The Motion to Suppress is also appropriate for pre-trial suppression of evidence obtained as a result of illegally intercepted electronic or oral communications. 18 U.S.C. § 2515, 2518(10)(a) [setting out procedure for suppression of illegal electronic or oral communication]; Gelbard v. U.S., 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972) [§ 2515 applicable to Grand Jury witnesses]; U.S. v. Simpson, 813 F.2d 1462 (9th Cir. 1987) [necessity for wiretap must be shown by proof that traditional investigatory procedures will not work and have not worked]; In re Grand Jury 11-84, 799 F.2d 1321 (9th Cir. 1986) [DEA Agent failed to adequately explain execution of wiretap by foreign authorities without involvement or suggestion of United States agents]; U.S. v. Massino, 652
- 244 (S.D. N.Y. 1986) [court orders suppression hearing to determine whether federal officer who failed to mention previous applications was aware of surveillance by local authorities].
Texas’ wire tap statute is codified as TEX. R. CRIM. P. Art. 18.20, which resembles the Federal Statute, 18 U.S.C. § 2510. The Texas statute applies only to “…evidence of the commission of a felony” under the State’s drug laws [TEX. R. CRIM. P. Art. 18.20(4)], may be authorized only by a single, appointed district judge in each judicial district, and can be sought and administered only by D.P.S. (TEX. R. CRIM. P. Art. 18.20(5)]. Compare Title III of the Omnibus Crime Control Act, which under § 2616, the U.S. Attorney General or a designated Assistant U.S. Attorney General may petition any federal judge for an order permitting a federal agency to intercept wire or oral communications.
FORM OVER SUBSTANCE
While the citizen’s expectation of privacy may not have fared so well over all, in U.S. v. Ojeda Rios, 495 U.S. 257, 109 L.Ed.2d 224, 110 S.Ct. 1845 (1990), the Court held that a failure to comply with the sealing requirements of 18 U.S.C. § 2518 will warrant suppression of taped communications if the explanation for the failure to timely seal the tapes does not satisfactorily address why the delay occurred and why it excusable.
Compare U.S. v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), and U.S. v. Butts, 729 F.2d 1514 (5th Cir. 1983) [installation and monitoring of transponder from within a zone of privacy].
The Second Circuit has held that when the government wants to use unsuppressed material obtained from electronic surveillance in a publicly filed memo or brief in a criminal case, it must give the defendant notice and the opportunity to object. U.S. v. Gerena, 869 F.2d 82 (2d Cir. 1989) [if the court finds that privacy or fair trial interests cannot be otherwise protected and the interests outweigh public’s First Amendment right of access, court should order redaction or sealing of the Title III material].
Installation and use of a “pen register” by telephone company at police request does not constitute a “search” within Fourth Amendment under federal law. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). But it does under the law of various states, including Texas. Richardson v. State, 865 S.W.2d 944 (Tex.Crim.App. 1993)[ pen register may be a search for purposes of Texas Constitution.]; People v. Sporleder, 666 P.2d 135 (Colo. 1983) [the government may not install a pen register without procurement of a search warrant based on probable cause, defendant’s privacy expectation in telephone numbers dialed on a home telephone qualifies for constitutional protection under the state constitutional proscription of unreasonable searches and seizures].
OTHER ELECTRONIC COMMUNICATIONS
18 U.S.C. § 2510 includes cordless telephones (radio transmission between a handset and a bars unit) and cellular telephones (a mobile telephone switching office transmits communications). The amendments expand the definition of “electronic communications” to include digitalized transmissions and electronic mail. Thus, typically law enforcement agents must obtain a court order to eavesdrop on communications of data and radio transmissions. 18 U.S.C. § 2510(12).
But see Edwards v. State Farm Ins. Co. 833 F.2d 535, 540 n. 9 (5th Cir. 1987) [the amendments do not apply to pending cases];U.S. v. Kim, 803 F.Supp 352 (D.C. Hawaii) [court suppressed evidence obtained by turning on a cellular phone seized in a civil forfeiture action];U.S. v. Smith, 978 F.2d 171 (5th Cir. 1992)[a defendant must assert an expectation of privacy when using a cordless extension and the signals between the handset and base unit are intercepted].
BURDEN OF PROOF
The initial burden of going forward to establish the illegality of the search or arrest is on the moving party.
U.S. v. De La Fuente, 548 F.2d 528, 533 (5th Cir. 1977); Chin Kay v. U.S., 311 F.2d 317 (9th Cir. 1962); Chappell v. U.S., 342 F.2d 935 (D.C. Cir. 1965); Wilson v. U.S., 218 F.2d 754 (10th Cir. 1955). However, where it is established that the search was made without a warrant, the burden shifts to the prosecution to produce “clear and convincing evidence” that the warrantless search meets constitutional requirements. U.S. v. Buchannon, 388 F.2d 961 (7th Cir. 1968); Williams v. State, 382 F.2d 48 (5th Cir. 1967); Carlo v. U.S., 286 F.2d 841 (2d Cir. 1961); Wrightson v. U.S., 222 F.2d 556 (2d Cir. 1955); U.S. v. Jeffers, 342 U.S. 48, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1951).
ELECTRONIC TRACKING DEVICES (“BEEPERS”)
In applying the Fourth Amendment to cases involving the use of electronic tracking devices or “beepers” by law enforcement agents engaged in covert surveillance Courts have distinguished the beeper’s installation from its monitoring. Thus, although the majority of published decisions address both installation and monitoring, the case law, which has emerged, does not resolve both issues identically.
Recently the Supreme Court in United States v. Jones, 132 S. Ct. 945 (2012), which reviewed the constitutionality of warrantless GPS tracking, may be one of the most important Fourth Amendment opinions since Katz. In an opinion authored by Scalia, the Court held that the installation of a GPS tracking device on Jones’ vehicle, without a warrant, constituted an unlawful search under the Fourth Amendment. The Court rejected the government’s argument that there is no reasonable expectation of privacy in a person’s movement on public thoroughfares and emphasized that the Fourth Amendment provided some protection for trespass onto personal property.
Justice Sonia Sotomayor wrote a concurring opinion, agreeing that the government had obtained information by usurping Jones’ property and by invading his privacy. However, she further reasoned that the Fourth Amendment was not only concerned with trespasses onto property. She stated that a Fourth Amendment search occurs whenever the government violates a subjective expectation of privacy that society recognizes as reasonable, which is particularly important in an era where physical intrusion is unnecessary to many forms of surveillance.
Justice Samuel Alito concurred in the judgment but criticized the framing of the question in terms of trespass to property. He believed that such a construction of the problem strained the language of the Fourth Amendment and that it would be better to analyze the case by determining whether the Government violated Jones’ reasonable expectations of privacy.
The Court stopped after ruling that GPS tracking was a Fourth Amendment search. It said nothing about what conditions would make such a search constitutional under the Fourth Amendment nor did it set forth a presumptive warrant requirement for such GPS searches. Thus, substantial uncertainty continues to exist as to the conditions under which GPS searches are constitutional.
In March of 2013, the First Circuit examined a case in which FBI agents attached a GPS tracking device to the vehicle of a bank robbing suspect. U.S. v. Sparks, 711 F.3d 58 (1st Cir. 2013). Although the ruling in Jones controls the case, the First Circuit concluded that the good-faith exception “applied in cases like this one (or Davis itself), where new developments in the law have upended the settled rules on which the police relied.” Id. at 68. The court noted that the officer’s actions had been guided by binding precedent in that circuit. Id. at 67.
INSTALLATION: EXTERIOR OF VEHICLE
Historically, there was a tendency to the liberal use of transponders and GPS tracking devices with little regard to whether such measures required a warrant or probable cause. U.S. v. Flynn, 664 F.2d 1296 (5th Cir. 1982); U.S. v. Michael, 645 F.2d 252 (5th Cir. 1981) [en banc][deciding the question originally left open in U.S.
- Holmes, 537 F.2d 227, 228 (5th Cir. 1976) [whether a warrant is required for the attachment of an electronic tracking device to the “exterior” of an automobile in the negative]. U.S. v. Garcia, 474 F.3d 994, 80 CrL 491 (7th Cir. 2007); U.S. v. Hernandez, 647 F.3d 216 (5th Cir. 2011).More recently, the Supreme Court has decided that affixing a GPS device to a vehicle and tracking its movements on public streets constitutes a search within the meaning of the Fourth Amendment, and thus requires a warrant predicated on probable cause. United States v. Jones, 565 U.S. 400 (2012).
INSTALLATION: INTERIOR OF VEHICLE.
However, Courts have uniformly held that entry into the “interior” of the vehicle to install the “beeper” constitutes a search, since it involves an intrusion into an area where there is a “reasonable expectation of privacy”. U.S. v. Butts, 729 F.2d 1514 (5th Cir. 1984) (en banc); U.S. v. Cady, 651 F.2d 290 (5th Cir. 1981); U.S. v. Pretzinger, 542 F.2d 517, 520 (9th Cir. 1976) [“no warrant is needed …unless fourth amendment rights necessarily would have to be violated in order to initially install the device.”]; U.S. v. Tussell, 441 F. Supp. 1092 (D. Pa. 1977); U.S. v. Rowland, 448 F. Supp. 22, 24 (N.D. Tex. 1977); U.S. v. Cofer, 444 F. Supp. 146 (W.D. Tex. 1978).
“Since the law enforcement officers had to open a locked door on the airplane cabin to enter and install the beeper there can be no question but that the installation constituted a search for which a warrant issued on the basis of probable cause was a prerequisite.” U.S. v. Cofer, 444 F. Supp. at 149.
A warrant to install electronic transponder or aircraft does not authorize covert breaking and entry of premises where the aircraft is located. U.S. v. Rowland, 448 F. Supp. 22 (N.D.Tex. 1977) [a search warrant which allowed placing of electronic tracking device in airplane did not implicitly permit covert breaking and entering of premises in which the airplane was located so that agents could place the device in the airplane, where the agents could have informed the magistrate that entry into the hanger might have been necessary. Motion to Suppress granted].
INTERIOR OF PARCEL
People v. Salih, 219 Cal.Rptr. 603, 173 Cal.App.3d 1028 (Cal.Ct.App.1st Dist. 1985) [once a postal inspector learned that a mail parcel lawfully opened by customs officials contained heroin, he could insert an electronic beeper into the package].
MONITORING: SIGNAL EMITTED FROM INSIDE A “ZONE OF PRIVACY” AND REVEALS FACTS OTHERWISE NOT LEGALLY OBTAINABLE WITHOUT A WARRANT.
The Supreme Court has held that the monitoring of a beeper in a private dwelling, a location not open to visual surveillance, violates the rights of individuals having a valid right of privacy in the premises because the monitoring revealed facts that the government could not have otherwise obtained legally without a warrant. U.S.
- Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984). Courts have routinely permitted such installation when government agents have lawful access to the object to which the device is attached. U.S. v. Brock, 667 F.2d 1311, 1319 (9th Cir. 1982), cert. denied, 460 U.S. 1022 (1983) [beeper legally installed in chemical canister while canister lawfully in government possession]. Even where a warrantless installation is lawful, a Fourth Amendment violation may occur when the monitored items are taken inside the defendant’s home. U.S. v. Cassity, 631 F.2d 461, 464-65 (6th Cir. 1980) [installation of beepers lawful because items in rightful possession of government; remanded to determine whether expectation of privacy violated when, without warrant, government monitored items taken into defendant’s home]; U.S. v. Bailey, 628 F.2d 938, 943-44 (6th Cir. 1980) [installation of beepers lawful while items in rightful possession of government; monitoring of beepers unlawful once items moved into private areas shielded from public view where defendants had legitimate expectation of privacy].
In U.S. v. Michael, 645 F.2d 252 (5th Cir. 1981) (en banc), cert. denied, 454 U.S. 950 (1981), the Fifth Circuit held that a reasonable suspicion of criminal activity, based on specific and articulable facts together with the rational influences that develop from those facts, suffices to support warrantless installation of a beeper. U.S.
- Michael, 645 F.2d at 645. Balancing the privacy interests of the defendant and the intrusiveness of the beeper installation against the government’s interest in eliminating illegal drug manufacturing, the court concluded that the warrantless installation did not violate the Fourth Amendment. U.S. v. Michael, 645 F.2d at 258-59. See also U.S. v. Kupper, 693 F.2d 1129 (5th Cir. 1982); U.S. v. Parks, 684 F.2d 1078 (5th Cir. 1982); U.S. v. Bailey, 628 F.2d 938, 944 (6th Cir. 1980); U.S. v. Moore, 562 F.2d 106, 113 (1st Cir. 1977), abrogation recognized by U.S. v. Sparks, 711 F.3d 58 (1st Cir. 2013).
MONITORING: SIGNAL EMITTED FROM INSIDE A “ZONE OF PRIVACY” BUT REVEALS ONLY FACTS WHICH CAN BE LEGALLY OBTAINED WITHOUT A WARRANT
No warrant is required where monitoring of a “beeper” reveals only facts which can be legally obtained without a warrant, such as observing an conveyance’s public movements, even where the signal itself is entitled from within a “zone of privacy”. U.S. v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) [signal emitted from within/inside the trunk of automobile but only revealed vehicles movement over public roads]; U.S.
- Butts, 729 F.2d 1514 (5th Cir. 1984) [en banc] [signal emitted from within/inside the aircraft but only revealed aircraft’s movements through public airways].
But see State v. Kelly, 708 P.2d 820 (Hawaii 1985) [law enforcement agents who learned from customs agents that a photo album en route through the mail from Peru contained cocaine acted unlawfully by detaining the album for 10 days and installing an electronic tracking device inside it before making a controlled delivery to the addressee. Unlike the objects upon which beepers were installed in U.S. v. Knotts and U.S. v. Karo, the album was an object in which the addressee had a reasonable privacy interest even while it was in transit].
In U.S. v. Knotts, the Supreme Court held:
“The government surveillance conducted by means of the beeper in this case amounted principally to the following of an automobile on public streets and highways…. A person traveling in an automobile on public thoroughfare has no reasonable expectation of privacy in his movements from one place to another Nothing in the Fourth Amendment prohibited the police from augmenting the sensor faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case.” U.S. v. Knotts, 460 U.S. at 281-82.
As to the Eighth Circuit’s concern that the warrantless electronic surveillance had “push[ed] fortuitously and unreasonably into the private spheres [the private cabin] protected by the Fourth Amendment,” see U.S. v. Knotts, 662 F.2d 1981 (8th Cir. 1981), the Supreme Court noted “there is no indication that the beeper was used in any way to reveal information” from “within the cabin.”
“As we have noted, nothing in this record indicates that the beeper signal was received or relied upon after it had indicated that the drum containing the chloroform had ended its automotive journey at rest on respondent’s premises in rural Wisconsin.” U.S. v. Knotts, 460 U.S. at 284-85.
The concurring opinion elaborates:
“...Katz v. United States, 389 U.S. 347 (1967), made quite clear that the Fourth Amendment protects against governmental invasions of a person’s reasonable ‘expectation[s] of privacy’, even when those invasions are not accompanied by physical intrusions. Cases such as Silverman v. United States, 365 U.S. 505, 509-12 (1961) illustrate that the interior of a home is indeed within a persons reasonable expectation of privacy. When the government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment even if the same information could have been obtained by other means. I do not believe that Katz, or its progeny, have eroded that principle. Cf. The Supreme Court, 1979 Term, 94 HARV. L. REV. 75, 203-04 (1980).”
U.S. v. Knotts, 460 U.S. at 286.
It is worth noting that a panel of the Fifth Circuit has held that where an electronic transmitting device had been secreted within an area in which defendant had a reasonable expectation of privacy, any monitoring from such a “zone of privacy” requires a warrant. U.S. v. Butts, 710 F.2d 1139, 1149 (5th Cir. 1983).
“The passenger compartment or cabin of a vehicle is an enclosed, self-contained area somewhat sheltered from public view and unexposed to public contact. Given these qualities, it seems self-evident that the interior of a vehicle outranks its rear bumper in its location on the privacy scale. A yacht, an ocean liner, a mobile home, a camper, and Air Force One are all vehicles, yet surely their interiors are cloaked by privacy’s veil. Thus, we believe the interior installation of a tracking device implicates privacy interests more significantly than those considered in Michael.” U.S. v. Butts, 710 F.2d at 1149.
See also U.S. v. Brock, 667 F.2d 1311, 1319 (9th Cir. 1982), cert. denied, 460 U.S. 1022 (1983) [monitoring of beeper lawfully installed in car traveling on public roads not search for Fourth Amendment purposes]; U.S. v. Michael, 645 F.2d 252, 257-58 (5th Cir.) [en banc], cert. denied, 454 U.S. 950 (1981) [monitoring of lawfully installed beeper on vehicle traveling on public roads lawful because legitimate expectation of privacy substantially reduced by exposure of car to public view]; U.S. v. Cotton, 770 F.2d 940 (11th Cir. 1985) [tracking on radar provides an independent source for plane’s location and will therefore excuse illegal search through independent source doctrine].
DURATION OF TRACKING
Beeper warrants should specify a date or time limit upon the duration of the intrusive authority to monitor and maintain surveillance, but the lack of any such termination date will not render such warrant invalid. U.S. v. Butts, 710 F.2d 1139 (5th Cir. 1983) [en banc]; See also U.S. v. Maynard, 615 F.3d 544 (DC Cir. 2010), aff’d sub nom. U.S. v. Jones, 132 S. Ct. 945 (2012). But see U.S. v. Cofer, 444 F. Supp. 146 (W.D. Tex. 1978) [the court imposed a “30 day” limitation period].
“The Government seems to contend that the beeper is so much less intrusive than telephone wire tapping that there is no need for the warrant to specify a termination date for the surveillance. While the intrusiveness may be less than that of wiretapping the court cannot countenance the potentially unlimited duration of this type of surveillance. Citizens have a right to think that the government will not track them for months on end by resort to the latest electronic gadgetry.” U.S. v. Cofer, 444 F. Supp. at 149.
See also U.S. v. Cady, 651 F.2d 290 (5th Cir. 1981) [duration determined by the actual period of monitored surveillance, not the maximum period allowed under the terms of the warrant];
U.S. v. Long, 674 F.2d 848 (11th Cir. 1982).
Cf. Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040(1967)[holding electronic surveillance without limit violates Fourth Amendment]; U.S. v. Lamonge, 458 F.2d 197 (6th Cir. 1972) [wiretap case]; U.S. v. Holmes, 521 F.2d 859, 864-66 (5th Cir. 1976) [panel opinion] [no distinction between “beepers” and electronic wiretaps, emphasizing the unlimited duration of the authorization in that case].
STANDING TO CONTEST INSTALLATION
To contest the installation of an electronic surveillance device, the defendant must show a legitimate expectation of privacy in the place the device is to be installed. In U.S. v. Braithwaite, 709 F.2d 1450, 1454 (11th Cir. 1983), the court held that when the defendant had no legitimate expectation of privacy in a chemical drum to which a beeper had been attached or in a garage in which the drum had been stored, the defendant lacked standing to assert a Fourth Amendment violation. U.S. v. Braithwaite, 709 F.2d at 1454. In Amnesty International v. Clapper, 667 F.3d 163 (2nd Cir. 2011), the Obama administration’s contention that various groups lacked standing to contest eavesdropping because they failed to show they were the subject of such activity or suffered hardships because of it was rejected for the second time.
USE OF ILLEGALLY OBTAINED EVIDENCE IN SUPPORT OF WIRETAP APPLICATION
The Supreme Court has held that with respect to electronic eavesdropping “Congress …may extend the exclusionary rule and provide that illegally seized evidence is inadmissible against anyone for any purpose”. Alderman v. U.S., 394 U.S. 165, 175, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). Congress has enacted just such a statutory grant of “standing” to courts and federal wiretaps. Specifically, Title III of the Omnibus Crime Control Act expressly grants standing to any “person who was a party to any intercepted wire or oral communication.”
U.S.C. § 2510(11). Additionally, the statute expressly provides that such an “aggrieved person …may move to suppress the contents of any wire or oral communication intercepted …or evidence derived therefrom” on the grounds that the communication was unlawfully intercepted, the order of authorization was insufficient, or the interception was not made in conformity with the order of authorization. 18 U.S.C. § 2518(10)(a). Obviously, Congress intended to confer upon those individuals whose conversations were vicariously intercepted via wiretap, the same right to challenge the legality of that intrusion as the party whose telephones or conversations the wiretap was directed.
Likewise, the Title III statutory exclusionary rule applicable to wiretaps is in many other respects broader than the judicial exclusionary remedy designed to vindicate traditional Fourth Amendment violations. See U.S.
- Dorfman, 690 F.2d 1217, 1227-29 (7th Cir. 1982). For example, while the Fourth Amendment exclusionary rule has been held to apply to criminal trials, § 2515 expressly applies the wiretap’s exclusionary rule to any proceeding, civil or criminal. While the Fourth Amendment exclusionary rule does not apply to grand juries. U.S. v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).
Title III’s suppression remedy applies even to a grand jury witness. See 18 U.S.C. § 2515; 18 U.S.C. § 3504; Gelbard v. U.S., 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972).
Similarly, § 2510(11) provides statutory standing to those whose conversations have been overheard even though it was not their telephone equipment or premises that were the target of the intrusion.
“For example, Congress clearly intended that the provisions of section 2518(10)(a), which defines the class entitled to make a motion to suppress, rather than judicially-developed notions of “standing”, would control the question of who could bring such a motion.” U.S. v. Vest, 813 F.2d 477, 482 (1st Cir. 1987).
Thus, in U.S. v. Baker, 589 F.2d 1008, 1012 n.6 (9th Cir. 1979), the Ninth Circuit held under similar circumstances, that where a defendant’s conversations are intercepted by an otherwise valid wiretap (the probable cause for which was established through prior illegal wiretaps of others) the defendant has standing to complain, even though his conversations had not been intercepted by the prior illegal intrusions.
“Where a particular wiretap otherwise valid constitutes the ‘fruits of an illegal wiretap’, a particular defendant who could claim no flaws in the tap of his own telephone may have standing to question the validity of other tapes by reason of a failure in the foundational affidavit to set forth facts adequately showing for all of the wiretaps that traditional investigative techniques had been attempted, had failed or were unlikely to succeed.” U.S. v. Baker, 589 F.2d 1008, 1012 n.6 (9th Cir. 1979).
Again, in U.S. v. Marcello, 508 F. Supp. 586 (E.D. La. 1981), aff’d on other grounds, and U.S. v. Roemer, 703 F.2d 805 (5th Cir.), cert. denied, 464 U.S. 935 (1983), the District Court held that defendants such as those before the Court have standing to complain about the use of illegally obtained evidence in establishing probable cause to eavesdrop upon conversations to which they were privy, even though they may not have been a party directly “aggrieved” by the initial illegality.
“The government has challenged the standing of defendants Marinello, Roemer, and Young to attack the early wiretap orders on grounds that as to these orders they are not ‘aggrieved persons’ within the meaning of 18 U.S.C. § 2518(10(a) and Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). I agree, however, with defendants’ contention that each subsequent wiretap order issued in the long series of orders in this case built upon previously issued orders to establish probable cause. It is clear that all defendants eventually became ‘aggrieved persons’ at one point or another in the series of wiretap orders. Since the early wiretap orders formed the linchpin upon which all later findings of probable cause and the wiretap orders were based, I conclude that all defendants have standing to raise these challenges to the wiretap orders. Therefore, I have allowed counsel for all defendants to present their arguments on these motions.” U.S. v. Marcello, 508 F. Supp. 586 at n.6.
Contra U.S. v. Fury, 554 F.2d 522, 526 (2d Cir. 1977); U.S. v. Lanese, 385 F. Supp. 525, 527 (N.D. Ohio 1974).
DEFENDANT AS EAVESDROPPER
When the defendant is the one who illegally intercepts and records a telephone conversation, the recording will be admissible against him regardless of the language in the Wiretap Act suggesting that same is inadmissible.
U.S. v. Underhill, 813 F.2d 105 (6th Cir. 1987) [defendant making recordings in furtherance of illegal gambling activities; court refuses to read statute literally with absurd results].