Joe Otto's distrust of his younger wife, Brenda Sue, bordered on the obsessive; his anxieties derived mainly from her uncertain relationship with another man, Marvin Elmer Mark. To confirm his suspicions, Joe secretly tape-recorded Brenda's telephone calls from the family residence. These recordings captured a conversation between Brenda and her suspected paramour which added a new and horrifying dimension to Joe's fears; the illicit alliance was a reality, but its object was not merely his wealth and marriage, it was his life itself.
Joe's concerns proved to be well founded. Within 48 hours of the recorded conversation, he was found dead — bludgeoned to death in his own home. Shortly thereafter, the police discovered the secret recording and several other taped conversations. Brenda and Marvin Mark were charged and tried
Prior to trial, both defendants moved to suppress the taped conversations on the grounds that Joe Otto had obtained them in violation of Title III of the Omnibus Crime Control and Safe Street Act of 1968 (18 U.S.C. §§ 2510-2520) (hereafter Title III or the Act) and that their introduction into evidence would therefore violate the exclusionary provision of the Act (18 U.S.C. § 2515). The trial court denied the pretrial motion and subsequently denied a renewed motion to suppress the tapes at the start of trial.
We granted review limited to the issue of the admissibility of the telephone conversations secretly recorded by the victim.
Joe Otto was a 61-year-old electrician with a history of heart disease when, in September of 1986, he married Brenda Sue Delwiche, a 39-year-old divorced woman with two grown children. Brenda was Joe's third wife.
The couple's relationship was troubled from the start. Their courtship of the previous year and brief marriage were marked by jealousy and suspiciousness on Joe's part, and cold-blooded calculation on the part of Brenda. She confided to a friend that she agreed to the marriage only because Joe was sick and probably would not live long; the marriage would provide financial security for herself and her daughters. Indeed, before she would agree to marry Joe, Brenda had apparently demanded a substantial cash payment, which she planned to invest with Marvin Mark.
Mark's involvement with Brenda dated from August 1985, when he became a boarder in her home. He soon became her lover and they were
In early September 1986, Joe gave Brenda a check for $10,000. The check was immediately funneled to Mark, who thereupon spent the money on a new office in Campbell and paid off certain debts. Shortly thereafter, Joe and Brenda were married in Hawaii. Within days of their return, Brenda began to speak of obtaining a divorce. She complained of Joe's possessiveness and jealousy. By the middle of October, she told her daughter that one way or another — by death or divorce — the marriage would end and she might then marry Mark.
About a week after they returned from Hawaii, Brenda learned that Joe was using a telephone answering machine to record her conversations. Indeed, even before they were married, Joe had frequently recorded his telephone conversations with Brenda so that, as he explained to his daughter Jolynn, he could later review and analyze them for contradictions. A friend showed Brenda how to unplug the answering machine from the telephone line. Unbeknownst to Brenda, however, the secret taping continued from a voice-activated recorder which Joe had hidden under Jolynn's bed. The machine recorded every call that came in or out of the house.
On the afternoon of Monday, October 13, 1986, Joe approached his neighbor, Scott Kennedy, a San Jose police officer, and asked him to listen to a particular tape. The tape contained the whispering voices of a man and a woman whom Joe identified as Brenda and Mark. The so-called "whispering tape," which was played for the jury at trial, begins with Brenda asking, "Why?" and a male voice responding, "Everything was wrong." The male then refers to a "party across the street," to "stuff all over the street with the sheets on" which "must have somebody watching," and to an "accident" on the corner. Brenda then explains, "It's the garage sale." The male states, "I tried every possible way," and asks where Brenda is calling from. When she says "home" the male expresses concern but Brenda reassures him, "I learned how to unplug it." Later in the conversation the male states, "I got a better plan." Throughout the call, the male refers to Brenda as "honey" and closes with, "Love you baby."
The various references in the tape place the time of the telephone call at late Saturday night, October 11, when a neighborhood party was occurring;
After he talked to Kennedy on Monday, Joe also played the tape for his daughter Jolynn, who lived with Joe and Brenda and worked the night shift as a psychiatric technician at a state hospital. They tried to understand what the conversation meant. Joe told her that it was made Saturday night after he had gone to bed. Jolynn informed her father that she found the door unlocked on Sunday morning when she returned from work; Joe recalled that he had locked the door before going to bed. Concerned about the call, Jolynn asked her father to keep his gun nearby. Joe took her advice, retrieved his gun from a hiding place in the kitchen and placed it in his jacket pocket.
More telephone conversations were recorded the next day, Tuesday, October 14, although it is unclear whether Joe ever heard them. One involved a call from Brenda to Mark. In it Mark asked whether Jolynn was going to work that night; Brenda assured him that she was. Mark then states that he had "picked up a set of wheels to try out and see what it looks like. Trade cars, whatever." Mark indicated that he would be at the office until 7 p.m. and would be at home until "about 9:30 or so. Any changes, let me know." The conversation ended with each expressing love for the other.
Late that afternoon, Joe and Jolynn left the house for an appointment. Before leaving, Joe handed his daughter an envelope containing his will and asked her to put it in a safe place. The will left Jolynn all of Joe's property
Alarmed, Joe checked the house with his gun but found nothing. Later, Jolynn mentioned to Brenda that she intended to leave work early that evening. Brenda appeared visibly upset by the news. Jolynn left the house at 7:30 p.m. She did not return home early. When she finally did, her father was dead.
Joe's death was discovered early the next morning, Wednesday, when Brenda appeared at the doorstep of the Ottos' neighbor, Scott Kennedy. When Kennedy let her in, she was naked and screaming that "you have to help Joe. I think they have killed him or he's hurt. Somebody has broken in." Brenda's hands were tied behind her back with a terrycloth belt. Kennedy's wife, Kim, untied her bindings and wrapped Brenda in a blanket; she did not observe any blood or marks on Brenda's hands or arms, other than what appeared to be a rug burn on her right forearm. Both Kennedys detected the odor of semen.
Brenda explained that she and Joe had fallen asleep while watching television. She awoke with the feeling of "stuff" on her face and the presence of two people hurting Joe. In recounting this tale, Brenda seemed upset but was not crying. The first police officer on the scene obtained a report from Brenda that two Latino men had broken into the home and possibly killed Joe. In a second statement, also at the Kennedy house, Brenda stated that a large Latino man had come out of nowhere and stood next to Joe. She then heard a loud noise and simultaneously felt something sprayed on her face. She tried to run but the intruder struck her on the side of her face. A second man grabbed her housecoat, ripped off her bra, and knocked her into a wrought iron fixture, following which she passed out. She regained consciousness to find her hands tied behind her back and her ankles bound with pantyhose. She eventually untied her feet and went to the Kennedy house.
The officers who entered the Otto residence found Joe dead on the floor of the family room. The lights and television were off. An afghan partially
Once Kennedy informed the police of his conversation with Joe and the existence of the "whispering tape," the investigation focused on Brenda. A taped interview was conducted, two parts of which were played to the jury. In the first part, Brenda is tearful and describes her marriage as "good," "not a bad relationship." In the second part, the interrogating officer informs Brenda about the whispering tape and asks her whether she had ever discussed killing Joe on the phone. After a long pause, Brenda responds, "No — I don't think so." Pressed further, Brenda denied the existence of such a discussion. She was arrested that morning. A medical examination revealed no injuries to her face and no evidence that she had been struck. Particles like dried flowers were found on her chest, back and pubic area; these were consistent with dried flowers found on the floor of the murder scene.
The investigation next focused on Mark. In a taped statement he acknowledged that he and Brenda had been lovers, but stated that they had not had sex since September. He claimed that his last telephone conversation with Brenda was Sunday or Monday, when they talked about the deposit on the house they had shared. He stated that he was at his office all day Tuesday until 8 p.m., returned home by 8:45, and worked at home until about midnight; he then took his dog out in his pickup for a run, returning about 1 a.m. He saw and heard no one. Confronted with the "whispering" conversation, he conceded that it had occurred but could not recall what it was about.
The crime scene investigator noted a number of anomalies. He found no evidence of forced entry into the house, no drawers pulled open, clothes strewn about, mattresses moved or jewelry missing. The victim still had money on him. An expert in blood splatter analysis noted that it was peculiar that Brenda's pantyhose, robe and bra were found with bloodstains all around them, but none underneath. He also observed that the pattern of blood splatters was inconsistent with Brenda's account of the attack.
Neither Brenda nor Mark testified at trial.
1. Title III — Background
As noted earlier, defendants moved unsuccessfully to suppress the tapes as having been made in violation of Title III. The trial court denied the motion, and the Court of Appeal affirmed the trial court's ruling.
The exceptions to Title III's blanket proscription against electronic wiretapping and surveillance are contained in 18 United States Code section 2511(2). Subdivision (d) of that section provides that it shall not be unlawful for a person to intercept a communication where "such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception...." In other words, the Act prohibits third party nonconsensual intercepts; one party may record a conversation without the knowledge or consent of the other, or may authorize another to do so. However, other than duly authorized law enforcement officers, third parties may not engage in nonconsensual surreptitious wiretapping except under extremely limited circumstances not applicable here. (18 U.S.C. § 2511(2).)
The enumerated exceptions define the only circumstances in which surreptitious electronic surveillance is permissible under the Act.
In addition to imposing a criminal penalty for unauthorized interceptions or disclosure of information obtained through such interceptions (18 U.S.C. § 2511(1)(a)), the Act creates a damage remedy for any person whose wire or oral communications have been unlawfully intercepted, disclosed or used.
As parties to the taped conversations, both defendants here clearly meet the statutory definition of "aggrieved person." Therefore, defendants had standing to move for suppression pursuant to 18 United States Code section 2518(10).
Furthermore, it is well settled that a telephone conversation is a "wire communication" within the meaning of Title III (United States v. Axselle (10th Cir.1979) 604 F.2d 1330, 1334; United States v. Harpel (10th Cir.1974) 493 F.2d 346, 349) and that the tape recording of such conversations constitutes an "intercept" under the Act. (United States v. Turk (5th Cir.1976) 526 F.2d 654; 18 U.S.C. § 2510(4).)
A plain reading of the Act, therefore, leads to the inescapable conclusion that defendants' conversations were unlawfully recorded, and should not have been received in evidence under the strict injunction of Title III. (18 U.S.C. §§ 2515, 2518.)
The Attorney General nevertheless asserts that the conversations were properly admitted under two separate theories: (1) that they were lawfully intercepted under an implied exception to Title III for "interspousal" or "domestic" wiretapping; and (2) that even assuming they were unlawfully obtained, Title III does not compel suppression where the government is merely the innocent recipient, rather than the procurer, of the illegally intercepted communication. We address each of these contentions in turn.
2. Interspousal Wiretapping
The Attorney General's claim runs counter to the plain language of the Act, which states that "any person" who engages in electronic surveillance is liable to punishment or subject to suit "[e]xcept as otherwise specifically
That request cannot be squared with the Supreme Court's pronouncement that, "Except as expressly authorized in Title III, ... all interceptions of wire and oral communications are flatly prohibited." (Gelbard v. United States, supra, 408 U.S. at p. 46 [33 L.Ed.2d at p. 186], italics added.) As the high court has explained, "The purpose of the [Act] ... was effectively to prohibit ... all interceptions of oral and wire communications, except those specifically provided for in the Act. ..." (United States v. Giordano, supra, 416 U.S. at p. 514 [40 L.Ed.2d at p. 353], italics added; see also U.S. v. Underhill, supra, 813 F.2d at p. 107 ["Unless there is a specific section of the statute which excepts a particular interception, all willful interceptions of wire and oral communications are prohibited by the Act."].)
The plain language and the high court's pronouncements notwithstanding, the Attorney General contends that the legislative history of Title III reveals a congressional intent to exempt domestic wiretapping from the Act's comprehensive ban on nonconsensual electronic surveillance.
Even if we look behind the text of the Act, as the government urges, our conclusion remains unaltered. Indeed, contrary to the claims of the Attorney General, the history of Title III reveals an unmistakable congressional intent to prohibit all unauthorized electronic surveillance, including domestic wiretapping.
Congress enacted Title III after extensive legislative hearings had disclosed widespread abuse of electronic surveillance. (See Comment (1977) 27 Buffalo L.Rev. 139, 140, fn. 5.) These abuses were not solely or even primarily occurring in the public sphere, but rather the private domain, particularly in the areas of domestic relations and commercial espionage.
Numerous statements by other witnesses and legislators during the Senate hearings demonstrate that Congress was keenly aware of the problem of interspousal surveillance. (See Comment, supra, 27 Buffalo L.Rev. at pp. 142-143; see also Note, (1978) 12 Val. U.L.Rev. 537, 541-542; Comment (1975) 7 U. Tol. L.Rev. 185, 201-205.) As one federal court has observed: "The legislative history [of Title III] abounds with expressions of congressional consensus on the lack of justification for private electronic surveillance, ..." particularly in the domestic context. (United States v. Jones, supra, 542 F.2d at p. 671, fn. 19.)
The Senate committee report that accompanied Title III explicitly identified the problem which the legislation was designed to address as the increasingly widespread private surveillance into "each man's personal, marital, religious, political, or commercial concerns...." (Sen. Rep. No. 1097, 90th Cong., 2d Sess. 225, reprinted in 1968 U.S. Code Cong. & Admin. News, at pp. 2117, 2154, italics added.) Such abuses, the report
Thus, there can be no doubt that Congress was fully aware of the prevalence of domestic wiretapping, and intended to prohibit the practice by virtue of the Act's comprehensive ban on nonconsensual electronic surveillance.
Another legal commentator has concluded: "Congress intended that [interspousal surveillance] should be entirely prohibited. This sense of Congress is indicated in the debate, the legislative history, the wording of the statute, and in the opinion of the author of Title III." (Comment, supra, 7 U. Tol. L.Rev. 185, 203-204.)
These views are widely shared. (See, e.g., Comment, supra, 27 Buffalo L.Rev. at p. 143 ["It can and ought to be inferred ... that since Congress was aware of the prevalence of wiretapping domestic relations, its failure to exclude this area from the Act's broad prohibitions was deliberate."]; Note, supra, 12 Val. U.L.Rev., at p. 539 ["... Congress did intend to include interspousal electronic surveillance within the scope of Title III...."]; Comment (1972) 11 Ga.L.Rev. 427, 434 ["The language of Title III is not ambiguous, and the legislative history supports a literal interpretation of the statute's broad prohibition against interception of oral or wire communications.... The failure of Congress to include interspousal surveillance among the express exceptions to Title III was therefore intentional."]; but cf. Note (1989) 57 Fordham L.Rev. 1035.)
Pritchard v. Pritchard, supra, 732 F.2d 372, is representative of the extensive case law on the subject. After careful consideration of the text, the legislative history, the relevant decisional law and the commentaries, the federal court concluded: "[W]e find that Title III prohibits all wiretapping activities unless specifically excepted. There is no express exception for instances of willful, unconsented to electronic surveillance between spouses. Nor is there any indication in the statutory language or in the legislative history that Congress intended to imply an exception to facts involving interspousal wiretapping." (Id. at p. 374.)
United States v. Jones, supra, 542 F.2d 661, is equally instructive: "Our review of the legislative history of this section, testimony at congressional hearings, and debates on the floor of Congress, inescapably lead to the conclusion that 18 U.S.C. § 2511(1)(a) establishes a broad prohibition on all private electronic surveillance and that a principal area of congressional concern was electronic surveillance for the purposes of marital litigation." (Id. at p. 669.)
One federal Court of Appeals has concluded that the Act does not prohibit a spouse from intercepting the telephone conversations of the other spouse. In Simpson v. Simpson (5th Cir.1974) 490 F.2d 803, cert. den. (1974) 419 U.S. 897 [42 L.Ed.2d 141, 95 S.Ct. 176], a wife filed a civil damage suit
Simpson's reasoning has been subjected to severe criticism, and its holding has been repudiated by the vast majority of legal commentators and state and federal courts. The leading treatise authors, Professor James G. Carr,
As noted, the great majority of courts have also rejected Simpson v. Simpson, supra, 490 F.2d 803, concluding that its holding is flatly contrary to the history, text and purposes of Title III. (Heggy v. Heggy, supra, 944 F.2d at p. 1540; United States v. Jones, supra, 542 F.2d at pp. 666-673; Pritchard v. Pritchard, supra, 732 F.2d at p. 374; Kempf v. Kempf, supra, 868 F.2d at pp. 971-973; Nations v. Nations, supra, 670 F. Supp. at pp. 1434-1436; Kratz v. Kratz, supra, 477 F. Supp. at pp. 468-475; Turner v. PV Intern. Corp., supra, 765 S.W.2d at p. 470; Ex Parte O'Daniel, supra, 515 So.2d at pp. 1252-1253; Pulawski v. Blais, supra, 506 A.2d at p. 77, fn. 2; Rickenbacker v. Rickenbacker, supra, 226 S.E.2d at p. 352; Heyman v. Heyman, supra, 548 F. Supp. at p. 1047; Gill v. Willer, supra, 482 F. Supp. at p. 778; Stamme v. Stamme, supra, 589 S.W.2d at pp. 52-53; State v. Jock, supra, 404 A.2d at pp. 521-522.)
As all of these authorities have observed, Simpson v. Simpson, supra, 490 F.2d 803, was conspicuously flawed in several key respects. It inexplicably ignored both the clear language of the statute and the abundant legislative history demonstrating that Congress was keenly aware of the use of wiretaps in marital disputes, yet made no exception for their use. The Simpson court also based its decision on the doctrine of interspousal immunity, speculating that Congress did not intend to intrude into an area normally left to the states. The fallacy of this reasoning is also evident. There is no persuasive evidence that Congress intended to defer to the states in this area; on the contrary, the legislative history demonstrates that one of the goals of the Act was precisely to forbid marital wiretapping. Furthermore, as many critics of the decision have observed, state law is far from uniform on the subject of
The Simpson court also relied on Title III's so-called "extension phone" exception. The Act excludes from the definition of prohibited intercept devices "any telephone ... furnished to the subscriber or user by a communications common carrier ... and being used ... in the ordinary course of its business." (18 U.S.C. 2510(5)(a).) In explaining this section, one witness at the congressional hearings stated that the Act was not designed to prohibit the casual use of an extension phone to overhear a conversation of a family member.
3. Private Wiretaps
The government contends, however, that such a literal reading of Title III would be at variance with the congressional intent; according to the Attorney
Again, the government's contention does not withstand scrutiny. Where the intent of Congress is expressed in "reasonably plain terms," a court must ordinarily treat that language as conclusive; no resort to extrinsic aids is necessary or proper. (Griffin v. Oceanic Contractors, Inc. (1982) 458 U.S. 564, 570 [73 L.Ed.2d 973, 980, 102 S.Ct. 3245]; see also U.S. v. Amer. Trucking Ass'ns. (1940) 310 U.S. 534, 542-544 [84 L.Ed. 1345, 1350-1351, 60 S.Ct. 1059] ["There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. Often these words are sufficient in and of themselves to determine the purpose of the legislation. In such cases we have followed their plain meaning."].)
The language of Title III is clear and unambiguous; it provides that no part of the contents of an unlawfully intercepted wire communication may be received in evidence in any proceeding before any state or federal court. (18 U.S.C. §§ 2515, 2518.) The Act draws no distinction between communications unlawfully obtained by the government and those procured unlawfully by private means. Thus, no further analysis is necessary to demonstrate that the taped conversations were inadmissible under Title III.
The government's argument also fails on its own terms, however. The legislative intent underlying Title III, and section 2515 in particular, was definitively expounded by the United States Supreme Court in Gelbard v. United States, supra, 408 U.S. 41. Quoting directly from the Senate committee report that accompanied the bill (Sen. Rep. No. 1097, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S. Code Cong. & Admin. News, at p. 2112), the high court stated that the Act has a "dual purpose[:] (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized." (Gelbard v. United States, supra, 408 U.S. at p. 48 [33 L.Ed.2d at p. 187].)
The Supreme Court characterized the protection of individual privacy as the "overriding congressional concern." (Gelbard v. United States, supra, 408 U.S. at p. 48 [33 L.Ed.2d at p. 187].) That concern extended not only to the initial invasion represented by the illegal wiretap, but to subsequent invasions occasioned by the use and disclosure of the taped conversations at trial. Congress's findings make that concern clear: "[I]ntercepting devices are
To remedy the problem of multiple invasions resulting from subsequent disclosures at trial, Congress extended to the victims of illegal wiretaps, private or otherwise, the full panoply of statutory remedies. Chief among these, of course, is the evidentiary prohibition of section 2515, which the high court has characterized as the primary enforcement mechanism of the Act's strict limitations upon invasions of individual privacy. (Gelbard v. United States, supra, 408 U.S. at pp. 48-50 [33 L.Ed.2d at pp. 187-188].) As the Senate report observed: "`[Section 2515] forms an integral part of the system of limitations designed to protect privacy. Along with the criminal and civil remedies, it should serve to guarantee that the standards of the new chapter will sharply curtail unlawful interception of wire and oral communications.'" (1968 U.S. Code Cong. & Admin. News at p. 2185, quoted in Gelbard v. United States, supra, 408 U.S. at pp. 50-51, fn. 9 [33 L.Ed.2d at pp. 188-189].)
Congress was also concerned about the effect on the integrity of the courts of admitting illegally procured evidence. As the high court has explained, the suppression sanction of section 2515 was designed "not only to protect the privacy of communications, but also to ensure that the courts do not become partners to illegal conduct: the evidentiary prohibition was enacted also `to protect the integrity of court and administrative proceedings.'" (Gelbard v. United States, supra, 408 U.S. at p. 51 [33 L.Ed.2d at pp. 189], quoting from the congressional findings, Pub.L. No. 90-351, supra, § 801, 82 Stat. 211, italics added.) It is wholly immaterial to the accomplishment of these express congressional goals whether the wiretap was perpetrated by private or governmental means.
Contrary to the claims of the Attorney General, therefore, the legislative history of Title III demonstrates that Congress was aware of the problem of private wiretapping and intended to curb its abuse by means of the suppression sanction. Any other conclusion would patently contravene the congressional injunction that "courts ... not become partners to illegal conduct." (Gelbard v. United States, supra, 408 U.S. at p. 51 [33 L.Ed.2d at pp. 189].)
Numerous courts, both state and federal, have so concluded. The leading federal case is U.S. v. Vest (1st Cir.1987) 813 F.2d 477. There, the defendant, a police detective, was indicted for making false statements before a grand jury. He moved to suppress a private recording proving that, contrary to his
A similar conclusion was reached in United States v. Phillips (8th Cir.1976) 540 F.2d 319, cert. den. (1976) 429 U.S. 1000 [50 L.Ed.2d 611, 97 S.Ct. 529]. There, as in Vest, the defendant was accused of perjury based on certain false statements before a grand jury. The critical evidence at trial was a conversation between defendant and two compatriots recorded by a private detective. In resolving the issue of admissibility, the court rejected the government's threshold claim that the Act did not apply where the government was merely the innocent recipient of a privately recorded conversation. As the court stated: "We also reject the government's argument ... that the tape is independently admissible because the government had no part in the decision to record or the actual recording of the conversation.... [T]he fourth and fifth amendments proscribe government action, not private action. We are concerned here with a specific statutory directive that certain conversations which are electronically intercepted by private persons are not admissible in any official proceeding." (Id. at p. 327, fn. 5, italics added.)
Several state courts have also concluded that evidence derived from an unlawful private wiretap is inadmissible in a criminal prosecution. In State v. Dwyer (1978) 120 Ariz. Ct. App. 291 [585 P.2d 900], for example, the court affirmed the granting (by then Superior Court Judge Sandra Day O'Connor) of defendant's motion to suppress certain conversations overheard by a telephone operator which implicated defendant in a conspiracy to commit murder. Over a vigorous concurring opinion which conceded that the result was compelled under Title III but challenged its wisdom and called for a congressional amendment of the Act (id. at pp. 904-906), the Arizona court held that the conversation was unlawfully intercepted and therefore inadmissible under section 2515. (Id. at p. 904.)
Florida is another state with a wiretap statute modeled on the federal Act. (Horn v. State (Fla. Dist. Ct. App. 1974) 298 So.2d 194, 197-198.) Indeed, the Florida exclusionary provision, Florida Statutes section 934.06,
Concluding that the text and meaning of the statute were plain, the Florida court held that the eavesdropping was unlawful and the contents of the illegally overheard conversation were therefore inadmissible. (Horn v. State,
In sum, neither the text, the history, nor the purposes of Title III support the government's claim that Congress intended to exempt unlawful private intercepts from the strictures of section 2515. The text of the Act is synonymous with its purpose; we may question the congressional wisdom in adopting so expansive a rule, but we may not, as the Florida Supreme Court observed, "substitute [our] judgment for that of the Legislature and create an exception which would encompass the instant circumstances." (State v. Walls, supra, 356 So.2d at p. 296.)
In a related argument, the Attorney General urges that section 2515 be construed as coextensive with the Federal Fourth Amendment exclusionary rule.
Again, the argument does not withstand scrutiny. In United States v. Giordano, supra, 416 U.S. 505, the United States Supreme Court emphasized that interpretation of section 2515 "does not turn on the judicially fashioned exclusionary rule aimed at deterring violations of Fourth Amendment rights, but upon the provisions of Title III," and indicated that Congress did not
Furthermore, as several courts have observed, "Congress could not have intended the courts to disregard ... the different policy considerations underlying the two rules." (U.S. v. Vest, supra, 813 F.2d at pp. 481, 483; accord Horn v. State, supra, 298 So.2d at p. 201.)
In sum, the Fourth Amendment requirement of governmental action has no application to the statutory suppression sanction of section 2515.
Finally, the Attorney General argues that the purpose of the statutory exclusionary rule is simply to sanction the perpetrator of the illegal interception, a limited goal which plainly would not be served here. The government relies on a statement in the Senate report to the effect that "the perpetrator must be denied the fruits of his unlawful actions in civil and criminal proceedings." (Sen.Rep. 1097, supra, at p. 69, reprinted in 1968 U.S. Code Cong. & Admin. News at p. 2156.) As discussed above, however, such a narrow reading of the congressional intent does not comport with the Act's text or legislative history. Congress sought to protect individual privacy by banning all surreptitious wiretapping (Gelbard v. United States, supra, 408 U.S. 41); that goal requires suppression of the fruits of an illegal intercept regardless of whether the perpetrator is a party to the litigation or a disinterested third party. Furthermore, it is worth recalling that section 2515
The cases on which the government relies are patently inapposite. All involve either minor infractions of provisions of the Act, or taped conversations that were recorded by a party to the conversation, often the defendant himself. Thus, in United States v. Chavez (1974) 416 U.S. 562 [40 L.Ed.2d 380, 94 S.Ct. 1849], the high court permitted the use of information gathered through the use of a police wiretap despite a technical misstatement in the government's application for the wiretap, observing that violations of the Act do not require suppression if they are not significant within the congressional scheme circumscribing how the government may employ electronic surveillance. (Id. at pp. 574-575 [40 L.Ed.2d at pp. 391-392]; see also United States v. Donovan (1977) 429 U.S. 413, 435-437 [50 L.Ed.2d 652, 672-674, 97 S.Ct. 658].) We do not find, nor does the Attorney General seriously contend, that the surreptitious recordings at issue are analogous to the petty violations in Chavez and Donovan.
The Attorney General's reliance on U.S. v. Underhill, supra, 813 F.2d 105, Traficant v. C.I.R. (6th Cir.1989) 884 F.2d 258, and U.S. v. Nietupski (C.D.Ill. 1990) 731 F.Supp. 881, is also misplaced. In each case, the defendants sought to suppress tape recordings of illegal activities which they or their coconspirators had themselves procured. In each case, the court refused to permit suppression — not because section 2515 was inapplicable to unlawful private interceptions — indeed, the courts assumed that the suppression sanction would otherwise normally apply, but rather because it would contravene the clear congressional purpose of Title III to allow the perpetrator to benefit from his own illegal act. (See U.S. v. Underhill, supra, 813 F.2d at p. 112 ["We think it is clear that Congress did not intend for § 2515 to shield the very people who committed the unlawful interceptions from the consequences of their wrongdoing."].) Thus, these decisions are neither pertinent nor persuasive authority.
In sum, we decline to read into the Act an exception permitting the use of evidence illegally intercepted by a private party. We may question the wisdom of Congress in adopting such a broad-based suppression sanction. We may even urge the Congress to consider an appropriate amendment to the Act which would preclude such a result in future cases. We may not, however, substitute our judgment for that of the legislature. Neither the
The final issue to be resolved is whether the erroneous admission of the taped conversations was so prejudicial as to compel reversal of the judgments of conviction.
A review of the record reveals that the tapes played a critical role in the state's case against defendants. To be sure, the prosecution adduced substantial independent evidence of motive on the part of both defendants, and cast substantial doubt — based on the physical evidence — on Brenda's account of the events surrounding the murder. Nevertheless, it is apparent that the tapes themselves constituted the strongest evidence of motive, opportunity, planning and deliberation. The so-called whispering tape provided tangible proof of an ongoing relationship between defendants, and supported the prosecution's theory that defendants were plotting Joe's murder at least several days prior to the event. The second tape also shows planning activity by Mark, as he refers to "trad[ing] cars" and inquires of Brenda whether Jolynn, the victim's daughter, will be working the night of the murder. Although the dialogue is ambiguous and subject to interpretation, there is no doubt that the taped conversations provided the most dramatic and compelling evidence of guilt.
The centrality of the tapes was confirmed by the prosecutor in closing argument. She not only played the "whispering" tape for the jury but displayed an enlarged reproduction of the entire text of the conversation. She ridiculed defense counsel's suggestion that defendants were simply planning an innocent assignation, stating: "[The] conversations ... can only reasonably and logically be understood to mean that Brenda and Mark were planning to kill Joe Otto. The evidence shows it, and you know it. And I know it. And the Defendants know it. Anyone who puts those conversations in context knows that they were discussions about killing Joe Otto, period, not setting up a sexual rendezvous or anything else you might be able to stretch your imagination to think of."
The prosecutor repeatedly adverted to the tapes as concrete evidence of defendants' deliberate plan to commit murder. Referring to the conversation in which Mark asks Brenda whether Joe's daughter will be working the night of the murder and makes reference to "trad[ing]" cars, the prosecutor asks:
The prosecutor also stressed Brenda's reaction when first confronted with the tapes, particularly her response when the police asked whether she had ever discussed killing her husband on the telephone: "Does Brenda say, `Are you crazy?' Does she react with outrage? Does she say `How dare you suggest such a thing?' ... Brenda doesn't say either of these things. [¶] After several seconds, she says, `No, I don't think so.' And Brenda must have been thinking to herself, `My God, did we ever say "kill" on the phone? Didn't I turn off the tape recorder. Did that S.O.B. have another one some place? What do these people know?'"
The tapes, in short, were the linchpin of the state's case against defendants. Under any standard of error, the conclusion is inescapable that defendants' convictions must be reversed.
The decision of the Court of Appeal affirming the judgment of the trial court is reversed.
Lucas, C.J., Mosk, J., Panelli, J., Kennard, J., Baxter, J., and George, J., concurred.
Respondent's petition for a rehearing was denied August 20, 1992.
During the hearings, Senator Long, Chairman of the Subcommittee on Administrative Practice and Procedure of the Senate Judiciary Committee, noted that the three major areas in which private electronic surveillance was widespread were "`(1) industrial (2) divorce cases, and (3) politics. So far, we have heard no real justification for continuance of snooping in these three areas.'" (Hearings on Invasion of Privacy Before the Subcommittee on Administrative Practice & Procedure of the Senate Judiciary Committee, 89th Cong., 1st Sess., pt. 5 at p. 2261 (1965-1966), quoted in United States v. Jones, supra, 542 F.2d at p. 668, fn. 12; see also Kratz v. Kratz, supra, 477 F. Supp. at p. 471.) The subcommittee also heard testimony from the District Attorney of Dade County, Florida, indicating that domestic wiretapping was routine procedure in marital disagreements (Hearings, supra, pt. II, at p. 1009), as well as the testimony of several private investigators indicating that electronic surveillance was a common technique in domestic relations investigations. (Id., pt. 5, at pp. 2262, 2365, 2411, cited in United States v. Jones, supra, 542 F.2d at p. 668, fn. 12; Kratz v. Kratz, supra, 477 F. Supp. at p. 471.) For other passages from the legislative record illustrating a congressional awareness of the problem of domestic wiretapping, see United States v. Jones, supra, 542 F.2d at pages 668-669, footnotes 12, 14, 15, and 16.
Another court has distinguished Simpson from the situation where a family member acts with the aid of some third party, e.g., a private investigator. (Remington v. Remington (E.D.Pa. 1975) 393 F.Supp. 898.) In such a case, the court held that Title III's civil remedies are available in an action by one spouse against the other. (Id. at p. 901; see also White v. Weiss (8th Cir.1976) 535 F.2d 1067.) As several courts have observed, however, the participation of a nonfamily member constitutes a "classic `distinction without a difference.'" (United States v. Jones, supra, 542 F.2d at p. 670; accord Kratz v. Kratz, supra, 477 F. Supp. at p. 471; see also Comment, 27 Buffalo L.Rev., supra, at p. 146.) Under the Act it makes no difference whether the wiretap is placed by a spouse or by a third party acting at the direction of the spouse; the invasion and the illegality remain the same.
In another variant on the Simpson theme, the Tenth Circuit Court of Appeals has held that while the Act plainly prohibits one spouse from wiretapping the other (Heggy v. Heggy, supra, 944 F.2d 1537), it does not prohibit a custodial parent from eavesdropping on a minor child. (Newcomb v. Ingle (10th Cir.1991) 944 F.2d 1534.) The Newcomb court did not articulate a principled distinction between the two cases other than to observe that the spousal situation is "qualitatively different from a custodial parent tapping a minor child's conversations within the family home." (Id. at pp. 1535-1536.)