1.

2.

No. 55,963

3.

STATE OF KANSAS,

Plaintiff-Appellant,

V.

TIMOTHY RAY HOWARD,

and

ROSEMARIE HOWARD,

Defendants-Appellees.

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. $ 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.

SYLLABUS BY THE COURT

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.

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. Hess, 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. All
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.

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 lutchinson. 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. S 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/IM 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

same or similar frequency utilized by commercial FM radio stations. A standard FM radio would be able to pick up the radio transmissions from both the mobile and base units of the cordless telephone.

The FM signal transmitted from either the base or mobile unit is nondirectional and will reach out in all directions simultaneously.

The FM signal transmitted will penetrate and

pass through almost any material, including a normal concrete or wooden wall. The effective rated range of communication between a mobile and base unit is approximately 50 feet, but this range varies with the physical surroundings in which the particular cordless telephone is situated. The range varies with the physical surroundings, weather conditions, the sensitivity of the receiver, and the power output of the transmitter. The manual states that, although the cordless telephone is designed for a normal range of 50 feet, the range can vary from anywhere between 30 feet to 100 feet depending upon the particular surroundings.

The manual states that "walkie-talkies" can share the same frequencies of the cordless telephone which can produce some inter ference. If two cordless telephones were hooked to separate lines and were physically close enough, calling one telephone would cause the second telephone to ring and both telephones would be privy to the same conversation. The only way to correct this situation would be to return the cordless telephone to its place of manufacture for frequency modifications. The cordless telephone in question is required to pass Federal Communications Commission regulations which are limited to compliance with production specifications and not transmission capabilities. One is not required to have a license to operate either the base or the mobile unit because the power of each unit is less than one watt. Hutchison testified that the hand-held

mobile unit contains a "confidential" button. when that button