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RATHBUN v. UNITED STATES.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT.
Argued October 29, 1957.
Decided December 9, 1957.
Contents of a communication overheard by police officers on a regularly used telephone extension, with the consent of the person who is both the subscriber to the extension and a party to the conversation, are admissible in a criminal trial in a federal court; because such use of a regularly used telephone extension does not involve any "interception" of a telephone message, as Congress intended that word to be used in 605 of the Federal Communications Act. Pp. 107-111.
236 F.2d 514, affirmed.
Thomas K. Hudson argued the cause and filed a brief for petitioner.
John F. Davis argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Olney and Beatrice Rosenberg.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
This case concerns the issue of whether the contents of a communication overheard on a regularly used telephone extension with the consent of one party to the conversation are admissible in federal court. 1 Petitioner was convicted of violations of 18 U.S.C. 875 (b) and (c) [355 U.S. 107, 108] for transmitting an interstate communication which threatened the life of one Sparks in order to obtain from him a stock certificate which Sparks held as collateral for a loan. On March 16, 1955, petitioner, who was in New York, spoke by telephone with Sparks, who was in Pueblo, Colorado. Anticipating another call from petitioner, Sparks requested that members of the Pueblo police force overhear the conversation. When petitioner phoned Sparks in the early morning of March 17, two police officers at Sparks' direction listened to the conversation on a telephone extension in another room of the Sparks home. This extension had not been installed there just for this purpose but was a regular connection, previously placed and normally used. At the trial the police officers testified over timely objection that during this conversation petitioner had threatened Sparks' life because he would not surrender the certificate. Petitioner was convicted and the Court of Appeals affirmed. 236 F.2d 514. We granted certiorari. 352 U.S. 965 .
Benanti v. United States, ante, p. 96, determined that information obtained and divulged by state agents in violation of Section 605 of the Federal Communications Act 2 is inadmissible in federal court. The pertinent portion of Section 605 states:
The telephone extension is a widely used instrument of home and office, 6 yet with nothing to evidence congressional intent, petitioner argues that Congress meant to [355 U.S. 107, 110] place a severe restriction on its ordinary use by subscribers, denying them the right to allow a family member, an employee, a trusted friend, or even the police to listen to a conversation to which a subscriber is a party. Section 605 points to the opposite conclusion. Immediately following the portion quoted above, the statute continues:
The error in accepting petitioner's argument is brought into sharper focus by the fact that Section 605 is penal in nature, the first violation being punishable by a fine of not more than $10,000 or by imprisonment for a term not exceeding one year, or both. 8 For example, it follows from petitioner's argument that every secretary who listens to a business conversation at her employer's direction in order to record it would be marked as a potential federal criminal. It is unreasonable to believe that Congress meant to extend criminal liability to conduct which is wholly innocent and ordinary.
Common experience tells us that a call to a particular telephone number may cause the bell to ring in more than one ordinarily used instrument. Each party to a telephone conversation takes the risk that the other party may have an extension telephone and may allow another to overhear the conversation. When such takes place there has been no violation of any privacy of which the parties may complain. Consequently, one element of Section 605, interception, has not occurred.
[ Footnote 2 ] 48 Stat. 1103, 47 U.S.C. 605.
[ Footnote 3 ] We do not decide the question of whether 605 is violated where a message is intercepted but not divulged since the police officers did [355 U.S. 107, 109] divulge the contents of the overheard conversation when they testified in court. Cf. Benanti v. United States, ante, p. 96.
[ Footnote 4 ] United States v. Polakoff, 112 F.2d 888; James v. United States, 89 U.S. App. D.C. 201, 191 F.2d 472; United States v. Hill, 149 F. Supp. 83; see Reitmeister v. Reitmeister, 162 F.2d 691.
[ Footnote 5 ] United States v. White, 228 F.2d 832; Flanders v. United States, 222 F.2d 163; United States v. Sullivan, 116 F. Supp. 480, affirmed, 95 U.S. App. D.C. 78, 219 F.2d 760; United States v. Lewis, 87 F. Supp. 970, reversed on other grounds, Billeci v. United States, 87 U.S. App. D.C. 274, 184 F.2d 394; cf. Rayson v. United States, 238 F.2d 160; United States v. Bookie, 229 F.2d 130; United States v. Pierce, 124 F. Supp. 264, affirmed, 224 F.2d 281.
[ Footnote 6 ] For example, in 1934 the Bell Telephone System, including affiliates, had 1,315,000 extension telephones out of a total of 13,378,000. In 1956 the System had 8,465,000 extension telephones out of a total of 50,990,000. Exhibit 1364 of the Federal Communications Commission Special Telephone Investigation; Federal Communications Commission, "Statistics of the Communications Industry in the United States for the year ended December 31, 1956."
[ Footnote 7 ] See United States v. Polakoff, 112 F.2d 888, 889:
[ Footnote 8 ] 48 Stat. 1100, 47 U.S.C. 501. Additional violations are punishable by the same fine and not more than two years' imprisonment, or both.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE DOUGLAS joins, dissenting.
Although this Court had, in Olmstead v. United States, 277 U.S. 438 , decided that neither the Fourth Amendment nor the general judicial principles governing criminal trials in United States courts barred evidence [355 U.S. 107, 112] obtained through interception of telephone communications by law-enforcing officers without the consent of the sender, the Congress a few years later provided that
In this case, petitioner's conviction was based on the testimony of a police officer who listened in on a telephone communication made by petitioner, and such listening-in was not "authorized by the sender," to wit, the petitioner. It is suggested that the interception, for such it was, in the clear meaning of the term for carrying out its function - an intrusion by way of listening to the legally insulated transmission of thought between a speaker and a hearer - does not fall within the prohibition of 605, because it was carried out by means of "a regularly used telephone extension with the consent of one party." But, surely, the availability of a "regularly used telephone extension" does not make 605 inoperative. The fact that the Court relies on "the consent of one party" evidently implies that it would not be without the purview of 605 for a police officer to conceal himself in a room of a house or a suite of offices having several "regularly used telephone extensions" and surreptitiously to utilize such an extension to overhear telephone conversations.
It is said that the overhearing in this case was "with the consent of one party." But the statute is not satisfied with "the consent of one party." The statute says "no person not being authorized by the sender." Since this Court, in Nardone, read "no person" to mean no person, it is even more incumbent to construe "sender" to mean sender, as was the petitioner here, and not to read "sender" to mean one of the parties to the communication, whether sender or receiver. It is further suggested that Congress must have been aware of the wide use of telephone extensions and the practice of listening-in on extensions. In the first Nardone case this Court rejected the argument that Congress had knowledge of the employment of federal agents "to tap wires in aid of detection and conviction of criminals." 302 U.S., at 381 . But the Court refused to qualify the rigorous policy of Congress as expressed by its enactment. And today, in Benanti v. [355 U.S. 107, 114] United States, the Court rejects, and if I may say so rightly, the plausible contention that the well-known legislative authorization of wire-tapping by some of the States ought to be deemed to have qualified the strict purpose of Congress.
It is suggested, however, that it is one of the accepted modes of carrying on business in our time to have secretaries listen in on conversations by their principals. A secretary may fairly be called the employer's alter ego. And so, a secretary is fairly to be deemed as much of an automatic instrument in the context of our problem as a tape recorder. Surely a police officer called in to facilitate the detection of crime is not such an alter ego. His participation in telephone communications when not authorized by the sender occupies precisely the same position that it occupied in the Olmstead case when this Court sanctioned the practice, and in the Nardone cases where this Court rigorously enforced the prohibition by Congress of what theretofore was a lawful practice.
Sharing the views expressed by Judge Learned Hand in United States v. Polakoff, 112 F.2d 888, and Reitmeister v. Reitmeister, 162 F.2d 691, I would reverse the judgment. [355 U.S. 107, 115]