Police Officer Johnson's patrol car was equipped with a radio scanner that Officer Johnson purchased privately from Wal-Mart Discount Store. The scanner allows its user to monitor a number of radio frequencies. Officer Johnson testified at trial that he had programmed the scanner to a radio frequency commonly used by cordless telephones so that he could listen to cordless telephone conversations.

On March 17, 1994 at 12:46 a.m., Officer Johnson was patrolling within a block of the appellant's residence, randomly listening to the scanner when he overheard a conversation between Jim Smith and Jim's brother implicating Jim in drug-dealing activity. Officer Johnson then activated the police-issue video camera in his patrol car and through the audio-recording device on the camera, recorded additional conversations between Jim and his brother. As a result of these overheard conversations and the recordings, Jim was indicted on for drug trafficking activities.

Jim's attorney wishes to have the evidence excluded at trial. Assume the exclusionary rule is in effect. Did Officer Johnson's use of a scanner constitute a search under the Fourth Amendment?
Did his use of the audio-recording device on the camera constitute a search?

 Submitted by Russ McLaughlin

Wake Forest University

Answer

See Chandler v. State, 1996 WL 240374 (Ala.Cr.App) and Mozo v State, 632 So. 2d 623 (Fla.Dist.Ct.App. 1994).

(1) This interception does not violate the Omnibus Crime Control and Safe Streets Act prohibition against warrantless interception of wire, oral, and electronic communication.  Radio transmission of cordless phones are expressly excluded.

(2) Absent special circumstances including measures taken by the parties to secure the conversation from interception in some way, there is no reasonable expectation of privacy in conversations made over a cordless telephone; therefore, interception of the transmissions by police is not a violation of the 4th amendment.

(3) The exclusionary rule does not exclude illegally obtained evidence, it only excludes evidence seized in violation of the 4th Amendment.