Rickenbaker v. Rickenbaker , 28 N.C. App. 644 ( 1976 )

222 S.E.2d 463 (1976) 28 N.C. App. 644

Angelus Chambers RICKENBAKER
v.
Thomas C. RICKENBAKER.

No. 7526DC781.

Court of Appeals of North Carolina.

March 3, 1976.

DeLaney, Millette & DeArmon by Ernest S. DeLaney, Jr., and Ernest S. DeLaney, III, Charlotte, for plaintiff-appellee.

Warren C. Stack and Richard D. Stephens, Charlotte, for defendant-appellant.

ARNOLD, Judge.

The wife (plaintiff) argues that evidence obtained by her husband (defendant) as a result of tapping her telephone should be excluded pursuant to 18 U.S.C. § 2510 et seq. The husband contends that the federal statutes, being a part of the Omnibus Crime Control and Safe Streets Act, do not apply to the facts of this domestic matter. He further asserts that even if the federal act does apply the interception was accomplished through telephone equipment used in the ordinary course of business to bring him within the statutory exception.

18 U.S.C. § 2515 provides: "Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter."

18 U.S.C. § 2511(1) makes the willful interception of wire or oral communication unlawful. 18 U.S.C. § 2510(4) defines interception as "the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device." Electronic, mechanical or other device "means any device or apparatus which can be used to intercept a wire or oral communication other than—(a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a communications common carrier in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business; or (ii) being used by a communications common carrier in the ordinary course of its business, or by an investigative or law enforcement officer in the ordinary course of his duties. . ." 18 U.S.C. § 2510(5).

While defendant correctly contends that 18 U.S.C. § 2510 et seq. is a criminal statute it does not necessarily follow that the Act must apply only to criminal cases. The language in 18 U.S.C. § 2515 clearly excludes the contents of intercepted communications via telephone from being received in evidence in "any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter."

Evidence adduced at the hearing establish that the following facts existed at the time of the electronic interception:

1. The parties were not living together as husband and wife.

2. The wife was living in the former marital home.

3. The husband electronically intercepted the wife's telephone communications.

4. The wife did not consent to or know of the electronic interception.

These facts must be examined to determine whether the husband's interception of the wife's telephone communications violated the Act under consideration.

Defendant maintains that the telephone extension involved was furnished to him as a "subscriber" by a "communications common carrier in the ordinary course of its business," and that the extension telephone was being used by defendant in the "ordinary course" of his business. The trial court found, however, that the defendant was not using the extension telephone in his office in the ordinary course of his business. This finding is clearly supported by the evidence which showed that the extension was located in a locked supply closet in defendant's office, and it was never used for anything other than recording communications going into plaintiff's home. Moreover, it was defendant himself who installed the recording device to this extension telephone and not the "communications common carrier in the ordinary course of its business."

Defendant also contends that the statute does not prohibit a spouse from intercepting telephone communications to the other spouse. He cites authority such as Simpson v. Simpson, 490 F.2d 803 (Fifth Cir. 1974), and Beaber v. Beaber, 41 Ohio Misc. 95, 322 N.E.2d 910 (1974), which would seem to allow interceptions within the "marital home" by recording devices located in the marital or family home. This case is distinguished from the facts in the cases cited by defendant. Undisputed evidence establishes that the marital home had ceased to exist, and there was no extension and recording device located inside the marital home. The recording device and extension were in defendant's office. See Markham v. Markham, Fla.App., 265 So.2d 59, 62 (1972), where the Florida court reached a contrary result from cases cited by defendant and stated, "A husband has no more right to tap a telephone located in the marital home than has a wife to tap a telephone situated in the husband's office."

There are no circumstances in this case to bring defendant within any exceptions provided by 18 U.S.C. § 2510(5). Therefore, that portion of the order suppressing all evidence obtained from the defendant's electronic interception of plaintiff's telephone communications must be affirmed. However, that part of the order which prohibits the introduction of any evidence pertaining to the allegations of paragraph 8 of the supplemental answer is error and must be vacated. Evidence not resulting from the interception of the telephone communications may be available which would pertain to paragraph 8 of the supplemental answer.

The order is affirmed to the extent that it excludes all evidence resulting from the interception of plaintiff's telephone communications. The order is vacated to the extent that it excludes all evidence pertaining to the allegations of paragraph 8 of the supplemental answer.

Affirmed in part and vacated in part.

PARKER, J., concurs.

BROCK, C. J., dissents.

BROCK, Chief Judge (dissenting).

I dissent from that portion of the majority opinion which affirms the suppression of defendant's evidence resulting from the interception of plaintiff's telephone communications.