United States v. John Merrill Hall, United States of America v. William King Nichols, United States of America v. James Kline Dever

Hall, Nichols and Dever were convicted of possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841 (a)(1) and conspiracy to commit that offense in violation of 21 U.S.C. § 846 . Appellants contend that the electronic surveillance of their radio-telephone conversations which led to their arrests violated the Communications Act of 1934 (particularly, 47 U.S. C. § 605), Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 1 and the Fourth Amendment. Therefore, they assert that the use of the conversations should have been suppressed. The district court was unpersuaded. We reverse.

Hall had radio-telephones installed in two automobiles. In early April, 1971, a Tucson housewife, who listens to her ra *195 dio while doing housework, intercepted the appellants’ conversations on her eight-band, 150-170 megacycle radio. The radio is not unique. The public may purchase similar sets on the open market and can listen to police and fire broadcasts, calls placed over the telephone companies’ mobile telephone network, etc. After eavesdropping for less than a month, she reported what she considered to be suspicious conversations to the Arizona Department…

(dissenting in part):

I respectfully dissent from Part I of the court’s decision. In my view, 47 U. S.C. § 605 requires a reversal of the convictions.

Se'ction 605 provides in pertinent part:

It is clear that prior to the 1968 amendment, the word “person” in § 605 encompassed law enforcement officials. Lee v. Florida, 392 U.S. 378 , 88 S.Ct. 2096 , 20 L.Ed.2d 1166 (1968); Nardone v. United States, 302 U.S. 379 , 58 S.Ct. 275 , 82 L.Ed. 314 (1937). In Lee , the Supreme Court squarely faced the issue:

Section 605 as amended in 1968 likewise provides that “no person” shall divulge any communication covered by the statute to “any person.” The statutory language is clear and unambiguous. Nowhere in the statute is the word “person” restricted, limited, or modified. If the words of the statute are interpreted according to their plain meaning, § 605 clearly applies to law enforcement officers.

The majority fastens on two sentences in the Senate report to the Omnibus Crime Control and Safe Streets Act of 1968 to support its conclusion that § 605 as amended does not apply to law enforcement officials:

The reference to the Sugden case was clearly intended to emphasize the word “normal”…

488 F.2d 193 UNITED STATES of America, Plaintiff-Appellee, v. John Merrill HALL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William King NICHOLS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. James Kline DEVER, Defendant-Appellant. Nos. 72-1841, 72-1842, 72-1737. United States Court of Appeals, Ninth Circuit. Oct. 19, 1973. John J. Flynn (argued), Thomas A. Thinnes, Richard L. Parrish of Flynn, Kimerer, Thinnes & Galbraith, Phoenix, Ariz., for appellant Dever. Benjamin Lazarow, (argued), Tucson, Ariz., for appellants Hall and Nichols. David S. Hoffman, Asst. U. S. Atty., (argued), William C. Smitherman, U. S. Atty., James M. Wilkes, Asst. U. S. Atty., Tucson, Ariz., for plaintiff-appellee. Before WRIGHT and WALLACE, Circuit Judges, and FERGUSON, * District Judge. WALLACE, Circuit Judge: 1 Hall, Nichols and Dever were convicted of possession of marijuana with intent to distribute in violation of 21 U.S.C. Sec. 841 (a)(1) and conspiracy to commit that offense in violation of 21 U.S.C. Sec. 846 . Appellants contend that the electronic surveillance of their radio-telephone conversations which led to their arrests violated the…