text: United States of America, Plaintiff-appellant, v. Gary Baranek, Defendant-appellee, 903 F.2d 1068 (6th Cir. 1990) :: Justia
  Justia › US Law › Case Law › Federal Courts › Courts of Appeals › Sixth Circuit › 1990 › United States of America, Plaintiff-appellant, v. Gary Baranek, Defendant-appellee
  United States of America, Plaintiff-appellant, v. Gary Baranek, Defendant-appellee, 903 F.2d 1068 (6th Cir. 1990)
  US Court of Appeals for the Sixth Circuit - 903 F.2d 1068 (6th Cir. 1990) Argued Oct. 13, 1989. Decided May 24, 1990
  In Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, Congress described a "wire communication" essentially as an "aural transfer ... between the point of origin and the point of reception...." 18 U.S.C. § 2510(1). An "aural transfer," in turn, is defined as "a transfer containing the human voice at any point between and including the point of origin and the point of reception." Id. Sec. 2510(18). Defendant Borch's comments, whether inculpatory or not, clearly "contain the human voice." See id. What is not clear, however, is whether the case at bar falls within the requirement of a "transfer ... between the point of origin and the point of reception." Id. Sec. 2510(1); see also id. Sec. 2510(18).
  United States v. Borch, 695 F. Supp. 898, 900 (E.D. Mich. 1988) (footnote omitted). The district judge answered the "transfer" question in the negative and concluded that "the non-telephonic statements of Defendant Borch ... are not 'wire communications' within the statutory framework underlying the Court's authorization order." Id. at 901-02. The court then went on to conclude that suppression was required due to the fact that the "interception was not made in conformity with the order of authorization or approval." 18 U.S.C. § 2518(10) (a) (iii). The district judge also concluded that suppression was mandated by our earlier holding in United States v. George, 465 F.2d 772 (6th Cir. 1972) (" [W]iretap evidence secured without regard to the limitation set forth in the authorization order is inadmissible.").
  The plain view doctrine, on the other hand, is designed to deal with "inadvertence." Indeed, an inadvertent discovery is the cornerstone of the entire doctrine. In Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 reh'g denied, 404 U.S. 874, 92 S. Ct. 26, 30 L. Ed. 2d 120 (1971), the Supreme Court laid down the guiding principles for the application of the plain view doctrine. The Court in the later case of Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983), summarized these principles:
  Id. at 737, 103 S. Ct. at 1540-41 (citations omitted) (quoting Coolidge, 403 U.S. at 465-70, 91 S. Ct. at 2037-40).
  Baranek lays claim (in a constitutional sense only) to being an "innocent" victim and not the subject of the surveillance. This is only partially true, since he is no more "innocent" than anyone who would have called Borch and been picked up on the tape. Additionally, there is no principled reason for distinguishing this situation from the many other scenarios that can be envisioned under the plain view doctrine. If, for example, a search warrant seeking stolen proceeds was being executed at the home of a friend of a suspected bank robber, and the officers found the homeowner in possession of unrelated contraband, the plain view doctrine would apply. Certainly this hypothetical homeowner has a better claim to being a victim of circumstances than does the defendant here. Of course, neither has any legitimate claim to being a victim at all. As the Court stated in Coolidge, "As against the minor peril to Fourth Amendment protections, there is a major gain in effective law enforcement." 403 U.S. at 467, 91 S. Ct. at 2039.
  Scott v. United States, 436 U.S. 128, 139, 98 S. Ct. 1717, 1724, 56 L. Ed. 2d 168 reh'g denied, 438 U.S. 908, 98 S. Ct. 3127, 57 L. Ed. 2d 1150 (1978) (footnote omitted). Where, 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. We note in that regard that government agents are charged with no wrongdoing and that to suppress here would have no impact on the future conduct of law enforcement officials. In the usual fourth amendment calculus, these are factors that counsel against the necessity of suppression.
  The majority takes an unprecedented leap by extending the plain view exception to include plain hearing under Title III. The majority can cite to no authority for such an extension. Moreover, the majority argues that the instant case fits within the Coolidge rationale because there was a properly issued authorization which clearly makes the initial intrusion lawful, and because the agents "inadvertently" overheard Baranek talking to his mother, and inadvertence is at the heart of the plain view exception. In United States v. Couser, 732 F.2d 1207, 1208-10 (4th Cir. 1984), the Fourth Circuit held that suppression was not required for the interception by Government agents of comments made by the defendant to persons in the background while he was conversing on the telephone. The court impliedly recognized a diminished privacy interest because all of the background conversations intercepted were statements made by an individual with a telephone receiver at his ear. Id. at 1209. The court characterized these interceptions as arguably "technical" violations of the authorization order and refused to suppress. However, the Couser Court did not rely on the plain hearing analogy adopted by the majority today, stating: