1999). The Act provides
that "any person who intentionally intercepts, endeavors to intercept, or
procures any other person to intercept or endeavor to intercept, any
wire, oral, or electronic communication" is subject to criminal sanctions
and civil suit. 18 U.S.C. § 2511(1)(a), 2520(a).*fn5 The Act also
provides criminal and civil liability for anyone who intentionally
discloses or uses the contents of an illegally intercepted
communication, knowing or having reason to know that information was
illegally obtained. 18 U.S.C. § 2511(c), (d). However, the Act
explicitly provides a good faith exception as a complete defense against
any civil or criminal
action brought under the statute if the person had
a good faith reliance on (1) a court warrant or order, a grand jury
subpoena, a legislative authorization, or a statutory authorization; (2)
a request of an investigative or law enforcement officer; or (3) if the
person falls under the exceptions pertaining to persons or entities that
provide an electronic communication service to the public.
18 U.S.C. § 2520(d)(1)-(3).
The Wiretapping and Electronic Surveillance Act of 1994, codified as
Tennessee Code Ann. § 40-6-301 et seq., parallels the Federal Wiretap
Act and similarly prohibits the unauthorized interception and disclosure
of oral communications. However, the Federal Wiretap Act was amended in
1994 and, unlike Tenn. Code Ann. § 40-6-301 et seq., now applies to
cordless telephones. McKamey v. Roach, 55 F.3d 1236, 1238 n. 1 (6th Cir.
1995). Originally, cordless telephone communications were excepted from
the Federal Wiretap Act. In defining "wire" and "electronic"
communication, the pre-1994 federal law explicitly excluded cordless
telephones. These exceptions were removed by Congress in 1994. Id.
Tennessee Code Ann. § 40-6-301 et seq. was adopted in 1994 and,
although amended in 1996, excepts cordless telephones from the definition
of "electronic communication." Section 40-6-303(7) defines "electronic
any transfer of signs, signals, writing, images, sounds,
data, or intelligence of any nature transmitted in whole
or in part by the aid of wire, radio, electromagnetic,
photooptical, or photoelectronic facilities, but does not
(A) The radio portion of a cordless telephone
communication that is transmitted between the
cordless telephone handset and the base unit;
(B) Any wire or oral communication. . . .
Tenn. Code Ann. § 40-6-303(7). Similarly, Section 40-6-303(19)
defines "wire communication" as:
any aural transfer made in whole or in part through
the use of facilities for the transmission of
communications by the aid of wire, cable, or other
like connection between the point of origin and the
point of reception . . . [but] does not include the
radio portion of a cordless telephone communication
that is transmitted between the cordless telephone
handset and the base unit.
Tenn. Code Ann. § 40-6-303(19).*fn6
Like the Federal Wiretap Act codified at 18 U.S.C. § 2518, §
40-6-304 of the Tennessee Code sets forth the procedures for applying for
an order authorizing the interception of wire, oral or electronic
communications. In his amended complaint (filed Nov. 19, 2001; Docket
Entry No. 3), ¶ 3.9, the plaintiff alleges that the defendant did
not comply with the procedures as set forth in 18 U.S.C. § 2518 in
applying for such an order. In particular, the plaintiff contends that the
defendant did not state that other investigative procedures were tried
and failed or why such procedures were unlikely to succeed if tried or
that they would be too dangerous if tried. See
18 U.S.C. § 2518(1)(c).*fn7
Instead, the defendant relied on Tenn.
Code Ann. § 39-13-604, which separately addresses the interception of
cordless telephone communications.
Section 39-13-604(f)(1) provides that a law enforcement officer may
record a protected communication where the preservation and the retention
of the recording is pertinent to a criminal investigation. The officer
must provide the name of the officer making the recording and the time
and date the recording was made. Id., § 39-13-604(f)(2). Within 48
hours of making the recording, the officer must make an application to a
judge for an order authorizing the continued recording and preservation
and retention of recordings already made. Id., § 39-13-604(f)(3). The
officer must also certify to the judge that the recording is pertinent to
the investigation, the nature of the offense and the address of the
location of the cordless communication intercepted. Id., §
The defendant complied with the procedures set forth in § 39-13-604
in making his application before Judge Hamilton, and an order authorizing
the interception and preservation and retention of such recording was
issued. The defendant argues that he relied on Tenn. Code Ann. §
39-13-604, which qualifies as "statutory authorization" under
18 U.S.C. § 2520(d)(1). He also asserts that he relied on the court
order entered by Judge Hamilton, which also qualifies under the good
faith defense provided under 18 U.S.C. § 2520(d)(1). He further
argues that he relied on the advice of General Cooper regarding the
application and order authorizing such an interception. Thus, the
defendant contends that a reasonable officer acting in "good faith" would
believe that he could implement the interception and recording of
cordless telephone conversations pursuant to the statutory exception
provided in Tenn. Code Ann. § 39-13-604 and pursuant to the November
8, 2000, court order. The defendant further argues that he is entitled to
Qualified immunity is an immunity from suit that extends to government
officials performing discretionary functions. Blake, 179 F.3d at 1007.
Government officials acting in their official capacities are not liable
for civil damages if their actions do not "violate clearly established
statutory or constitutional rights of which a reasonable person would
have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,
2738, 73 L.Ed.2d 396, 410 (1982); Anderson v. Creighton, 483 U.S. 635,
639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523, 530 (1987) ("[W]hether an
official protected by qualified immunity may be held personally liable
for an allegedly unlawful official action generally turns on the
`objective legal reasonableness' of the action, assessed in light of the
legal rules that were `clearly established' at the time it was taken.").
"The statutory or constitutional rights in question must have been `so
clearly established when the acts were committed that any officer in the
defendant's position, measured objectively, would have clearly understood
that he was under an affirmative duty to have refrained from such
conduct.'" Cullinan v. Abramson, 128 F.3d 301, 309 (6th Cir. 1997)
(citations omitted). "This `objective reasonableness' standard focuses on
whether defendants reasonably could have thought that their actions were
consistent with the rights that plaintiff claims have
Walton v. City of Southfield, 995 F.2d 1331, 1336 (6th Cir. 1993).
In determining whether qualified immunity applies, courts are to apply
a two-part inquiry. First, courts must decide whether the alleged
constitutional or statutory violations were "clearly established" at the
time of the alleged violations. Blake, 179 F.3d at 1007. A right is
"clearly established" if the question has been decided by the Supreme
Court, the United States Court of Appeals for the circuit in which the
district court deciding the issue sits, the district court itself or case
law from other circuits that is directly on point. Id. However, "a single
recent case from the Court of Appeals of another circuit is hardly
sufficient to make the law `clearly established' in [the Sixth Circuit]."
Eugene D. v. Karman, 889 F.2d 701, 706 (6th Cir. 1989); Cullinan, 128
F.3d at 311 ("Ordinarily, at least, in determining whether a right is
`clearly established' this court will not look beyond Supreme Court and
Sixth Circuit precedent."). Courts may also look to the highest state
court in the state where the case arose. Id. at 706 n. 6. "Although the
absence of a case on point does not necessarily endow a public official
with public immunity, `when this court can uncover only some generally
applicable principle, its specific application to the relevant controversy
must again have been clearly foreshadowed by applicable direct
authority.'" Blake, 179 F.3d at 1007 (internal quotations omitted).
[t]he contours of the right must be sufficiently clear
that a reasonable official would understand that what he
is doing violates that right. This is not to say that an
official action is protected by qualified immunity unless
the very action in question has previously been held
unlawful; but it is to say that in the light of
pre-existing law the unlawfulness must be apparent.
Anderson, 483 U.S. at 640, 107 S.Ct. at 3039, 97 L.Ed.2d at 531.
Once a court finds that the right is clearly established, the court
must next decide "whether a reasonable person in the defendant's position
would have known that his or her actions violated clearly established
rights." Blake, 179 F.3d at 1008.*fn8 The test is an objective
standard, and the defendant's subjective intent is irrelevant. Id.
With regard to the plaintiff's Fourth Amendment claim, the Court must
determine whether the plaintiff had a reasonable expectation of privacy
while using a cordless telephone. The Supreme Court has found that a
fundamental right to privacy exists in wire communications under the
Fourth Amendment. Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18
L.Ed.2d 1040 (1967). In Katz v. United States, 389 U.S. 347, 353, 88
S.Ct. 507, 512, 19 L.Ed.2d 576, 583 (1967), the Supreme Court held that
government agents violate the Fourth Amendment by recording private
communications without a warrant or court order when a person has a
reasonable expectation of privacy. A reasonable expectation of privacy
exists if a person has an expectation of privacy that is reasonable under
the circumstances. Id. (The government violates the Fourth Amendment
"when electronically listening to and recording the [person's] words
violate the privacy upon which he justifiably relied. . . ."). Thus,
the test has both a subjective and an objective component. This two part
standard was summarized in Justice
Harlan's concurring opinion wherein he articulated:
As the Court's opinion states, "the Fourth Amendment
protects people, not places." The question, however, is
what protection it affords to those people. Generally,
as here, the answer to that question requires reference
to a "place." My understanding of the rule that has
emerged from prior decisions is that there is a twofold
requirement, first that a person have exhibited an actual
(subjective) expectation of privacy and, second, that the
expectation be one that society is prepared to recognize
as "reasonable." Thus a man's home is, for most
purposes, a place where he expects privacy, but objects,
activities, or statements that he exposes to the "plain
view" of outsiders are not "protected" because no
intention to keep them to himself has been exhibited. On
the other hand, conversations in the open would not be
protected against being overheard, for the expectation of
privacy under the circumstances would be unreasonable.
389 U.S. at 361, 88 S.Ct. at 516, 19 L.Ed.2d at 587-88 (Harlan, J.,
The Federal Wiretap Act was first enacted in 1968 and did not apply to
the monitoring of radio communications. Bartnicki v. Vopper, 532 U.S. 514,
524, 121 S.Ct. 1753, 1759, 149 L.Ed.2d 787, 799 (2001). It was later
amended in 1986 to prohibit the interception of "electronic" as well as
oral and wire communications. Id. The Act was amended again in 1994 and
now extends to the interception of conversations over both cordless and
cellular telephones. Id. Prior to the 1994 amendment, courts uniformly
held that a cordless telephone user did not have a reasonable expectation
of privacy in his cordless telephone conversations under either the
Federal Wiretap Act or the Fourth Amendment. McKamey, 55 F.3d at 1239
(collecting cases). The United States Court of Appeals for the Sixth
Circuit explained that this was because cordless telephone communications
are transmitted via radio waves "to all who wish to overhear" and noted
Congress' observation in the 1986 amendments to the Act that radio waves
are easily intercepted. Id. at 1239-40.
The application of the Fourth Amendment to cordless telephone
communications was thoroughly addressed by the United States Court of
Appeals for the Fifth Circuit in United States v. Smith, 978 F.2d 171 (5th
Cir. 1992). In determining that the pre-1994 version of the Federal
Wiretap Act did not apply to cordless telephone communications, the Court
then attempted to determine whether the Fourth Amendment provided
protection to the user of a cordless telephone. The Court recognized the
difficulty in characterizing cordless telephones as either like
traditional land-based telephones or like radio transmitters. Id. at
177. It noted that the former was clearly protected by the Fourth
Amendment but that pure radio communications were not afforded such
protection because "`[b]roadcasting communications into the air by radio
waves is more analogous to carrying on an oral communication in a loud
voice or with a megaphone than it is to the privacy afforded by a wire.'"
Id. (citations omitted).
According to the Court, the problem was that cordless telephones did
not fit neatly into either category. Id. at 178. However, although
cordless telephones were not easily characterized, it did not mean that a
communication was not entitled to Fourth Amendment protection simply
because it was not transmitted over a wire. Id. at 179. The Court
explained that the significant difference between cordless telephone
communications and wire communications
was that conversations over early
versions of cordless telephones were very easily intercepted and
therefore a user could never have a reasonable expectation of privacy.
Id.; Price v. Turner, 260 F.3d 1144, 1148 (9th Cir. 2001). The Court
noted, however, that with the evolution of cordless technology the
reasonableness of an expectation of privacy increased as technological
advances made it more difficult for cordless communications to be
intercepted. Id. Some of these advances included limiting the effective
range of the cordless telephones to a range of about sixty feet; no
longer "pre-setting" cordless telephones to one frequency, enabling them
to monitor and select a frequency not being used; broadcasting on radio
frequencies not used by commercial radio, which prevents conventional
radios from picking up cordless telephone communications; and cordless
telephones being able to scramble the radio signal to prevent radio
scanners from intercepting such communications. Id. The Court stated:
Courts should bear in mind that the issue is not whether
it is conceivable that someone could eavesdrop on a
conversation but whether it is reasonable to expect
privacy. No matter how technologically advanced cordless
communication becomes, some people will always find a way
to eavesdrop on their neighbors. However, "[t]he fact
that [Listening] Toms abound does not license the
government to follow suit." Although we express no
opinion as to what features or circumstances would be
necessary to give rise to a reasonable expectation of
privacy, it should be obvious that as technological
advances make cordless communications more private at
some point such communication will be entitled to Fourth
Amendment protection. Given this conclusion, it should
be equally obvious that it is not enough for a trial
court to conclude that interception of a conversation
does not implicate Fourth Amendment concerns simply
because it is carried by a "cordless" phone. Application
of the Fourth Amendment in a given case will depend
largely upon the specific technology used. . . .
Id. at 179-80 (emphasis in original) (citations and footnote omitted).
The Court concluded: