State v. Capell , 156 Or. App. 582 ( 1998 )

EDMONDS, J.

Defendant appeals his convictions for possession and delivery of a controlled substance. ORS 475.992(4)(a); ORS 475.992(l)(a). He assigns as error the denial of his motion to suppress evidence. We affirm.

The facts are uncontroverted. Zowie Clark, acting on her own initiative and without the encouragement of any law enforcement agent, recorded a phone conversation that occurred in her residence between her 19-year-old son and defendant. The son lived with Clark, who provided for his support. The conversation was recorded with a component of her telephone equipment. In the conversation, defendant and Clark’s son discussed an illegal drug transaction that was to occur later that day. Clark turned the recording over to the police, who used the information to arrest defendant. Defendant moves to suppress evidence of a controlled substance found in his possession and his recorded statements pursuant to 18 USC §§ 2510 to 2521 (the act). No issue under Oregon law was raised to the trial court. The trial court ruled that the statutes did not apply to the circumstances in this case. Defendant appeals after being found guilty in a stipulated facts trial.

18 USC § 2511 provides, in part:

“(1) Except as otherwise specifically provided in this chapter any person who —

“(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;

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“shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).”

18 USC § 2511(4) provides for criminal penalties for violating 18 USC § 2511(1), and 18 USC §§ 2511(5), 2520 provide for civil penalties for the same violation.

18 USC § 2510(5)(a)(i) provides the basis for an exception to section 2511(1). It defines “electronic, mechanical, or other device” to mean

“any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than—

“(a) any telephone * * *, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a provider of wire or electronic service communication in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business * * *[.]”

Also, 18 USC § 2515 provides:

“Whenever 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.”

Defendant stipulates that the tape recording was made by Clark using a recording device connected to the telephone in her family home and that she was concerned about her son’s well-being. He argues, however, that those facts do not defeat suppression of the evidence under the act. 18 USC § 2510(5)(a)(i) is commonly referred to by the federal case law as the “domestic telephone extension exception” to section 2511. Most of the federal courts that have considered the reach of the act in the context of a parent-child relationship have held that the exception applies to the recording of conversations that are pertinent to a child’s well-being. They hold that Congress did not intend to regulate the use of a personal telephone system that is tantamount to overhearing a conversation on one’s phone in one’s residence. See, e.g., Newcomb v. Ingle, 944 F2d 1534, 1536 (10th Cir 1991), cert den 502 US 1044 (1992) (holding “[t]here is no persuasive reason why Congress would exempt a business extension and not one in the home. The difference between listening on the extension and tapping the line within a home in the context here is not material.”). See also Scheib v. Grant, 22 F3d 149, 154 (7th Cir), cert den 513 US 929 (1994) (holding that the use of an extension phone to record a son’s phone conversation with his mother fell within section 2510(5)(a)(i) because “[w]e cannot attribute to Congress the intent to subject parents to criminal and civil penalties for recording their minor child’s phone conversations out of concern for the child’s well-being”); Anonymous v. Anonymous, 558 F2d 677, 679 (2d Cir 1977) (holding that the husband’s recording of the wife’s telephone conversations with her eight-year-old daughter regarding a custody dispute did “not rise to the level of a violation of [the] statute”).

Although we are not bound by decisions of the lower federal courts, we may find their decisions to be instructive when we interpret federal statutes. Derby Assn. Trust v. Dept. of Ins. and Finance, 114 Or App 389, 392 n 5, 835 P2d 149 (1992). Our goal, of course, is to carry out the intent of Congress when it promulgated the act. The texts of sections 2511 and 2510(5)(a)(i), when read together, demonstrate an intent by Congress to exempt parents from criminal and civil penalties when they act in the interests of the well-being of their children. The reference to the use of telephone equipment issued to the user and being used by the user in the ordinary course of business includes use for personal affairs. In sum, the facts in this case are the kind of facts that fall within the language of section 2510(5)(a)(i).

To the extent that there could be any doubt about what Congress would have intended in light of the facts in the case, the legislative history underlying the act expressly states that Congress did not want “to make it a crime for a father to listen in on his teenage daughter or some such related problem.” Hearings on the Anti-Crime Program Before Subcomm No 5 of the H J Comm, 90th Cong, 1st Sess, 901 (1967). Finally, the recording of conversations by a parent in the interest of a son’s well-being simply is not the kind of concern that Congress had when it focused on interception of communications by private individuals. Rather, its concern was with wiretapping for purposes of commercial espionage and marital litigation. See S Rep No 1097, 90th Cong, 2d Sess, reprinted in 1968 US Code Cong & Ad New, 2274. In light of the language of 18 USC § 2510(5)(a)(i), the legislative history and the purpose of the act, we conclude that Clark’s recording of the telephone conversation between her son and defendant by telephone equipment in her residence did not violate 18 USC § 2511.

Even if a violation of 18 USC § 2511 occurred, the suppression of the tape recording and its derivative evidence under section 2515 would be contrary to Congressional intent, as evidenced by a decision of the United States Supreme Court and by the legislative history underlying the statute. In Scott v. United States, 436 US 128, 98 S Ct 1717, 56 L Ed 2d 168 (1978), the officers intercepted, pursuant to a court order for a one-month period, virtually all conversations that occurred on a particular telephone. Approximately 40 percent of the intercepted calls were calls authorized to be intercepted by the order. The act requires that court-authorized wiretapping or electronic surveillance be conducted in such a manner as to minimize the interception of communications. The petitioners sought exclusion of the evidence of the intercepted conversations before the Supreme Court on the ground that section 2515 required suppression, even though suppression would not have been required under the Fourth Amendment. The Court rejected that argument, holding:

“Any lingering doubt [about petitioner’s argument] is dispelled by the legislative history which, as we have recognized before in another context, declares that § 2515 was not intended ‘generally to press the scope of the suppression role beyond present search and seizure law.’ S. Rep., 1097, 90th Cong., 2d Sess., 96 (1968).” Scott, 436 US at 139.

The Sixth Circuit in United States v. Murdock, 63 F3d 1391 (6th Cir 1995), cert den 517 US 1187 (1996), held similarly. Although that court declined to hold that there was a blanket domestic exception¹ under the act, it also held that suppression was not required because the scope of the suppression provision under section 2515 tracks the Fourth Amendment. Under the Fourth Amendment, the deterrent of unlawful police conduct is the goal of the exclusionary rule. Terry v. Ohio, 392 US 1, 88 S Ct 1868, 20 L Ed 2d 889 (1968). Here the police engaged in no unlawful conduct, so the goal of the exclusionary rule would not be furthered by suppression.

Defendant’s other arguments do not warrant discussion. For these reasons, we conclude that the trial court correctly denied defendant’s motion to suppress.

Affirmed.

1 In Murdock, the defendant was convicted of tax evasion based on evidence of a telephone conversation recorded by his wife disclosing a bribe that the defendant had received.