Cross v. State , 128 Ga. App. 837 ( 1973 )

Hall, Presiding Judge.

The prohibitions found in Code Ann. § 26-3001 on "Unlawful Eavesdropping and. Surveillance” are inapposite here because they logically relate to one who is not a party to the conversation itself. One does not "intercept” or "overhear” a conversation that is made directly to him. He is not an eavesdropper nor does he have the conversation under "surveillance.” See "Eavesdropping,” Black’s Law Dictionary and Pavesich v. New England Life Ins. Co., 122 Ga. 190, 198 (50 SE 68). Anyone who makes a statement to another knows that the person to whom it is made may repeat it to others who may use it against him. The mere fact that the person to whom the statement was directed made a recording without the knowledge of the person recorded does not vitiate its evidentiary value. See 97 ALR2d 1283, 1302, 1305, §§ 10, 12; 29 AmJur2d 491, Evidence, § 435.

This principle is well stated in a recent decision of the United States Supreme Court which has similar facts. United States v. White, 401 U. S. 745 (91 SC 1122, 28 LE2d 453). "Hoffa v. United States, 385 U. S. 293, which was left undisturbed by Katz, held that however strongly a defendant may trust an apparent colleague, his expectations in this respect are not protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with the authorities. In these circumstances, 'no interest legitimately protected by the Fourth Amendment is involved,’ for that amendment affords no protection to 'a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.’ Hoffa v. United States, at 302. No warrant to 'search and seize’ is required in such circumstances, ... or when the same agent, unbeknown to the defendant, carries electronic equipment to record the defendant’s words and the evidence so gathered is later offered in evidence. Lopez v. United States, 373 U. S. 427. ... It is thus untenable to consider the activities and reports of the police agent himself, though acting without a warrant, to be a 'reasonable’ investigative effort and lawful under the Fourth Amendment but to view the same agent with a recorder or transmitter as conducting an 'unreasonable’ and unconstitutional search and seizure. Our opinion is currently shared by Congress and the Executive Branch, Title III, Omnibus Crime Control and Safe Streets Act of 1968, 82 Stat. 212, 18 USC §§ 2510 et seq. (1964 Ed. Supp. V), and the American Bar Association Project on Standards for Criminal Justice, Electronic Surveillance, § 4.1 (Approved Draft 1971).” United States v. White, supra, pp. 749, 753.

Therefore, while the federal statute is worded differently, and while the Georgia statute is not under constitutional attack, the same reasoning supports the interpretation of § 26-3001: that it does not apply to one who is a party to the conversation.

The state has relied chiefly upon Code Ann. § 26-3006 which provides: "Nothing in section 26-3001 shall prohibit the interception, recording and divulging of a message . . . [when] the message shall constitute the commission of a crime or is directly in the furtherance of a crime, provided at least one party thereto shall consent.” This section is also applicable, though redundant in view of the above interpretation of § 26-3001. It seems probable that § 26-3006 was intended to cover those situations in which the conversation was between two private parties, one of whom consented to the interception by some third party, most likely a law enforcement agency. This does not mean that if one of the parties to the conversation is a police officer who has consented that the section cannot apply. Defendant contends that the police will always consent to electronic eavesdropping, making the prohibition meaningless. Defendant has overlooked the clear wording which requires the consent of one of the parties to the conversation, not the "consent” of the third party interceptor. The rationale for consent of a party is exactly the same as that stated in United States v. White, supra, and is also true under the federal statute. 18 USCA, § 2511 (2) (c). See also Ansley v. State, 124 Ga. App. 670, 674 (185 SE2d 562), cert. den. 408 U. S. 922, 929.

The trial court did not err in overruling this motion to suppress.

Judgment affirmed.

Clark, J., concurs. Evans, J., concurs specially.