W. Thomas Holmes v. Waldon v. Burr, Sheriff of Pima County, Arizona , 486 F.2d 55 ( 1973 )

OPINION

Before BARNES and HUFSTEDLER, Circuit Judges, and LUCAS,^* District Judge.

BARNES, Circuit Judge:

W. Thomas Holmes, appellant, is a former Arizona attorney convicted of grand theft of money under false pretenses in an Arizona state court. The state court found that Holmes fraudulently obtained $1,000 from a client, Sanford Marburger, a Tucson liquor store proprietor. Marburger claimed that the $1,000 was given to Holmes for payment of a fine imposed for an alleged liquor license violation of which Holmes had informed him. Subsequent to Holmes’ receipt of the money, Mar-burger discovered that no fine had been levied, and no fee had been paid on his behalf.

In cooperation with the Arizona State Liquor Department, Marburger engaged petitioner in a telephone conversation from the Liquor Department office on August 23, 1968. The parties discussed the alleged license violation and fine. With Marburger’s consent, but without a warrant, the conversation was overheard and recorded by the state officials. The tape recording was admitted into evidence at Holmes’ trial over timely objection.

Holmes unsuccessfully appealed his conviction alleging in part that the recording violated his right to privacy under the Fourth and Fourteenth Amendments, State v. Holmes, 13 Ariz. App. 357, 476 P.2d 878 (Ct.App.1970). Further state remedies were exhausted, and a petition for Writ of Habeas Corpus was filed in the United States District Court for the District of Arizona pursuant to Chapter 153 of Title 28, United States Code. Upon a hearing, the petition was denied. The case is here on appeal of that decision. Our jurisdiction rests in 28 U.S.C. §§ 1291 and 2253.

Holmes alleges several errors. We find only one question to have merit: whether the eavesdropping and recording of the Marburger-Holmes conversation violated Holmes’ right to privacy pursuant to the Fourth and Fourteenth Amendments; or more specifically, his right to be secure in his person from unreasonable searches and seizures. For this reason, and for purposes of judicial economy, we limit our discussion to this issue.

Prior to the Supreme Court’s ruling in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), government interception of oral communications was permissible where one party to the conversation gave prior consent. On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952); Rathbun v. United States, 355 U.S. 107, 78 S.Ct. 161, 2 L.Ed.2d 134 (1957); Lopez v. United States, 373 U.S. 427, 83 S. Ct. 1381, 10 L.Ed.2d 462 (1963). And see generally, Annot., § III.B 97 A.L.R. 2d 1283, 1302; Annot., § 5, 9 A.L.R.3d 423, 434. It is now argued by Holmes, and it is the position of the dissent, that Katz makes consensual eavesdropping by the Government unconstitutional. We hold that the principles enunciated in On Lee, Rathbun, and Lopez, are not unconstitutional, and therefore remain binding on the federal courts. United States v. Puchi, 441 F.2d 697 (9th Cir. 1971), cert, denied 404 U.S. 853, 92 S.Ct. 92, 30 L.Ed.2d 92 (1971).

Each of these cases is in certain respects factually similar to the matter before us. On Lee v. United States, supra, involved a face to face conversation between an indicted, but uneonvieted, criminal defendant, and an old friend and accomplice, turned government informant. The informant elicited incriminating statements from On Lee to which the government informant was permitted to testify at On Lee’s trial. Holmes argues, and the dissent concludes, that On Lee has been so eroded by recent Supreme Court decisions, particularly Katz v. United States, supra that it is no longer a controlling precedent. While we do not find that On Lee is not controlling, we do note that it has been severely criticized. See the concurring opinion of Warren, C. J., in Lopez v. United States, supra, 373 U. S. at 441-446, 83 S.Ct. 1381. The thrust of the criticism, however, has been directed to the prosecution’s failure in On Lee to call the informant-accomplice to testify. Unlike the posture of the informant in On Lee, Marburger testified himself; and the conversation, which was recorded here, was only used to corroborate Marburger’s testimony — it was not primary evidence.

The consenting party to the intercepted conversation in Rathbun v. United States was the victim of a crime perpetrated by the non-consenting party, as Marburger was the victim of a crime perpetrated by Holmes. Similarly, the eavesdropping was accomplished through a regularly used telephone extension; and the evidence obtained was used for corroboration purposes. With re-speet to the parties’ privacy rights, the Supreme Court stated:

“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.” Rathbun v. United States, supra, 355 U.S. at 111, 78 S.Ct. at 164.

The only real distinction between Rathbun and Holmes is that Holmes’ conversation was recorded. However, since the constitutional question centers around the interception by a government third party, we do not find the distinction in the means of disclosure disposi-tive.

We also note that Rathbun was approved by the Supreme Court in a decision subsequent to Katz. Lee v. Florida, 392 U.S. 378, 381, 88 S.Ct. 2096, 20 L. Ed.2d 1166 (1968).

In Lopez v. United States, supra, an Internal Revenue Agent was equipped with a pocket tape recorder for the purpose of obtaining corroborative evidence of a bribe. During the recorded conversation, Lopez made additional bribes; and he was convicted only for the bribes made during that conversation. In upholding the admission into evidence of the recording, the Supreme Court first noted that the agent had a clear right to be present at the conversation in Lopez’s office, and to which the agent had been invited, and to testify as to the subject matter of the conversation at Lopez’s trial. For this reason, there was

“no ‘eavesdropping’ whatever in any proper sense of that term. The Government did not use an electronic device to listen in on conversations it could not otherwise have heard. Instead, the device was used only to obtain the most reliable evidence possible of a conversation in which the Government’s own agent was a participant and which that agent was fully entitled to disclose.” Lopez v. United States, supra, 373 U.S. at 439, 83 S.Ct. at 1388.

With respect to an alleged' invasion of Lopez’s right to privacy, the court stated that “the risk that (Lopez) took in offering a bribe to (the Government agent) fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording.” Id,.; Cf. Hoffa v. United States, 385 U.S. 293, 302, 87 S.Ct. 408,17 L.Ed.2d 374 (1966).

Although the instant case is factually closer to Rathbun (because Rathbun was concerned with an eavesdropping, and there was no eavesdropping present in Lopez), the Court’s concern in Lopez with the preservation of accurate evidence is relevant to the Marburger-Holmes conversation. In this connection, we find that the use of the recording at Holmes’ trial insured that the jury would hear exactly what Marburger heard. In her dissent, Judge Hufstedler states that one of the dangers of the recorded conversation is that the recording does not record facial expressions or other bodily gestures inherent in normal conversation. Without discussing the validity of this concern, we merely note that it is not appropriate under the facts of this case: facial expressions and bodily gestures were not transmitted over the telephone to Marburger; and the jury obtained the precise communication that Marburger received.

Katz v. United States is said to make the holdings in On Lee, Rathbun, and Lopez nugatory, not because of the factual holding in Katz, but because of the principles enunciated therein. In Katz a listening and recording device was attached to a public telephone booth by Government officials. No warrant had been obtained, and neither party to the conversation granted permission to the government for the latter’s action. The Supreme Court held that “the Fourth Amendment protects people, not places,” and disallowed the evidence, overruling the “trespass” approach to the Fourth Amendment in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L. Ed. 944 (1928), and Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L. Ed. 1322 (1942). The Court stated that the government’s activities “violated the privacy upon which . . . (Katz) justifiably relied while using the telephone booth and thus constituted a search and seizure within the meaning of the Fourth Amendment.” 389 U.S. at 351-353, 88 S.Ct. at 511-512.

We first turn to circuit decisions. My sister Hufstedler disposes of the conclusions of other circuits approving “consensual” electronic surveillance by a brief mention in footnote 30 of her dissent. She does not discuss them, but dismisses them by the conclusion: “None of them undertakes any independent analysis. . . . ”

Eight other circuits have supported this majority opinion (in addition to the Ninth) and declined to follow the position urged by the dissent.

Each have considered the question of the effect of Katz on consensual interception of oral communications. Each one has held that Katz is not applicable. Dancy v. United States, 390 F.2d 370 (5th Cir. 1968), in which Katz was held not to control the admission of a government agent’s testimony obtained via a transmitter on the person of an informant; Holt v. United States, 404 F.2d 914 (10th Cir. 1968), cert, denied, 393, U.S. 1086, 89 S.Ct. 872, 21 L.Ed.2d 779 (1969), in which the recorded conversation between the defendant and an informant was admitted for corroboration purposes, notwithstanding Katz; United States v. Kaufer, 406 F.2d 550 (2d Cir. 1969), aff’d per curiam on other grounds, 394 U.S. 458, 89 S.Ct. 1223, 22 L.Ed.2d 414 (1969), in which Lopez and Rathbun were held to permit the admission of a recorded conversation of a bribe directed to a government agent, notwithstanding Katz; United States v. Gardner, 416 F.2d 879 (6th Cir. 1969), where On Lee was held to control the admission of testimony by a government agent obtained via transmitter attached to the person of an informant; and in which the court held that On Lee would continue to apply until overruled by the Supreme Court, citing United States v. Miller, 316 F.2d 81, 83 (6th Cir. 1963), cert, denied, 375 U.S. 935, 84 S.Ct. 335, 11 L.Ed.2d 267 (1963); United States v. DeVore, 423 F.2d 1069 (4th Cir. 1970), cert, denied, 402 U.S. 950, 91 S.Ct. 1604, 29 L.Ed.2d 119 (1971), in which a recorded conversation between a government agent and the defendant was admitted into evidence for corroboration purposes on the basis of Lopez and Hoffa, Katz not controlling; United States v. Hickman, 426 F.2d 515 (7th Cir. 1970) , cert, denied, 402 U.S. 966, 91 S. Ct. 1632, 29 L.Ed.2d 130 (1971), where evidence was admitted at the defendant’s trial which was obtained by government agents listening on a regularly used extension telephone at a police station; and Rathbun and Lee v. Florida, supra, were held to control the question of the defendant’s right to privacy under the Fourth Amendment; United States v. Riccobene, 320 F.Supp. 196 (E.D.Pa.) (1970) , aff’d 451 F.2d 587 (3d Cir. 1971) , where Rathbun and Lopez were held to control the admission into evidence for corroboration purposes of a recorded telephone conversation between a government witness and the defendant, Katz not controlling; United States v. Skillman, 442 F.2d 542 (8th Cir. 1971), cert, denied, 404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63 (1971), in which the recorded conversation of the defendant and a co-conspirator was admitted into evidence for the purpose of impeachment on the basis of Lopez.¹

The Government argues that on the facts of this case, Katz is not controlling ; instead, they would have the court rely upon United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) . In White, a radio transmitter was attached to the person of a government informant through which incriminating statements made by White were overheard by government agents. The informant was unavailable for White’s trial and the government agents were permitted to testify as to the conversations they overheard. No warrant was obtained for the eavesdropping, but the agents did not have the consent of the informant. The Supreme Court found the evidence permissible notwithstanding the Fourth Amendment.

“If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.” United States v. White, supra, 401 U. S. at 751, 91 S.Ct. at 1126.

Holmes would have this Court disregard White on the ground that the electronic surveillance was pre-Katz. In Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969), the Supreme Court held that Katz only applied prospectively.² Hence, Holmes urges that White was decided on constitutional principles no longer applicable because of Katz. This position represents only a partial reading of White. The Supreme Court did find that White required application of pre-Katz doctrine; but the Court also reached the constitutional questions in view of Katz.

“In our view, the Court of Appeals misinterpreted both the Katz ease and the Fourth Amendment and in any event erred in applying the Katz case to events that occurred before that decision was rendered by this Court.” 401 U.S. at 747, 91 S.Ct. at 1124.

After distinguishing Katz on the grounds that there was no consensual interception, the Court disposed of the Fourth Amendment right to privacy claim.

“Hoffa v. United States, 385 U.S. 293 [87 S.Ct. 408, 17 L.Ed.2d 374] (1966), which was left undisturbed by Katz, held that however strongly a defendant may trust an apparent colleague, his expectations in this respect are not protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with the authorities. In these circumstances, ‘no interest legitimately protected by the Fourth Amendment is involved,’ for that amendment affords no protection to ‘a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.’ Hoffa v. United States, at 302 [87 S.Ct. at 413].” 401 U.S. at 749, 91 S.Ct. at 1125.

Holmes and my sister Hufstedler’s dissent strongly urge this Court to disregard White on the grounds that White was only a plurality decision, and therefore not binding precedent on this Court. In United States v. Puchi, supra, however, three judges of this circuit have found that White was binding precedent for the admission of a recorded telephone conversation between one Mitchell, a consenting private citizen and a seller of untaxed liquor. United States v. Puchi, supra, 441 F.2d at 700. Accord, United States v. Caracci, 446 F. 2d 173 (5th Cir. 1971), cert, denied, 404 U.S. 881, 92 S.Ct. 202, 30 L.Ed.2d 162 (1971); United States v. Quintana, 457 F.2d 874 (10th Cir. 1972), cert, denied, 409 U.S. 877, 93 S.Ct. 128, 34 L.Ed.2d 130 (1972); United States v. Dowdy, 479 F.2d 213 (4th Cir. 1973).

Notwithstanding United States v. Puchi, supra, we find that for purposes of finding the principles of Katz controlling on the issue of consensual third party interception of oral communications, we note that Black, J., concurred in White on the grounds that Katz was improperly decided. United States v. White, 401 U.S. at 754, 91 S.Ct. 1122. For this reason, White is a majority opinion.

For still another reason, we believe White is controlling. This Court is without power to overrule White. As is aptly stated in a recent District of Columbia Circuit case.

“Petitioner’s countervailing thesis questions both the original soundness of (certain) Supreme Court determinations and their continuing vitality in the light of later Supreme Court pronouncements. We think, however, that appellant presents those contentions in the wrong forum. [I]t is for the Supreme Court, not us, to proclaim error in its past rulings, or their erosion by its adjudications since.” Breakefield v. District of Columbia, 143 U.S.App.D.C. 203, 442 F.2d 1227 (1970), cert, denied 401 U.S. 909, 91 S.Ct. 871, 27 L.Ed.2d 807 (1971). Accord: Cross v. Bruning, 413 F.2d 678, 680 (9th Cir. 1969), cert, denied 396 U.S. 970, 90 S.Ct. 455, 24 L.Ed.2d 437 (1970).

In this opinion, we have not referred to the provisions of 18 U.S.C. § 2511 (2) (c); for while it specifically authorizes the consensual interception, we need not rely on it here.

Holmes and the dissent correctly note that the government’s conduct raises serious questions as to the nature and extent on one’s right to privacy. We agree. We conclude, however, that the question of the constitutionality of such conduct is foreclosed by White and Puchi. For this reason, as well as by reason of similar holdings in other circuits, and the total lack of any judicial precedents in support of appellant’s position, the decision of the district court denying the petition for Writ of Habeas Corpus is Affirmed.

* Honorable Malcolm M. Lucas, United States District Judge for the Central District of California, sitting by designation.

1 . Although United States v. Skillman, supra, was decided after the Supreme Court rendered its decision in United States v. White, infra, it was decided on pre-White analysis.

2 . The decision in Kate, supra, was rendered on December 18, 1967.