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FRIERSON v. GOETZ

October 10, 2002

VERNON D. FRIERSON
V.
TOMMY GOETZ.



The opinion of the court was delivered by: Thomas A. Higgins, United States District Judge

ORDER

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.

It is so ORDERED.

MEMORANDUM

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 motion.

I.

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 privacy.*fn1

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.

Id.

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 ...


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