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Perry v. State12/10/1999
2112-309. The report explains the purpose of 18 U.S.C. § 2517(4). That "provision is intended to vary the existing law only to the extent it provides that an otherwise privileged communication does not lose its privileged character because it is intercepted by a stranger." 1968 U.S.C.C.A.N. at 2189.
The concern of § 10-407(d) and 18 U.S.C. § 2517(4) is interception by a stranger, and it is immaterial whether that interception is or is not a violation. To encompass all interceptions Congress and the General Assembly used the language "intercepted in accordance with, or in violation of." " n accordance with" should be given the same meaning in § 10-407(c) as it has in the immediately following § 10-407(d). There is no limbo category.
Also instructive is United States v. Baranek, 903 F.2d 1068 (6th Cir. 1990), an appeal by the Government from a suppression order. There, federal agents had been authorized by court order to tap the telephone of a suspected drug dealer. Someone on the dealer's premises inadvertently left the telephone in the kitchen of the dealer's residence off of the hook and not in use. Later there was a face-to face, oral conversation in the kitchen between the dealer and a co-conspirator which was carried over the open telephone and was recorded on the wiretap equipment. The District Court suppressed the conversation because there had been an oral interception, whereas the court order authorized only a wire interception. The Sixth Circuit reversed, analogizing to the plain view doctrine in search and seizure law. Id. at 1071. The court said that " here, as here, we have a case with a factual situation clearly not contemplated by the statute, we find it helpful on the suppression issue (as opposed to the question of whether there was a violation of the authorization order) to look to fourth amendment law." Id. at 1072. In the matter before this Court, Horn's inadvertent interception of his conversation with Perry is similar to the telephone's being left off of the hook in Baranek. Regardless of whether one agrees or disagrees with the manner in which the government obtained the content of the conversation in Baranek, in the instant matter it is clear that the State's acquisition of the tape was lawful. Here, the combination of inadvertent interception, even though without the consent of all (or any) participants, coupled with lawful acquisition of the content by the State, should result in admissibility. Also incompatible with the majority's analysis are United States v. Vest, 813 F.2d 477 (1st Cir. 1987) and United States v. Phillips, 540 F.2d 319, cert. denied, 429 U.S. 1000, 97 S. Ct. 530, 50 L. Ed. 2d 611 (1976). In each of these cases, a private individual who was not acting as a government agent willfully violated the federal act by intercepting oral communications. In each case, when ruling to suppress that evidence, the appellate court followed a route that took it from § 2515 (suppression) to § 2511(1) (violation) without meandering through or finding any significance in § 2517(3) (use as testimony).
For these reasons I would affirm.
Judge Karwacki has authorized me to state that he joins in the views expressed herein.
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