FLAHERTY v. ARKANSAS, 415 U.S. 995 (1974)
U.S. Supreme Court
FLAHERTY v. ARKANSAS , 415 U.S. 995 (1974)415 U.S. 995
Claude Earl FLAHERTY and Gene
Whipple
v.
State of ARKANSAS.
No. 73-1169.
Supreme Court of the United States
March 25, 1974
On petition for writ of certiorari to the Supreme Court of Arkansas.
The petition for a writ of certiorari is denied.
Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL concur, dissenting.
Petitioners have been convicted of operating a gambling house, in violation of Ark.Stat.Ann. 41-2001. They challenge the introduction into evidence of tape recordings of telephone conversations which they claim were seized in violation of Title III of the Omnibus Crime Control Act of 1968, 18 U.S.C. 2510 et seq.
A warrant was issued to search Flaherty's home. After being admitted to the home, state officers place petitioners under arrest and without petitioners' consent monitored incoming phone calls placing bets for one hour. An officer attached a suction cup containing an induction coil to the telephone and, impersonating
petitioners,1 recorded the calls being made to the telephone. It is indisputed that the search warrant did not authorize the search and seizure of such calls, and the petitioners did not consent to the seizure of the calls. [Footnote 2] Petitioners argue that the police intent to record the calls without securing a search warrant is evidenced by the fact the police brought the induction coil and recording equipment with them when executing the warrant.
Petitioners claim that the seizures were made in violation of
Title III of the Omnibus Crime Control Act of 1968, a detailed
scheme created by Congress to allow the use of electronic
surveillance by the States to intercept wire and oral
communications only under stringently defined circumstances,
clearly not met here. [Footnote
3] Under [415
U.S. 995 , 997]
U.S. Supreme Court
FLAHERTY v. ARKANSAS , 415 U.S. 995 (1974) 415 U.S. 995 Claude Earl FLAHERTY and Gene Whipplev.
State of ARKANSAS.
No. 73-1169. Supreme Court of the United States March 25, 1974 On petition for writ of certiorari to the Supreme Court of Arkansas. The petition for a writ of certiorari is denied. Mr. Justice DOUGLAS, with whom Mr. Justice BRENNAN and Mr. Justice MARSHALL concur, dissenting. Petitioners have been convicted of operating a gambling house, in violation of Ark.Stat.Ann. 41-2001. They challenge the introduction into evidence of tape recordings of telephone conversations which they claim were seized in violation of Title III of the Omnibus Crime Control Act of 1968, 18 U.S.C. 2510 et seq. A warrant was issued to search Flaherty's home. After being admitted to the home, state officers place petitioners under arrest and without petitioners' consent monitored incoming phone calls placing bets for one hour. An officer attached a suction cup containing an induction coil to the telephone and, impersonating Page 415 U.S. 995 , 996 petitioners,1 recorded the calls being made to the telephone. It is indisputed that the search warrant did not authorize the search and seizure of such calls, and the petitioners did not consent to the seizure of the calls. [Footnote 2] Petitioners argue that the police intent to record the calls without securing a search warrant is evidenced by the fact the police brought the induction coil and recording equipment with them when executing the warrant. Petitioners claim that the seizures were made in violation of Title III of the Omnibus Crime Control Act of 1968, a detailed scheme created by Congress to allow the use of electronic surveillance by the States to intercept wire and oral communications only under stringently defined circumstances, clearly not met here. [Footnote 3] Under Page 415 U.S. 995 , 997 Title III, there must be a judicial order to intercept conversations, the application for the order must have been authorized by the principal prosecuting attorney of the State or a political subdivision, 18 U.S.C. 2516(2), and must contain carefully specified information, 2518(1), and the judge before issuing the order must make detailed findings of fact, 2518(3), and include certain information in the order, 2518(4). The Arkansas Supreme Court suggested that the calls in this case were not 'intercepted' within the meaning of the statute, since the police officer merely answered the telephone when it rang. The contention is without merit. Title III defines 'intercept' broadly as the 'aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.' 18 U.S.C. 2510(4). The contents of the communications in this case were clearly acquired by use of electronic and mechanical devices-an induction coil was affixed to the telephone and the conversations thereby monitored were fed into a tape recorder. That an 'interception' can occur without overhearing a conversation being carried between two other persons is made clear by 2511(2)(c) of Title III. This section comprehends that a party to a communication can 'intercept' it within the meaning of the statute; it provides, however, that such interception is not unlawful within the meaning of Title III: