# Petition for Writ of Certiorari — Murdock v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 517 U.S. 1187

## Text

(
In The ee nasa —

Supreme Court of the United States
October Term, 1995

HAROLD D. MURDOCK,

Petitioner,

THE UNITED STATES OF AMERICA,
Respondent.

On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

Ne H. Fink

Counsel of Record for Petitioner
185 Oakland Avenue, #250
Birmingham, Michigan 48009
(810) 258-3181

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

Whether Title III of the Organized Crime Control Act
of 1968 bars the use by the government in a federal
criminal prosecution of tape recordings of telephone con-
versations made by a private party, in violation of its
provisions, but without the knowledge or participation of
the government.

ii

TABLE OF CONTENTS

Page
Question Presented for Review ................606- i
TORRE OF SS a ics as ceicn soos ue eeetanenanees ii
Table of Authocities Cited ic iss iesscecedvics censors iii
Citations of the Decisions Below................... 1
Basis of Jurisdiction in this Court.................. 1
Stateshan TwOHWOG sy +.i 6k ks kee ee aeeenieeenbaetuaneres 1
Statacnamt of Une CA6e 65 iy ab es bcc adeedeseweveseaes 4
Reasons for Granting the Writ...............00006. 8

CORCIUGION 63k isons chee eee 29

TABLE OF AUTHORITIES CITED

Page
Cases
Ardestani v. I.N.S., 502 U.S. 129 (1991)...........-+-. 16
Elkins v. United States, 364 U.S. 206 (1960)........ 22, 24
Gelbard v. United States, 409 U.S. 41 (1972) ...... passim
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564
SUD as kip ancvanebcscastweapesecveszecccccccs 16, 17
Heggy v. Heggy, 944 F.2d 1537 (10th Cir. 1991)....... 21
Mapp v. Ohio, 367 U.S. 643 (1961) .....-------- +--+: 22
North Carolina v. Alford, 400 U.S. 25 (1970) ........--. 6
United States v. American Trucking Associations, 310
BR ID CRED o ccc ccc sencevassccsecerccoseccees 10, 18
United States v. Baranek, 903 F.2d 1068 (6th Cir.
Die dledddsdeadursiveccceetesascucsdeces 18, 19, 20

United States v. Calandra, 414 U.S. 338, 354 (1974) .... 25
United States v. Giordano, 416 U.S. 505 (1974) ..9, 28, 29
United States v. Jacobsen, 466 U.S. 109 (1984)...9, 25, 26
United States v. Jones, 542 F.2d 661 (6th Cir. 1976) .... 21
United States v. Ron Pair Enterprises, Inc., 489 U.S.

cc bbb abeeboeesddeccecovencesnscesecece 16
United States v. Underhill, 813 F.2d 105 (6th Cir.

EG Ler ie saccéersebeocceusacccocsee 15, 16, 18
United States v. Verdugo-Urquidez, 494 U.S. 259

ache Gh bbs seVeCanvadasrbnces vedccceccces 25

United States v. Vest, 813 F.2d 477 (1st Cir. 1987)... .passim

iv

TABLE OF AUTHORITIES CITED - Continued

Page
Walter v. United States, 447 U.S. 649 (1980)........... 9, 26
Weeks v. United States, 232 U.S. 383 (1914)........... 22

CONSTITUTIONAL PROvISIONS, STATUTES
United States Constitution, Am. IV....22, 24, 25, 26, 27

United States Constitution, Am. XIV................ 24
OE a) RR a Pee eT rey ee PPE rer 27
i EIR Fs oh koa xsccas daccibrnrencn 1
Se ad We 66 Fils on bah n.cnendc ce tiarnane 10
BP Rees WF URE ck a ddenndtcesbincccecsspxinmls 7
MS Sees Oe rare. ehccaesscesssrovelarsn teu passim
Be ee ee ke a 6 o.n edie odo enawicnsce nd kavaxeh east 4
gS oe a | rr eereyT errr Tr rr rer 4
BO TBS: & TAD oa « on ke cade «gps cnkck ss)

App. 44

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
3 SOUTHERN DIVISION

UNITED STATES OF

AMERICA, CRIMINAL NO. 93-80036
Plaintiff, HONORABLE PAUL V.
a GADOLA
U.S. DISTRICT JUDGE
HAROLD MURDOCK,
Defendant.

/

MEMORANDUM OPINION AND ORDER DENYING
DEFENDANT’S MOTION FOR REHEARING

On August 4, 1993, the court adopted the magistrate
judge’s June 17, 1993 report and recommendation and
denied defendant Harold Murdock’s motion to dismiss
the indictment and/or to suppress evidence. On August
9, 1993, defendant filed a motion for rehearing of the
court’s August 4, 1993 order. Pursuant to the motion for
rehearing, both the government and defendant requested
that an evidentiary hearing be held so that a full and
complete record could be made of the factual circum-
stances surrounding the issues underlying defendant's
original motion. On September 24, 1993, the court con-
ducted an evidentiary hearing and heard argument from
both sides on defendant’s motion for rehearing. Because
of the additional information garnered during the hear-
ing and because of the importance of this motion, the
court will engage in a more extensive analysis of the
issues than would normally be necessary on a motion for

App. 45

rehearing. For the reasons discussed below, the court will
deny defendant’s motion.

I. Facts

Defendant Harold Murdock is charged with tax eva-
sion under 26 U.S.C. § 7201. He stands accused of accept-
ing $90,000 in bribes without reporting the money as
income on his tax return. Defendant allegedly took the
bribes while he served as the President of the Detroit
Board of Education in exchange for assistance on a milk
contract between a private contractor and the Detroit
Public Schools. The government’s case depends, to a
great extent, on a series of taped telephone conversations
in which defendant discusses the bribes with another
school official. Defendant is asking this court to suppress
the tape recorded conversations pursuant to Title III of
the Omnibus Crime Control and Safe Streets Act of 1968
(“Title III”), 18 U.S.C. § 2515.

The tape recordings were made in 1985 by Georgia
Murdock, defendant’s ex-wife. At the time that the con-
versations took place, defendant and his wife operated a
funeral parlor together that was located next door to Mrs.
Murdock’s home. The Murdocks had been separated
since 1984, and Mr. Murdock no longer lived with his
wife.

Mrs. Murdock had filed for divorce and she sus-
pected that her husband was having an affair and that he
was stealing money from their joint funeral parlor busi-
ness. As a result, she decided to tape record her hus-
band’s phone conversations in order to assist her in the
divorce proceedings. Twelve years earlier, Mrs. Murdock

App. 46

had approached a private detective about investigating
her husband’s activities. He had told her that it was
illegal for him to tape record her husband’s telephone
conversations, but that she could do so on her own.

Mrs. Murdock purchased a tape recorder and some
telephone equipment at Radio Shack. The funeral parlor
had two telephone lines. There were also two extensions
for these lines next door in Mrs. Murdock’s house so that
calls to the funeral parlor could be answered at home.
Following instructions set forth in a Radio Shack manual
about phone installation, Mrs. Murdock attached a tape
recorder to each of the two business extensions located in
her home. One extension was located in her own bed-
room, and the other extension was located in a neighbor-
ing bedroom. She also attached an on/off switch so that
she could control when the tape recorders would operate.

Mrs. Murdock taped conversations for approximately
three months in 1985. She recorded conversations that
were conducted over the two business lines when she
was out running errands and when she was-at home.
After approximately three months of taping, she accumu-
lated about two shoe boxes full of tapes. Because Mrs.
Murdock did not always monitor the recorders when she
turned them on, some of the tapes contained conversa-
tions made by other employees of the funeral parlor. Mrs.
Murdock also kept a log of all of the conversations so that
she could keep track of them. She stopped taping when
her son by another marriage told her that the taping was
illegal. In 1992, Mrs. Murdock destroyed the tapes and
the log.

ft Ni, awe 6 et ga ee —

App. 47

In April of 1986, Mrs. Murdock read a newspaper
article about a company that was losing the Detroit
schools milk contract. Based on the conversations that she
had tape recorded, Mrs. Murdock recognized that her
husband was involved in the events described in the
article. As a result, Mrs. Murdock then anonymously sent
a tape to the company that lost out on the contract, Jo-
Dan Limited Company, in order to tell them about her
husband’s activities. Jo-Dan forwarded the tape to local
prosecutors and the Detroit Free Press.

The newspaper published a story about the alleged
bribes based on the tape recordings on May 16, 1986. As a
result of the story, federal agents began an investigation.

Il. Interception Under Title Ill

Defendant seeks to suppress the tape recorded con-
versations and all evidence derived from them pursuant
to 18 U.S.C. § 2515 of Title III. Section 2515 states that

[w]henever any wire or oral communication has
been intercepted, no part of the contents of such
communication and no evidence derived there-
from may be received in evidence in any tri-
al... if the disclosure of that information would
be in violation of this chapter.

Id.

The government argues that Mrs. Murdock’s tape
recordings are not interceptions as defined by Title III.
Interception is defined as the “acquisition of the contents
of any . . . communication through the use of any elec-
tronic, mechanical or other device.” Id. § 2510(4). Section

App. 48

2510(5) defines the phrase “electronic, mechanical or
other device.” It states that the phrase means any device
other than “any telephone... instrument .. . furnished to
the subscriber or user by a provider of . . . electronic
communications service in the ordinary course of its busi-
ness and being used by the subscriber or user in the
ordinary course of its business.” Id. § 2510(5)(a)(i).

The government claims that the extension telephones
from which Mrs. Murdock recorded the conversations
were not devices used to intercept conversations gov-
erned under the statute. Rather, the government contends
that the taping of conversations over an extension does
not constitute an illegal interception under Title III. In
support of its position, the government relies on several
civil cases that have allowed the taping of conversations
from a telephone extension. Newcomb v. Ingle, 944 F.2d
1534, 1536 (10th Cir. 1991), cert. denied, 112 S. Ct. 903
(1992); Briggs v. American Air Filter Co., Inc., 630 F.2d 414,
417 (5th Cir. 1980); Anonymous v. Anonymous, 558 F.2d 677,
679 (2d Cir. 1977); Simpson v. Simpson, 490 F.2d 803, 809
(Sth Cir.), cert. denied, 419 U.S. 897 (1974). For example, in
Anonymous, the court held that a father had not violated
Title III when he taped calls between his daughter and his
ex-wife using an answering machine. The court said that
listening in on an extension phone would be lawful, and
therefore, any tape recording of those conversations
would also be lawful. Anonymous, 558 F.2d at 679.

Defendant claims that United States v. Jones, 542 F.2d
661 (6th Cir. 1976) is dispositive of the issue. In Jones, the
Sixth Circuit found that there was not a spousal immu-
nity exception to Title II]. The court found that a defen-
dant who had surreptitiously placed a wiretap in his ex-

App. 49

wife’s home was in violation of Title III. As the govern-
ment correctly points out, however, the Sixth Circuit
specifically did not rule on the extension phone doctrine.
The court stated: “We express no opinion on the dictum
in Simpson v. Simpson, 490 F.2d at 809 n.17 that Title II
does not reach a family member’s interception of a tele-
phone in the family home.” Id. at 673 n.24. The court
further noted that “there is a vast difference between
overhearing someone on an extension and installing an
electronic listening device to monitor all incoming and
outgoing telephone calls.” Id. The facts in Jones, however,
are clearly different. In this case, Mrs. Murdock installed
a tape recorder in her own private bedroom to monitor
calls made on two business extensions, not a bug in
someone else’s home. Because the factual scenario pre-
sented in Jones is so different and because the Sixth
Circuit has not yet squarely addressed the issue, the court
is free to decide the issue.

The court finds that an interception covered by Title
III did not take place. The facts of this case present a very
close question, but the court will uphold its previous
decision on this issue. From her own bedroom, Mrs.
Murdock was listening in and tape recording conversa-
tions that were occurring over an extension that had been
installed by the telephone company. This extension is one
of the devices excepted from Title III by section
2510(5)(a)(i). Most courts have found that there is no
difference between listening in on an extension and
recording conversations overheard on the extension for
purposes of section 2510(5)(a)(i). See Epps v. Saint Mary’s

App. 50

Hosp. of Athens, Inc., 802 F.2d 412 (11th Cir. 1986) (inter-
ception device was not equipment used to record; inter-
ception device was extension phone); Newcomb, 944 F.2d
at 1536 (“The difference between listening on the exten-
sion and tapping the line within the home in the context
here is not material.”); Anonymous, 558 F.2d at 679 (no
distinction between listening in and recording over exten-
sion phone); Simpson, 490 F.2d at 803 (same); see also
United States v. Harpel, 493 F.2d 346, 350° (10th Cir. 1974)
(“recording device . . . cannot itself be the acquiring
mechanism”). But see Deal v. Spears, 980 F.2d 1153 (8th Cir.
1992) (tape recorder was the device, not the extension
phone). The court is persuaded that section 2510(5)(a)(i)
was intended to cover tape recordings made over exten-
sion phones. Recording what one can legitimately and
lawfully listen in on does not turn the act into an inter-
ception.

The next issue is whether the extension telephone
lines were used by Mrs. Murdock in the ordinary course
of business as required by section 2510(5)(a). If the exten-
sions were not used in the ordinary course of business,
then the tape recordings of the conversations over those
extensions would constitute illegal interceptions under
Title Il. Mrs. Murdock’s efforts at taping her husband’s
conversations were extensive and continuing. However,
her purpose was to investigate his marital infidelities and
his alleged theft of funds from their joint business. Con-
duct with such a purpose, although it should have been
limited and circumscribed to a much greater extent, falls
within the ordinary course of business. The “ordinary
course of business” language was included in section
2510(5) so as to prevent “policemen and private

App. 51

intruders” from entering homes and listening in on exten-
sion telephones. Anonymous, 558 F.2d at 679 (citing Hear-
ings on the Anti-Crime Program Before Subcomm. No. 5 of the
- House Judiciary Comm., 90th Cong., 1st Sess. 901 (1967)).
But see Harpel, 493 F.2d at 351 (limiting scope of ordinary
course of business). As the Simpson court stated, “it is
clear that Congress did not intend to prohibit a person
from intercepting a family member’s telephone conversa-
tions by use of an extension phone in the family home.”
Simpson, 490 F.2d at 809 n.17. A situation where an
intruder or government agent tapped an extension does
not present itself here. As a result, because the tape
recordings were not made pursuant to an interception as
defined under section 2510(5), they will not be excluded
from evidence under section 2515.

Ill. Exclusion Under Section 2515

Even if the tape recorded conversations fell under
Title III’s definition of an interception, the court would
not suppress the recordings as evidence. The government
was not a party to the tape recordings. It did not encour-
age, nor did it even have any knowledge of the taping.
Government agents learned of the existence of the tapes
by reading a newspaper story. No deterrent effect is
served by punishing the government for the alleged
wrongdoings of Mrs. Murdock. The exclusionary rule
governing evidence obtained improperly under the
Fourth Amendment is said to set the criminal free when
the constable blunders. The court does not believe that
through enactment of section 2515 of Title III, Congress

App. 52

intended to set the criminal free when the ex-wife blun-
ders.

The deterrent nature of section 2515 is supported by
the legislative history. Section 2515 was intended to
“impose[ ] an evidentiary sanction to compel compliance
with the other prohibitions of the chapter.” S. Rep. 1097,
90th Cong., 2d Sess., reprinted in 1968 U.S.C.C.A.N. at
2185. The statute was intended to deny the “per-
petrator . . . the fruits of his unlawful actions in civil and
criminal proceedings.” Id. at 2156. The intent of Congress
would certainly have been followed had section 2515
served to deter Mrs. Murdock, but no deterrent effect is
worked on the government in this case.

The courts have already recognized an exception to
section 2515 in cases where the tape recordings are used
for purposes of impeachment. See, e.g., United States v.
Winter, 663 F.2d 1120, 1154 (1st Cir. 1981), cert. denied, 460
U.S. 1011 (1983); United States v. Caron, 474 F.2d 506 (5th
Cir. 1973). This exception was partly based on the legisla-
tive history of section 2515 which states that Congress did
not intend “to press the scope of [the] suppression role
[of section 2515] beyond present search and seizure law.”
S. Rep. No. 1097, supra, at 96, reprinted in 1968
U.S.C.C.A.N. at 2185. The report goes on to cite Walder v.
United States, 347 U.S. 62 (1954) as an example of the
search and seizure jurisprudence that Congress did not
intend to disrupt. Id. In Walder, the Court recognized an
exception to the Fourth Amendment exclusionary rule
when the illegally obtained evidence is used merely for
the purpose of impeachment.

App. 53

Under Fourth Amendment law, a similar exception
has been carved out in cases where government agents
receive evidence obtained by private parties. In United
States v. Jacobsen, 466 U.S. 109, 113-18 (1984), the Supreme
Court held that evidence falling into the government's
hands after a private search and seizure should not be
excluded. A similar exception applies in cases where
evidence is obtained in violation of the Fourth Amend-
ment by foreign government agents. United States v. Peter-
son, 812 F.2d 486, 490 (9th Cir. 1987) (“exclusionary rule
analysis” does not apply to “searches by foreign authori-
ties”); United States v. Rose, 570 F.2d 1358, 1361-62 (9th Cir.
1978); Birdsell v. United States, 346 F.2d 775, 782 (Sth Cir.),
cert. denied, 382 U.S. 963 (1965).

The Supreme Court has interpreted the Fourth
Amendment to protect the individual’s legitimate expec-
tation of privacy. Similarly, one of the overriding con-
cerns in enacting Title III was the “protection of privacy.”
Gelbard v. United States, 408 U.S. 41, 48 (1972). One of the
ways Congress hoped to protect privacy was through
section 2515. Because evidence obtained in violation of
Title III would be excluded, violators have no incentive to
commit such wrongs. Furthermore, violators face civil or
criminal penalties when they violate Title III. See 18
U.S.C. §§ 2511 & 2520. Thus, by recognizing an exception
to section 2515 where the government is free of any
involvement in the interception and where contravention
of section 2515 is not intended, the mandate of Title III is
still protected. Those in violation of Title Ill, including
possibly Mrs. Murdock, would still face punishment even
if the government were allowed to use the evidence at a
criminal trial.

App. 54

The one court of appeals that has addressed the issue
has concluded that no clean hands exception applies to
section 2515. In United States v. Vest, 813 F.2d 477 (1st Cir.
1987), the court excluded a tape recording made by a
codefendant on a perjury charge. The court held that
even though the government played no role in the taping,
the evidence could not be used in the government’s case
in chief because Congress did not explicitly provide for
such exceptions.!

The Sixth Circuit has also addressed a situation
where the language of Title III was at odds with the intent
of Congress. In United States v. Underhill, 813 F.2d 105 (6th
Cir. 1987), the Sixth Circuit refused to suppress tapes of
gambling transactions made by the bookies themselves in
violation of Title III. In Underhill, even though the tapes
could be excluded under a literal reading of the language
at issue, the court found Congress would not have
intended that criminals who voluntarily recorded their
own wrongdoing should be protected by section 2515.
The court noted that a “result contrary to the literal
meaning of the words is justified when the literal applica-
tion of a statute will produce a result demonstrably at
odds with the intentions of its drafters.” Id. at 111.
Because the court finds that suppression of the evidence
in this case would similarly place Congress’s intent on its
head, the court will not follow the decision of the First
Circuit’s interpretation of section 2515.

1 The court did note, however, that the citation of Walder in
the legislative history did mean that an exception to section
2515 did exist if the evidence was used for purposes of impeach-
ment. Vest, 813 F.2d at 482.

App. 55

A clean hands exception to section 2515 will not
create the problem of government agents encouraging
violations of Title III. In the Fourth Amendment context,
similar possibilities arise. If government agents encour-
age private parties or foreign governments to violate the
Fourth Amendment in order to avoid the exclusionary
rule, then the Fourth Amendment has been violated and
the evidence will be excluded. The courts have carved out
such exceptions to the Fourth Amendment with an
awareness that abuse is possible. With either Title III or
the Fourth Amendment, abuse will always be possible.
The question is whether the fear of possible abuse should
bar evidence or a crime that the government legitimately
acquired. Congress intended that section 2515 should
prevent the perpetrator of an interception from getting
the fruits of his wrongdoing. Suppression of the evidence
in this case would not serve this congressional purpose.
Thus, even if the tape recordings were made pursuant to
an interception as defined by section 2510, the court
would still allow the evidence because the government
had no involvement in the alleged interception.

ORDER

Therefore, it is hereby ORDERED that defendant's
motion for rehearing is DENIED.

SO ORDERED.
Dated: 1/4/94 /s/ Paul V. Gadola
PAUL V. GADO

A LA
UNITED STATES
DISTRICT JUDGE

App. 56

NO. 94-1984

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, ORDER

(Filed

HAROLD D. MURDOCK, Oct. 6, 1995)

)
)
)
Vv. )
)
)

Defendant-Appellant. )
BEFORE: JONES and NORRIS, Circuit Judges; and
DOWD,’ District Judge.

The court received a petition for rehearing en banc,
and the petition having been circulated not only to the
original panel members but also to all other active judges
of this court, and no judge of this court having requested
a vote on the suggestion for rehearing en banc, the peti-
tion for rehearing has been referred to the original hear-
ing panel.

The panel has further reviewed the petition for rehear-
ing and concludes that the issues raised in the petition
were fully considered upon the original submission and
decision of the case. Accordingly, the petition is denied.

ENTERED BY ORDER
OF THE COURT

/s/ Leonard Green
Leonard Green, Clerk

* Hon. David D. Dowd, Jr., United States District Judge for
the Northern District of Ohio, sitting by designation

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