14

Jabara v. Webster, et al.

No. 80-1391

to agreeing with defendants' construction of the exemption in the statute, stating:

By its terms and legislative history the subsection does not bar the maintenance of records describing how a person exercises First Amendment rights if there is a direct nexus to an authorized criminal, civil or administrative law enforcement activity.

(Jabara's brief at 39-40).

We agree with both Jabara and the defendants that the district court's construction of the exemption in the statute, limiting it to investigation of past, present or fuure criminal activity, is too narrow. Moreover, if there is any difference of substance between Jabara's formulation and defendants' formulation of the effect of the exemption, we believe that the defendants' is, in the light of the legislative history, the more reasonable one.

It appears, then, that in granting summary judgment to Jabara on the Privacy Act claim, the district court applied too narrow a test in determining that the FBI's investigative conduct did not come within the statutory exemption. For this reason, we believe that the summary judgment should be vacated and the case remanded to the district court for application of a correct legal standard. In doing so, the district court, of course, is free to reconsider its prior decision not to consider and weigh the effect of the French in camera affidavit.

The judgments of the district court are therefore vacated and the case is remanded for further proceedings not inconsistent with this opinion.

The term "wire communication," as defined in Title III

of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C.A.

S 2510), is construed to apply only to that portion of a radio telephone conversation which is actually transmitted by wire and not broadcast in a manner available to the public.

2.

That portion of a cordless telephone conversation intercepted by an ordinary FM radio does not fall into the category of a "wire communication," but is to be considered as an "oral communication" subject to the rules pertaining to the interception of oral communications prescribed in Title III of the Omnibus Crime Control and Safe Streets Act of 1968.

3.

Owners of a cordless telephone located in a private residence who had been fully advised by the owner's manual as to the nature of the equipment, which involves the transmission and reception of FM radio waves, had no reasonable expectation of privacy. Hence,

police officials could lawfully monitor and tape-record conversations of the owners heard over an ordinary FM radio, and such conversations were admissible in evidence in a criminal action charging the owners with narcotic drug violations.

4.

The utilization of a pen register does not violate the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C.A. § 2510 et seq.).

Appeal from Reno district court; WILLIAM F. LYLE, JR.,

judge. Opinion filed March 24, 1984.

Reversed and remanded.

David E. (Rick) Roberts, assistant county attorney, argued

the cause, and Robert T. Stephan, attorney general, and Timothy J. Chambers, county attorney, were with him on the brief for the appellant.

Herbert R. lless, Jr., of less, Leslic & Brown, of Hutchinson, argued the cause and was on the brief for the appellees..

the informant with a tape recorder and a number of blank tapes, requesting the informant to record any further conversations heard over the radio and to record the time of the conversations. Law enforcement officers then obtained court authorization to install a pen register on defendant's telephone. A pen register is a mechancial device which records only the numbers dialed on a telephone by monitoring the electrical impulses caused by use of the telephone's dial or push buttons, but which do not overhear oral communications or indicate whether calls are actually completed. The records maintained by the informant as to the times of recorded conversations corresponded with the records maintained by the pen register. calls recorded by the informant originated in the home of the defendan The parties stipulated that the recordings made by the confidential informant were not obtained with the consent of either defendant or the consent of other parties to the conversations. The law enforcemen authorities did not obtain an order from a court authorizing them to monitor or record the conversations originating from defendants'

residence.

All

The informant recorded conversations of defendants from

July 13, 1982, until August 21, 1982. Based primarily upon the information received from the tape recordings, a search warrant was obtained to search defendants' residence for the cordless telephone in question as well as items of contraband.

This search warrant

was also based in part upon recordings of the pen register mentioned above and personal observations of the movements of the defendants. Agent Bradley testified that he would not have attempted to obtain a search warrant based solely upon the first tape recordings prepared by the confidential informant which were obtained without the police officers' knowledge or involvement. The search warrant was executed, and the search disclosed a cordless telephone and certain narcotic drugs which were seized by law enforcement personnel within the

defendants' residence.

The opinion of the court was delivered by

PRAGER, J.:

This is a criminal action in which the defendants, Timothy

Ray Howard and Rosemarie Howard, were charged with possession of cocaine (K.S.A. 65-4127a) and conspiracy to sell marijuana (K.S.A. 21-3302 and K.S.A. 1982 Supp. 65-4127b). The State has taken an inter locutory appeal, pursuant to K.S.A. 22-3603, from an order of the district court suppressing certain taped conversations and other evidence obtained by the police authorities following a search of the defendants' house in Hutchinson. The district court held that the interception of defendants' cordless telephone conversations and the tape recording thereof were in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 which may be found at 18 U.S.C.A. § 2510 et seq.

For purposes of this appeal, the facts are undisputed and were found by the trial court to be as follows: A neighbor of defendants, referred to in the record as a confidential informant, was operating his AM/FM radio and, in the process of turning the tuning dial, suddenly began to hear conversations over the radio. He determined that the voices were those of the defendants who were conversing with others through use of a cordless telephone. The radio receiver in question was a standard make and model and had not been modified in any manner to monitor or intercept defendants' conversations. The radio was located at all times within the physical confines of the informant's residence without the knowledge of and without direction from law enforcement officers. The informant tape recorded one or more of these conversations. He then provided information about the conversations to law enforcement officers who directed the information to Floyd Bradley, a Kansas Bureau of Investigation (KBI) agent. The conversations were of interest to the KBI, because they involved narcotic drugs. Bradley provided