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From: TEXAS LAWYER
      WEEKLY CASE SUMMARIES-JAN. 11, 1993

CASE SUMMARIES EDITOR: Diane Burch Beckham
ASST. CASE SUMMARIES EDITOR: Richard Williams
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5th US CIRCUIT
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-EVIDENCE-
RECORDED CONVERSATIONS/CORDLESS TELEPHONES/4TH AMENDMENT/USE OF
FIREARM/SUFFICIENCY OF THE EVIDENCE/BEARCAT SCANNERS

 *Cordless phone communications are not protected under Title 3 of the
  Omnibus Crime and Control and Safe Streets Act of 1968, 18 U.S.C. 2510-
  2521.

 *There may be a reasonable expectation of privacy in cordless phone
  conversations such that they are protected by the 4th Amendment, but the
  application of the 4th Amendment in a given case depends upon the specific
  technology used.

 *Possession of a firearm is sufficient to satisfy the requirement of "use"
  of a firearm if relation to a drug trafficking crime.
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United States v. Smith, No. 91-5077, 11/12/92

  FACTS: A neighbor of the defendant's suspected the defendant of breaking
into his house.
  The neighbor noticed that the defendant used a cordless telephone and one
of his co-workers suggested he listen to the defendant's conversations using
a Bearcat scanner.
  By using the scanner, the neighbor discovered that the defendant was a drug
dealer.
  One of the neighbor's friends worked in the police department. The neighbor
told him that the defendant was trafficking in cocaine.
  The police instructed the neighbor to record the defendant's phone calls
and gave him some blank tapes to do so. On one occasion, members of the
police department were present and assisted in the taping of calls.
  The tape recordings led to the arrest of the defendant and four others on
drug-trafficking charges.
  After the arrest, the defendant consented to a search of his home. The
search uncovered crack cocaine, drug paraphernalia, customer lists and a
loaded revolver.
  The defendant was convicted by a jury on five counts arising from drug-
trafficking, including one count of using or carrying a firearm during or in
relation to a drug trafficking crime.
  On appeal, the defendant argues that the interception of his phone calls
violated Title 3 of the Omnibus Crime and Safe Streets Act of 1968, 18 U.S.C
2510-2521, and the 4th Amendment, and that the evidence was insufficient to
sustain his conviction on the firearms charge.

  HOLDING: Affirmed. The Court holds the evidence was sufficient to sustain
the defendant's conviction for use of a firearm in relation to a drug-
trafficking charge and finds that the interception of the phone calls did not
violate Title 3. The Court further holds that the defendant "failed to carry
his burden showing that the evidence against him was obtained in violation of
his 4th Amendment rights."
  The Court notes that it has previously held in United States v. Robinson,
857 F.2d 1006 (5th Cir. 1988), that possession of a gun is sufficient to
satisfy the `use' requirement of the defendant's firearm conviction.
  "In (United States v.)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."
  The Court observes that every court that has considered the argument that
Title 3 applies to cordless telephone communications has rejected it.
  "This Court sees no reason to buck that trend."
  The Court notes that Title 3 prohibits the non-consensual interception of
wire, oral and electronic communication without judicial approval and that
violators are subject to criminal prosecution.
  The Court further notes that Title 3 prohibits illegally intercepted
communications from being introduced in any trial.
  The Court observes that Cordless phone transmissions are specifically
excluded from the definitions of "wire" and "electronic" communication.
  The Court disagrees with the defendant's argument that the cordless phone
transmissions fit within the definition of "oral communications" as used in
Title 3.
  "Such an interpretation is out of step with both the plain language of
Title 3 and with its legislative history."
  The Court finds that the intercepted transmissions were not within the
plain language of the statute.
  "In this case it was not [the defendant's] actual utterances that were
overheard and recorded by [the neighbor]; it was a radio signal produced by
[the defendant's] cordless phone that was intercepted, and it was a
reconstruction of the conversation produced by the Bearcat scanner that was
tape recorded."
  The Court notes that its ruling is supported by the legislative history of
Title 3.
  "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."
  The Court observes that the defendant's communication was carried by radio
waves, not sound waves.
  The Court notes that the defendant must establish two things in order to
show a 4th Amendment violation.
  "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, [the defendant]
must show that the government intrusion was unreasonable given the particular
facts of the case."
  The Court notes that a search occurs when the government infringes on a
person's expectation of privacy.
  The Court finds that the defendant's own expectation of privacy does not
alone give rise to 4th Amendment protection.
  "The expectation of privacy must be one that society is prepared to
recognize as reasonable."
  The Court notes that the 4th Amendment protects land-based telephone line
communications but not pure radio communications.
  "Cordless telephones are difficult to characterize because they do not fit
neatly into either category."
  The Court notes that the phone looks and sounds like a normal land line
telephone but actually uses a radio signal.
  The Court sites to previous cases, including State v. Howard, 679 P.2d 197
(1984), in which that court held that there was no reasonable expectation of
privacy in cordless phone transmissions because of the ease with which the
could be monitored.
  "While we agree completely with these earlier decisions, it is important to
note that since those cases were decided cordless technology has continued to
evolve."
  The Court notes that cordless phone transmissions are much more difficult
to intercept today.
  "Although radio scanners--like the one used by [the neighbor]--can still
monitor most cordless phones, only a small percentage of people own such
scanners."
  The Court finds that as technology advances cordless phone communications
will be entitled to 4th Amendment protection at some point.
  "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 4th Amendment concerns simply because it is carried by a `cordless'
phone."
  The Court finds, however, that the defendant failed to introduce evidence
to support his argument that the interception of his conversations violated
the 4th Amendment.
  "[The defendant] 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."
  The Court holds, therefore, that even under a correct application of the
law, the defendant failed to meet his burden of proof under the 4th
Amendment.

  OPINION: Johnson, Circuit Judge; panel consisting of Politz, Chief Judge,
Johnson and Jolly, Circuit Judges.
  ATTORNEYS: Bruce N. Smith, Beaumont, for the defendant; Assistant U.S.
Attorney Louis Guirola, Jr., Beaumont, for the U.S.
  TRIAL COURT: Howell Cobb; U.S. District Court, Eastern District of Texas.