U.S. v. Smith , 978 F.3d 171 ( 1992 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 91-5077
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID LEE SMITH,
Defendant-Appellant.
______________________
Appeal from the United States District Court
for the Eastern District of Texas
______________________
(November 12, 1992)
Before POLITZ, Chief Judge, and JOHNSON and JOLLY, Circuit
Judges.
JOHNSON, Circuit Judge:
David Lee Smith was convicted by a jury on five counts
arising out of his drug trafficking activities. Smith raises two
issues on appeal. First, he contends that all of the evidence
against him was discovered as a direct result of the interception
of his conversations over a cordless telephone. Smith argues
that the interception of his conversations violated both Title
III of the Omnibus Crime and Control and Safe Streets Act of 1968
(Title III), 18 U.S.C. §§ 2510-2521, and the Fourth Amendment.
Second, Smith argues that the evidence was insufficient to
sustain his conviction on the charge that he used and carried a
firearm during and in relation to a drug trafficking crime. This
Court disagrees with all of Smith's arguments and affirms his
conviction on all counts.
I. FACTS AND PROCEDURAL HISTORY
David Lee Smith and Michael Varing were next-door neighbors.
Varing had reason to believe that Smith was involved in some
recent break-ins at Varing's house. Varing had witnessed Smith
using a cordless telephone, and one of Varing's co-workers
suggested that Varing eavesdrop on Smith's calls using a Bearcat
scanner.1 Varing did not overhear anything connecting Smith to
the recent burglaries, instead he discovered that his neighbor
was a drug dealer.
Varing contacted a friend in the Port Arthur police
department and told him that Smith was trafficking in cocaine.
Varing was "instructed" by the Port Arthur police to tape record
Smith's calls, and the police provided Varing with some blank
cassette tapes. On one occasion, members of the Port Arthur
police department were present and assisted in intercepting and
recording Smith's phone calls. The intercepted calls and the
tape recordings made by Varing eventually led to the arrest of
Smith and four other defendants on drug-trafficking charges.
Immediately after his arrest, Smith signed a consent form
authorizing officers to search his residence. The search
1
A Bearcat scanner is a type of radio receiver which
allows the user to monitor a number of radio frequencies. The
scanner sequentially monitors all programmed frequencies. When a
conversation on one of these frequencies is picked up, the
scanner locks in on that frequency to allow the user to listen
in. Bearcat scanners, along with similar scanners made by
competitors, are commercially available at most radio and
electronics stores.
2
uncovered crack cocaine, drug paraphernalia, customer lists, and
a loaded .38 calibre revolver.
Smith was convicted of one count of conspiracy to distribute
cocaine, one count of using or carrying a firearm during or in
relation to a drug trafficking crime, and three counts of using a
telephone to cause or facilitate a drug felony. Smith appeals
his conviction on all counts by raising two arguments. First,
Smith argues that the interception of his cordless telephone
conversations violated both Title III and the Fourth Amendment.
Therefore, Smith contends that all evidence discovered as a
result of these intercepted conversations should have been
excluded by the trial court. Second, Smith argues that the
evidence was insufficient to sustain his conviction on the
firearms charge. Because Smith's second argument can be disposed
of so easily, we will examine these issues in reverse order.
II. DISCUSSION
A. The Firearms Charge
Smith contends that the evidence was insufficient to sustain
his conviction on the charge that he used and carried a firearm
during and in relation to a drug trafficking crime. When
evaluating the sufficiency of evidence on appeal, this Court
considers the evidence in the light most favorable to the
verdict. Glasser v. United States, 315 U.S. 60, 80 (1942). The
standard is whether, given the evidence presented at trial, any
rational trier of fact could have found the defendant guilty
3
beyond a reasonable doubt. United States v. Ivy, 929 F.2d 147(5th Cir. 1991), cert. denied, 112 S.Ct. 234 (1991).
The jury found Smith was guilty of violating 18 U.S.C.
§ 924(c)(1). This code section provides in pertinent part that
[w]hoever, during and in relation to any crime of violence
or drug trafficking crime . . . , uses or carries a firearm,
shall, in addition to the punishment provided for such crime
of violence or drug trafficking crime, be sentenced to
imprisonment for five years . . . .
Smith argues that there was no evidence that he ever used or
carried the handgun discovered at his residence. Such proof,
however, is not required by § 924(c)(1). This Court has held
that possession of a gun is sufficient to satisfy the statute's
"use" requirement if possession is an integral part of the
felony. United States v. Robinson, 857 F.2d 1006, 1010 (5th Cir.
1988). In Robinson, where several loaded guns were found in the
defendant's residence along with money, drugs, and drug
paraphernalia, this Court held that there was sufficient evidence
for the jury to conclude that the guns were an integral part of
the drug trafficking because they safeguarded the defendant's
operation. Id. Smith's case is indistinguishable. Just as in
Robinson, the police search of Smith's residence discovered crack
cocaine, a large amount of cash, and various drug paraphernalia,
in addition to the loaded handgun.
From these facts, a jury could have reasonably concluded
that the gun was used to safeguard and facilitate Smith's drug
4
transactions. Thus, the evidence was sufficient to sustain
Smith's conviction on the firearms charge.
B. Smith's Cordless Telephone Conversations
Finding no error in Smith's firearms conviction, we now turn
to the more difficult question: whether all of the evidence
against him must be excluded because it was a direct result of
the warrantless interception of Smith's conversations over a
cordless telephone.
1. Title III
Smith first argues that, under Title III, his conversations
over the cordless phone were inadmissible as evidence and that,
as such, the trial judge should have suppressed the tapes and all
of the evidence gained by using the tapes. The argument that
Title III applies to cordless phone communications has been
uniformly rejected by every court that has considered it. See,
e.g., Tyler v. Berodt, 877 F.2d 705 (8th Cir. 1989); State v.
Howard, 679 P.2d 197 (Kan. 1984); State v. Delaurier, 488 A.2d
688 (R.I. 1985); State v. Smith, 438 N.W.2d 571 (Wis. 1989).
This Court sees no reason to buck that trend.
Title III essentially prohibits the nonconsensual
interception of "wire," "oral," and "electronic" communication
without prior judicial approval. See 18 U.S.C. § 2516-2518. The
statute prohibits an individual from willfully intercepting or
attempting to intercept wire, oral, or electronic communications
5
and from willfully disclosing or using the contents of such
communications obtained in violation of Title III. 18 U.S.C. §
2511(1). Violators are subject to criminal prosecution and may
even be liable for monetary damages to the party whose
communications were intercepted. 18 U.S.C. §§ 2511(1)(b), 2520.
More important for our purposes, Title III includes an
exclusionary rule; illegally intercepted communications may not
be introduced as evidence in any trial or hearing. 18 U.S.C. §
2515. Of course, this exclusionary rule only applies to
communication that is "wire,"2 "oral,"3 or "electronic"4 as
defined in the statute. Although Title III expressly excludes
cordless telephone transmissions from the definitions of "wire"
2
According to Title III, the term "wire communication" is
defined as
any aural transfer made in whole or in part through the use
of facilities for the transmission of communications by the
aid of wire, cable, or other like connection between the
point of origin and the point of reception . . . furnished
or operated by any person engaged as a common carrier in
providing or operating such facilities for the transmission
of interstate or foreign communications . . . , but such
term does not include the radio portion of a cordless
telephone communication that is transmitted between the
cordless telephone handset and the base unit[.]
18 U.S.C. § 2510(1).
3
The term "oral communication" is defined as "any oral
communication uttered by a person exhibiting an expectation that
such communication is not subject to interception under
circumstances justifying such expectation." 18 U.S.C. § 2510(2).
4
The term "electronic communication" is defined as "any
transfer of signs, signals, writing, images, sounds, data, or
intelligence of any nature transmitted in whole or in part by
wire, radio, electromagnetic, photoelectronic or photooptical
system." The term "does not include . . . the radio portion of a
cordless telephone communication that is transmitted between the
cordless telephone handset and the base unit." 18 U.S.C. §
2510(12).
6
and "electronic" communication, Smith argues that his
conversations are nonetheless entitled to Title III protection
because they fit within the definition of "oral communications."
Such an interpretation is out of step with both the plain
language of Title III and with its legislative history.
By its own terms, Title III limits the definition of oral
communication to "any oral communication uttered by a person."
18 U.S.C. § 2510(2). In this case, it was not Smith's actual
utterances that were overheard and recorded by the Varings; it
was a radio signal produced by Smith's cordless phone that was
intercepted, and it was a reconstruction5 of the conversation
produced by the Bearcat scanner that was tape recorded. Thus, by
the plain terms of the statute, Smith's cordless telephone
conversations do not fit within the terms of "oral
communication."
Lest one think this interpretation is too restrictive, we
note that it is fully supported by the legislative history of the
1986 amendments to Title III.6 The Senate Report on the 1986
amendments explained that "[i]n essence, an oral communication is
one carried by sound waves, not by an electronic medium." S.
5
The Bearcat scanner did not actually intercept the sound
of Smith's voice. Instead, the cordless phone reduced the sound
of Smith's voice to radio waves. These radio waves were picked
up by the scanner. The scanner then reconstructed the sound
waves of the conversation.
6
Title III was amended by the Electronic Communications
Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848. Among
other things, this Act amended the definitions of "wire" and
"oral" communications and extended Title III protection to
"electronic communications."
7
REP. NO. 541, 99th Cong., 2d Sess. 13 (1986), reprinted in 1986
U.S.C.C.A.N. 3555, 3567 (emphasis added). The communication
that Varing intercepted was carried by radio waves, not by sound
waves. It is also important to note that the 1986 amendments
expressly excluded cordless telephone conversations from the
definitions of "wire" and "electronic" communications because
Congress felt that it was "inappropriate to make the interception
of such a communication a criminal offense" since some types of
cordless communications can be so easily intercepted. Id. at 12,
reprinted in 1986 U.S.C.C.A.N. 3555, 3566. It would have been
pointless to amend Title III to exclude cordless communications
from the definitions of "wire communications" and "electronic
communications" if such communications are nonetheless covered by
the term "oral communications."7 Although it might be argued
that this would not be the first time Congress has engaged in
pointless activity, in this case at least, such an interpretation
was clearly not Congress's intent.
2. Fourth Amendment
7
Smith argued before the trial court that if Congress
really intended to exclude cordless telephone communications from
the definition of oral communications they could have done so
expressly--as they did for wire and electronic communications.
Although he does not press this argument before this Court, we
note that his argument ignores the fact that every judicial
decision dealing with the issue under the pre-1986 version of
Title III had concluded that cordless telephone communications
were already excluded from the definition of oral communication.
See, e.g., State v. Howard, 679 P.2d 197 (Kan. 1984); State v.
Delaurier, 488 A.2d 688 (R.I. 1985). Since Congress left the
definition of oral communication unchanged, it can be assumed
that they approved of those earlier judicial interpretations.
8
The conclusion that Smith's cordless phone communications
were not protected by Title III does not end our inquiry,
however. Even if Congress has not chosen to extend statutory
protection to cordless phone communications, we must still
determine whether the Fourth Amendment offers Smith any
protection.
The proponent of a motion to suppress has the burden of
proving, by a preponderance of evidence, that the evidence in
question was obtained in violation of his Fourth Amendment
rights. Rakas v. Illinois, 439 U.S. 128, 131 n.1, 133-34 (1978);
United States v. Castaneda, 951 F.2d 44, 47 (5th Cir. 1992).
This Court reviews the district court's determination of
underlying facts for clear error. Questions of law, however, are
reviewed de novo. United States v. Coleman, 969 F.2d 126, 129
(5th Cir. 1992); Castaneda, 951 F.2d at 47. The question of
whether an expectation of privacy is reasonable under the
circumstances is a question of law. Schowengerdt v. United
States, 944 F.2d 483, 488 (9th Cir. 1991); United States v.
Jefferson, 925 F.2d 1242, 1248-49 (10th Cir.), cert. denied, 112
S.Ct. 238 (1991).
The legal standard that Smith must satisfy in order to show
a Fourth Amendment violation is well established. First, he must
show that a government activity intruded upon a reasonable
expectation of privacy in such a significant way that the
activity can be called a "search." Second, if a search has in
fact occurred, Smith must show that the government intrusion was
9
unreasonable given the particular facts of the case. United
States v. York, 895 F.2d 1026, 1028 (5th Cir. 1990). In this
particular case, the key inquiry is whether the interception of
Smith's phone calls constituted a search within the meaning of
the Fourth Amendment.8
The definition of the term "search" has always been the
source of some difficulty in Fourth Amendment jurisprudence. See
1 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT
301 (1987). In general terms, it has been said that a search
occurs when the government infringes an expectation of privacy
that society is prepared to consider reasonable. United States
v. Jacobsen, 466 U.S. 109, 113 (1984). Smith argues that the
interception of his cordless phone conversations was a search
because he did not know how the cordless phone worked or that his
conversations would not be private. However, a subjective
expectation of privacy does not, by itself, give rise to Fourth
Amendment protection. The expectation of privacy must be one
that society is prepared to recognize as reasonable.
While it is true that the right to privacy in a personal
conversation is generally a reasonable expectation, the actions
8
Since the interception of Smith's communications took
place without a warrant and none of the exigent circumstances
justifying warrantless search were present, Smith would have
little or no trouble satisfying the unreasonable search
requirement. See Minnesota v. Olson, 495 U.S. 91, 99-100 (1990);
Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984); United States v.
Capote-Capote, 946 F.2d 1100, 1102 (5th Cir. 1991). Thus, this
case rises or falls on the issue of whether the interception of
Smith's cordless phone calls was a search for Fourth Amendment
purposes.
10
of the parties to the conversation may reduce this expectation to
the point that it is no longer "reasonable." See, e.g., United
States v. Burns, 624 F.2d 95 (10th Cir.), cert. denied, 449 U.S.
954 (1980) (holding that there was no reasonable expectation of
privacy for a loud conversation in a hotel room that could be
heard in adjoining rooms). "What a person knowingly exposes to
the public, even in his own home or office, is not a subject of
Fourth Amendment protection." Katz v. United States, 389 U.S.
347, 351 (1967).
The Supreme Court has noted that what is really involved in
Fourth Amendment analysis is our "societal understanding" about
what deserves "protection from government invasion." Oliver v.
United States, 466 U.S. 170, 178 (1984). In any consideration of
the "societal understanding" about the privacy expectations of
cordless phone users, it is perhaps instructive to note the
important role that all forms of telecommunication, including
various cordless systems, play in today's society. As early as
1967, the Supreme Court recognized the "vital role" that the
telephone plays in modern communication. Katz, 389 U.S. at 352.
No one would dispute that the importance of telecommunications
today has outstripped anything imagined twenty five years ago.
In recent years, one of the fastest growing areas in the field of
telecommunications has been "wireless" technology. See Andrew
Kupfer, Phones That Will Work Anywhere, FORTUNE, Aug. 24, 1992, at
100. Cordless phones, in particular, are threatening to outstrip
sales of traditional land line telephones. Today, nearly half of
11
the 95 million U.S. households use cordless telephones, and more
than 16 million new cordless phones are expected to be sold this
year. Anthony Ramirez, More Range, Less Static in New Cordless
Phones, N.Y. TIMES, Sept. 12, 1992, § 1, at 11. If, as some
experts predict, we are moving inexorably toward a completely
cordless telephone system, the decision as to whether cordless
telephone conversations are protected by the Fourth Amendment may
ultimately determine whether any telephone conversation is
protected by the Fourth Amendment.
With this sobering thought in mind, we now turn to the
application of established Fourth Amendment principles to the
subject of cordless telephones. From a Fourth Amendment
standpoint, the problem with cordless phones is figuring out how
to characterize them. Are they more like traditional telephones
or more like radio transmitters? This difference is important
because the Fourth Amendment clearly protects communications
carried by land-based telephone lines. See Katz v. United
States, 389 U.S. 347 (1967). On the other hand, pure radio
communications are afforded no such protection because
"[b]roadcasting communications into the air by radio waves is
more analogous to carrying on an oral communication in a loud
voice or with a megaphone than it is to the privacy afforded by a
wire." United States v. Hall, 488 F.2d 193, 196 (9th Cir. 1973);
see Goodall's Charter Bus Serv., Inc. v. San Diego Unified Sch.
Dist., 178 Cal. Rptr. 21 (1981).
12
Cordless phones are difficult to characterize because they
do not fit neatly into either category. In one sense, the
cordless telephone is just what the name implies, a telephone.
It looks and sounds like a normal land line telephone. When you
use a cordless phone, you dial a telephone number and talk to the
party on the other end of the line. In actual operation,
however, the cordless phone actually uses a radio signal. The
typical cordless phone consists of a base unit, attached to the
land-based telephone line, and a mobile unit which transmits and
receives the radio signals that carry the actual conversation to
and from the base unit. See generally Alan Gadlin, Note, Title
III Protection for Wireless Telephones, 1985 U. ILL. L. REV. 143
(1985); Kelley K. Hwang, Note, The Admissibility of Evidence
Obtained by Eavesdropping on Cordless Telephone Conversations, 86
COLUM. L. REV. 323 (1986).
One of the first cases to deal specifically with the
question of whether a user of a cordless phone has a reasonable
expectation of privacy was State v. Howard, 679 P.2d 197 (Kan.
1984). In Howard, as in most of the cases dealing with the
interception of cordless phone communications, the precise issue
before the court was whether the interception of cordless phone
conversations fell under Title III. See also Tyler v. Berodt,
877 F.2d 705 (8th Cir. 1989); State v. Delaurier, 488 A.2d 688(R.I. 1985); State v. Smith, 438 N.W.2d 571 (Wis. 1989). The key
inquiry in each of these cases was whether cordless phone
conversations had a reasonable expectation of privacy so as to
13
fit within the statutory definition of "oral communications."9
Although we have concluded that both the plain text of Title III
and the legislative history of the 1986 amendments show that
Congress never intended to include cordless phone conversations
within the definition of "oral communication," the analysis of
the reasonableness found in the pre-amendment cases dealing with
Title III is virtually identical to the appropriate inquiry under
the Fourth Amendment.
In Howard, a neighbor overheard the defendant's cordless
telephone conversation on a standard AM/FM radio. The
conversations indicated that Howard was involved in drug
trafficking so the neighbor recorded several conversations and
provided them to the police. Based primarily upon the tape
recorded conversations, police obtained a search warrant for
Howard's residence where they discovered "certain narcotic
drugs." Howard, 679 P.2d at 199.
9
As discussed earlier, the legislative history for the
1986 amendments makes it clear that the term "oral
communications" does not include cordless telephone
conversations. Lacking this sort of illuminating legislative
history, cases dealing with the pre-1986 version of Title III all
focused on the "justified expectation of privacy" requirement
found in the definition of oral communication. Because this
requirement was drawn from the "reasonable expectation of
privacy" developed for Fourth Amendment analysis, the test for a
Title III claim and a constitutional claim were basically the
same. See Tyler, 877 F.2d at 706. Now that Congress has made it
clear that "oral communication" does not include cordless
telephone conversations, our analysis must proceed differently.
Whether the user of a cordless telephone has a reasonable
expectation of privacy is now only relevant for Fourth Amendment
purposes.
14
At a hearing on Howard's motion to suppress, an employee of
the manufacturer of Howard's cordless phone testified "as to the
nature and operational dynamics" of the phone. Id. The witness
testified that, because the cordless phone utilized a commercial
radio frequency to communicate with the base unit, any standard
FM radio could pick up conversations from the phone. The phone
also had a range of up to 100 feet, depending on conditions.
Further, this cordless phone, as well as other cordless phones in
use at the time had a preset frequency. Any other cordless phone
set to the same frequency could also pick up the same
conversations. The only way to change the frequency of the phone
was to return it to the factory for modification. Id.After hearing this testimony, the Howard court held that the
defendant could have had no reasonable expectation of privacy in
his cordless phone communications because they could be heard by
anyone listening on an ordinary radio receiver. As a result, the
communications could not be considered "oral communications"
under the pre-1986 version of Title III. See also Delaurier, 488
A.2d at 694 (holding that there could be no reasonable
expectation of privacy for conversations "put on the air
voluntarily, and accessible to anyone possessing an ordinary AM
radio"); Smith, 438 N.W.2d at 573 (holding that user could have
no reasonable expectation of privacy for conversations over a
cordless phone where facts showed that phone had a range of over
700 feet and "was subject to ready interception by standard radio
scanners, radio receivers, or other cordless telephones").
15
The essential holding of Howard--and of each of the other
cases to consider the issue--was that, based upon the particular
characteristics of the cordless phone in question, there could
have been no reasonable expectation of privacy in the cordless
phone transmissions due to the ease with which they could be
monitored. In other words, although the individual communication
at issue would normally be subject to Fourth Amendment
protection, the defendants had "knowingly exposed" the
communication to the public by using a technology that could be
so easily intercepted. Nonetheless, these cases should not be
read to stand for the proposition that a communication loses
Fourth Amendment protection simply because it is not transmitted
by wire. There is nothing magical about a telephone line. The
significant difference between land line telephone conversations
and conversations carried out over early versions of the cordless
phone was the ease with which cordless phone conversations could
be intercepted. It was so easy to overhear early cordless phone
conversations that a user could never have a reasonable
expectation of privacy.
While we completely agree with these earlier decisions, it
is important to note that since those cases were decided cordless
technology has continued to evolve. Today's cordless phones are
very different from the models at issue in Howard and Delaurier.
The effective range of cordless phones varies greatly from model
to model; many are limited to a range of about sixty feet, barely
beyond the average house or yard. Obviously it is more
16
reasonable to expect privacy from a broadcast that cannot be
heard outside your own property than it is to expect privacy for
a broadcast that covers a whole neighborhood. Cordless phones
are also no longer "pre-set" to one frequency. Instead, most
cordless phones sold today can monitor all available frequencies
and automatically select one that is unused. This greatly
reduces the chance that a cordless phone will pick up
conversations from other cordless phones. Today's cordless
phones broadcast on radio frequencies not utilized by commercial
radio so that conventional radios can no longer pick up cordless
phone communication. Although radio scanners--like the one used
by Mr. Varing--can still monitor most cordless phones, only a
small percentage of people own such scanners. Surely the
reasonableness of an expectation of privacy becomes greater when
the conversation can only be intercepted using specialized
equipment not possessed by the average citizen. Finally,
cordless phones now appearing on the market actually scramble the
radio signal so that even radio scanners cannot intercept the
communication.
Courts should bear in mind that the issue is not whether it
is conceivable that someone could eavesdrop on a conversation but
whether it is reasonable to expect privacy. See Florida v.
Riley, 488 U.S. 445, 453-54 (1989) (O'Connor, J., concurring).
No matter how technologically advanced cordless communication
becomes, some people will always find a way to eavesdrop on their
17
neighbors.10 However, "[t]he fact that [Listening] Toms abound
does not license the government to follow suit." United States
v. Kim, 415 F. Supp. 1252, 1256 (D. Haw. 1976). Although we
express no opinion as to what features or circumstances would be
necessary to give rise to a reasonable expectation of privacy, it
should be obvious that as technological advances make cordless
communications more private at some point such communication will
be entitled to Fourth Amendment protection. Given this
conclusion, it should be equally obvious that it is not enough
for a trial court to conclude that interception of a conversation
does not implicate Fourth Amendment concerns simply because it is
carried by a "cordless" phone. Application of the Fourth
Amendment in a given case will depend largely upon the specific
technology used, and a trial court must be prepared to consider
that technology in a hearing on a motion to suppress.
This is not a novel announcement. Any determination of the
reasonableness of an individual's expectation of privacy is
necessarily fact intensive. It is often said that "occupants who
leave window curtains or blinds open expose themselves to the
public's scrutiny of activities within that part of the house
that can be seen from outside the premises." United States v.
10
The same holds true for land-based telephone lines. The
equipment needed to tap a regular telephone line can be purchased
for less than $ 25 at Radio Shack (considerably less that the
cost of a Bearcat scanner). Yet if Congress for some reason
removed land line telephones from the reach of Title III, this
would not mean that there would be no Fourth Amendment protection
for telephones. The fact that some individuals eavesdrop on
regular telephone conversations does not mean that no one has a
reasonable expectation of privacy for ordinary phone calls.
18
York, 895 F.2d 1026, 1029 (5th Cir. 1990). Yet this does not
mean that the Fourth Amendment never applies when the curtains
are open.
In United States v. Kim, 415 F. Supp. 1252 (D. Haw. 1976),
FBI agents had used an 800 millimeter telescope to observe
activities inside Kim's high-rise apartment from a quarter of a
mile away. There were no buildings in the line of sight located
significantly closer. The district court categorically rejected
the government's argument that because Kim left his curtains open
his activities were in plain view. Id. at 1256. In spite of the
fact that the curtains were open, the circumstances clearly
established that Kim nonetheless had a reasonable expectation of
privacy in his home. Accord United States v. Taborda, 635 F.2d
131, 138 (2d Cir. 1980); Wheeler v. State, 659 S.W.2d 381, 389-90
(Tex. Crim. App. 1982); see also National Treasury Employees
Union v. Von Raab, 816 F.2d 170, 175 (5th Cir. 1987) ("An
individual . . . may open the curtains of his home to the view of
unenhanced vision without consenting to the view of a
telescope.").
Likewise, in spite of the fact that a defendant uses a
cordless phone, the circumstances may show that he also has a
reasonable expectation of privacy. When faced with a motion to
suppress intercepted cordless phone communications, a trial court
must do more than simply conclude that a defendant had no
expectation of privacy because he used a cordless phone;
instead, the trial court must be prepared to consider the
19
reasonableness of the privacy expectation in light of all the
particular circumstances and the particular phone at issue.
Granted, it would be easier to apply a general rule that it
either is or is not reasonable to expect privacy for cordless
telephone communications. The creation of such a general rule,
however, is beyond the proper role of the judiciary. "Courts are
as a general matter in the business of applying settled
principles and precedents of law to the disputes that come to the
bar." James B. Beam Distilling Co. v. Georgia, 111 S.Ct. 2439,
2442 (1991). Having said that, we now turn to an application of
the law to the specific facts and circumstances present in this
case.
Smith argued before the trial court that the interception of
his cordless telephone conversations violated his Fourth
Amendment rights. However, he introduced no evidence that could
support this argument. His arguments before the trial court, and
the bulk of his arguments before this Court, all revolved around
the fact that Smith did not know that his conversations would not
be private. Yet, subjective expectations of privacy are not
enough to give rise to Fourth Amendment protection. The real
question is whether Smith's subjective expectation of privacy is
one that society is prepared to recognize as reasonable. As
discussed earlier, the reasonableness of any expectation of
privacy for a cordless phone conversation will depend, in large
part, upon the specific telephone at issue. As the proponent of
the motion to suppress, the burden was on Smith to show that the
20
evidence in this case was obtained in violation of his Fourth
Amendment rights. Yet Smith introduced absolutely no evidence--
such as the phone's frequency or range--that would tend to show
that his subjective expectation of privacy was reasonable. Our
discussion in this case has gone into great detail because it
appears from the record that the trial court incorrectly assumed
that there could never be a reasonable expectation of privacy for
a cordless phone communication. Even under a correct application
of the law, however, Smith failed to carry his burden of showing
that his Fourth Amendment rights were violated. Smith's motion
to suppress was properly denied.
III. CONCLUSION
For the reasons stated, we hold that the evidence was
sufficient to sustain Smith's conviction on the charge that he
used and carried a firearm during and in relation to a drug
trafficking crime. As to Smith's objections to the evidence
obtained as a result of the interception of Smith's cordless
telephone conversations, we first hold that Title III does not
apply to intercepted cordless phone conversations. Also, we
conclude that Smith failed to carry his burden of showing that
the evidence against him was obtained in violation of his Fourth
Amendment rights. Accordingly, the judgment of the district
court must be AFFIRMED.
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