Hands Off: United States v. Crabtree and the Proper Application of Title III of the Omnibus Crime Control and Safe Streets Act of 1968

8/12/2019 Hands Off: United States v. Crabtree and the Proper Application of Title III of the Omnibus Crime Control and Safe

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123

Hands Off: United States v. Crabtree

and the Proper Application of Title IIIof the Omnibus Crime Control and

Safe Streets Act of 1968

Nicholas J. LaForge

I.INTRODUCTION

Title III of the Omnibus Crime Control and Safe Streets Act of 1968

(Title III), 18 U.S.C. 2515, prohibits the use of intercepted wire or oralcommunications as evidence in trials or hearings.1 Congresss goal inenacting Title III was to protect the privacy of communications and

describe proper situations for authorized interception of wire and oralcommunications.2 Recently, in United States v. Crabtree, the FourthCircuit Court of Appeals decided whether a clean hands exception existsto Title III that would admit evidence in the form of interceptedcommunications if the government had no part in obtaining thosecommunications.3The Crabtreecourt held that there was no clean handsexception and excluded evidence presented by the government.4 Theopposite view has been taken by the Sixth Circuit Court of Appeals, whichhas admitted evidence in criminal cases of intercepted communications as

long as there is no government involvement.5

In Crabtreethe government obtained a recording made by Betty Starnes,the girlfriend of the defendant, Daniel Crabtree.6In the recording, Crabtreestated that he was going to burn down Starness house and car. 7Crabtreehad been paroled from prison on supervised release when Starnes gave therecording to his parole officer, who subsequently began proceedings to

1. Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2515 (2006).

2. S.REP.NO. 90-1097, at 66 (1968).

3. United States v. Crabtree, 565 F.3d 887, 889 (4th Cir. 2009).

4. Id.at 888, 892.

5. United States v. Murdock, 63 F.3d 1391, 1404 (6th Cir. 1995).

6. Crabtree, 565 F.3d at 887-88.7. Id.at 888.


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124 CRIMINAL AND CIVIL CONFINEMENT [Vol. 37:123

revoke his parole.8 The district court admitted the tapes into evidenceultimately leading to the revocation of Crabtrees parole and a twenty-fourmonth prison sentence, to be followed by three additional years ofsupervised release.9

This Comment will argue that the Fourth Circuit correctly refused toinfer a clean hands exception to 2515 by taking into account the literaltext of the statute and the intent of the legislators in drafting the OmnibusCrime Control and Safe Streets Act of 1968.10 The result may imposehurdles for the government in prosecuting accused persons, but it is clearthat privacy rights of citizens were a major concern of Congress in enacting

Title III and that any reduction in the rate of convictions will beinsignificant.11 Part II briefly examines the history of Title III of theOmnibus Crime Control and Safe Streets Act of 1968. Part III discusses the

courts opinion in Crabtreein order to put the analysis into context. Part IVlooks at the language of the statute and its application by the Fourth Circuitin Crabtree. Part V examines how legislative intent bolsters the courts

decision in Crabtree. Part VI explains why the Fourth Circuits holding iscorrect and should be applied over that of the Sixth Circuit, and concludesthat privacy rights trump the governments need to utilize intercepted

communications to secure convictions.

II.HISTORY OF TITLE IIIOF THE OMNIBUS CRIMECONTROL AND SAFE STREETS ACT OF 1968

The legislation that became the Omnibus Crime Control and Safe StreetsAct of 1968 was introduced to assist State and local governments inreducing the incidence of crime, to increase the effectiveness, fairness, andcoordination of law enforcement and criminal justice systems at all levelsof government.12 In addition, Title III was specifically added after two

Supreme Court cases,Berger v. New York

13

and Katz v. United States,

14

setthe constitutional standards for wiretapping and electronic surveillance.15

InBerger, the Supreme Court held that a New York State law permittingeavesdropping was too broad in its scope and ran afoul of the FourthAmendment.16The District Attorney had obtained an order to wiretap the

8. Id.

9. Id.

10. See generally 18 U.S.C. 2510-2522 (2006).

11. SeeS.REP.NO. 90-1097, at 66 (1968).

12. Id.at 1.

13. 388 U.S. 41 (1967).

14. 389 U.S. 347 (1967).15. S.REP.NO. 90-1097, at 27-28.

16. Berger, 388 U.S. at 63-64. The Fourth Amendment states that:

The right of the people to be secure in their persons, houses, papers, and effects,


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2011] HANDS OFF: UNITED STATES V. CRABTREE 125

office of an attorney who was accepting bribes on behalf of members of theNew York State Liquor Authority for issuing new liquor licenses.17JusticeClarks majority opinion noted that the New York law, as written, did not

include a particular requirement, as found in the Fourth Amendment, that awarrant include with particularity the place to be searched, and the

persons or things to be seized; the statute only required reasonableground to believe that evidence of crime may be obtained by theeavesdrop.18The United States Constitution does not ban eavesdropping,but there are certain requirements that must be met before a warrant can beissued in order to maintain the level of privacy that is of central concern tothe Fourth Amendment.19

Although Berger involved New Yorks wiretapping law20 and Katzconcerned federal wiretapping practices,21 the Court arrived at the sameoutcome in both decisions.22The law enforcement officers in Katzrecordedthe defendant while he spoke on a public telephone.23 The governmentbelieved it was permitted to do so because there was no physicalpenetration into the phone booth since the recording device was placed onthe outside of the booth.24Six months after Berger was decided,25JusticeStewart wrote on behalf of the Court in Katz: [w]herever a man may be,he is entitled to know that he will remain free from unreasonable searchesand seizures.26 In addition to the Supreme Courts requirement for

constitutional protections, many law enforcement and legal organizationssupported the legislation.27 Thus, the Supreme Court firmly laid out theprinciple that privacy rights were paramount when law enforcement

against unreasonable searches and seizures, shall not be violated, and no Warrants

shall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons or things to beseized.

U.S.CONST. amend. IV.

17. Berger, 388 U.S. at 44-45.

18. Id.at 55-56.

19. U.S.CONST. amend. IV;Berger, 388 U.S. at 63.

20. Berger, 388 U.S. at 43.

21. Katz v. United States, 389 U.S. 347, 348 (1967).

22. Compare Katz, 389 U.S. at 358-59, with Berger, 388 U.S. at 44.

23. Katz, 389 U.S. at 348.

24. Id.at 352.

25. S.REP.NO. 90-1097, at 74 (1968).

26. Katz, 389 U.S. at 359.

27. S. REP.NO. 90-1097, at 75-76 (1968). Some of the examples of groups that

support this legislation are the Judicial Conference of the United States, National

Association of Attorneys General, National District Attorneys Association, The National

Council on Crime and Delinquency, etc.Id.


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conducted wiretapping,28 and the legislature took action using these twocases in creating Title III.29

III.ASUMMARY OF UNITED STATES V.CRABTREE

A. Facts of Crabtree

Crabtreeinvolved a recording made by the girlfriend of the defendant,Daniel Crabtree, which subsequently was given to his parole officer inorder to revoke his supervised release.30The recordings that were used inthe proceedings against Crabtree were not the sole reason the hearing was

initiated; in fact, there were a total of thirteen alleged violations of hisparole.31 However, the most serious allegations were the arson threatsCrabtree made against Betty Starnes, which were the subject matter of the

recordings.32 The defense objected to the admission of the tapes intoevidence, but the district court overruled the objection.33 In doing so, thedistrict court specifically noted the lack of involvement by the government

in creating the recordings and read a clean hands exception into TitleIII.34The court found Crabtree guilty of the violations of his supervisedrelease, and he was sentenced to twenty-four months in prison as well as to

three additional years of supervised release following his prison term.35Crabtree appealed to the Fourth Circuit, arguing that the lower court erredin applying precedent relating to statutory construction and in creating aclean hands exception.36

B. The Holding of Crabtree

In reversing the district courts ruling on a clean hands exception to 2515, the Fourth Circuit held that [b]ecause the plain language of 2515prohibits the introduction of improperly intercepted communications

without regard to whether the government was involved in the interception,the district court erred by admitting evidence of the conversations taped by

Starnes.37 The court took into account the plain language of the statute

28. See Katz, 389 U.S. at 358-59; Berger v. New York, 388 U.S. 41, 43-44 (1967).

29. S.REP.NO. 90-1097, at 75-76 (citing Katz, 389 U.S. at 358-59;Berger, 388 U.S.

at 44).


31. Id.

32. Id.

33. Id.

34. Id.at 888-89.

35. Id.at 888.

36. Brief of Appellant at 11, 13, United States v. Crabtree, 565 F.3d 887 (4th Cir.

2009) (No. 08-4411), 2008 WL 4761163.

37. Crabtree, 565 F.3d at 892.


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when deciding not to apply the clean hands exception that the districtcourt used to admit the recordings into evidence.38To bolster the argumentfor not implementing a clean hands exception, the court also turned to the

legislative intent, which highlighted the public policy goals of Title III;specifically to provide privacy protection to individuals.39Thus, in relying

on the literal meaning of the statute and the public policy argument, thecourt concluded there were no circumstances supporting such anexception.40

C. The Effect of Crabtree

The reversal and subsequent remand to the Western District of Virginia,with orders to exclude the recorded evidence,41 could potentially lead tofewer criminal convictions by the government.42 The Fourth Circuitsopinion noted there could be a potential drop in convictions, butnevertheless concluded there cannot be a clean hands exception to 2515

because the privacy concerns, of which Congress was undoubtedly aware,trump law enforcement objectives.43 The following sections will discussthe two approaches the court used in reaching its decision: first, that itapplied the plain meaning of the statute; and second that the decision wasin accordance with the intent of the legislature. It will conclude that theapplication of the law in Crabtree was proper and will not result in anegative effect on law enforcement or the conviction rate of criminals.

IV.THE UNAMBIGUOUS LANGUAGE OF 18U.S.C.2515

A. The Plain Meaning of the Statute

The Fourth Circuit looked first to the language of 18 U.S.C.2515, thestatute under which Crabtree objected to the recordings being admittedagainst him:

Whenever anywire or oral communication has been intercepted, no part

of the contents of such communication and no evidence derived

therefrom may be received in evidence in any trial, hearing, or other

proceeding in or before any court, grand jury, department, officer,

agency, regulatory body, legislative committee, or other authority of the

United States, a State, or a political subdivision thereof if the disclosure

38. Id. at 889.

39. S.REP.NO. 90-1097, at 11 (1968).


41. Id.at 892.

42. Id.at 890-91.

43. Id. at 890.


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of that information would be in violation of this chapter.44

In doing so, the court applied a standard that has been repeated many timesby the Supreme Court: [C]ourts must presume that a legislature says in a

statute what it means and means in a statute what it says there.45In what

might appear to be an overly simplistic statement, the Crabtree courtstated: In our view, the issue is resolved by the language of 2515

itself.46 Reading the literal language of the statute makes it abundantlyclear that there is no written exception in the statute for communicationsthat are intercepted by parties other than law enforcement or othergovernmental organizations. The court directly states, we simply see nogaps or shadows in the language that might leave lurking a clean-handsexception.47

In fact, the Supreme Court has dealt with a similar literal reading of 2515 in Gelbard v. United States (Gelbard II).48 In Gelbard II thedefendants were found in contempt after refusing to testify in a grand juryproceeding.49 The defendants, Gelbard and Parnas, objected to testifying

because the interrogation would center on recorded statements that wereintercepted by federal law enforcement agents who had a warrant toconduct surveillance on several other menbut not the defendants

themselves.50 Before the Supreme Court weighed in, the Third51 andNinth52 Circuits had been split on whether to allow the recordings fromsuch situations into evidence.53The Third Circuit held that 2515 could beinvoked to exclude illegally gathered evidence from contempt proceedings,which took place after a grand jury witness refused to answer questionsrelated to statements recorded by illegal government wiretaps.54 Thecontrary position was taken by the Ninth Circuit, holding that 2515cannot be invoked to exclude evidence from contempt proceedings55because [a] witness before a grand jury lacks standing to challenge a

statute on constitutional grounds unless the statute directly bears upon his

44. 18 U.S.C. 2515 (2006) (emphasis added).

45. See, e.g., Conn. Natl Bank v. Germain, 503 U.S. 249, 253-54 (1992) (citations

omitted).


47. Id.

48. Gelbard v. United States (Gelbard II), 408 U.S. 41, 43 (1972).

49. Id. at 42-43.

50. Id.at 43-44.

51. In re Grand Jury Proceedings, Harrisburg, Pa., 450 F.2d 199 (3d Cir. 1971).

52. United States v. Gelbard (Gelbard I), 443 F.2d 837 (9th Cir. 1971).

53. Gelbard II, 408 U.S. at 44 (citing Gelbard I, 443 F.2d 837, 838-39; In re Grand

Jury Proceedings, 450 F.2d at 201-02, 216).

54. In re Grand Jury Proceedings, 450 F.2d at 202.

55. Gelbard I, 443 F.2d at 838.


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privilege against self-incrimination.56Following this ruling by the NinthCircuit, the Supreme Court addressed the specific issue of the applicationof 2515 in grand jury proceedings.57

The Supreme Court looked at the plain language of 2515 anddetermined that [t]he unequivocal language of 2515 expresses thefundamental policy adopted by Congress on the subject of wiretapping andelectronic surveillance. As the congressional findings for Title III makeplain, that policy is strictly to limit the employment of those techniques ofacquiring information.58Thus, it is clear that when the Crabtreecourt readthe statute, applied the plain meaning, and denied any clean handsexception, it was merely applying the well-established precedent laid out in

Gelbard IImore than three decades ago.59The adherence to precedent was

the first of two steps properly taken by the Crabtreecourt in holding thatthere is no clean hands exception to 2515.60

B. United States v. Murdock: Another Interpretation

In contrast to the Fourth Circuit, the Sixth Circuit has inferred a cleanhands exception to 2515.61 United States v. Murdock was decided in1995 and involved recordings made by the defendants wife during theircontentious divorce.62The recordings included a conversation in which Mr.

Murdock accepted a bribe through his role as president of the DetroitSchool Board to award a milk contract to a local dairy farm.63The tapeswere first sent to the dairy farm that lost the milk contract, which were

subsequently submitted to the Wayne County prosecutor, and later, federalagents built a tax fraud case based on the contents of the tapes, which Mrs.Murdock had illegally recorded.64

The Sixth Circuit found a way to admit the evidence against Mr.

Murdock by noting that the government had no involvement in therecording and that it simply got a lucky break.65 The Sixth Circuitreferenced United States v. Vest,66 a First Circuit decision, and

56. Id. (citing Carter v. United States, 417 F.2d 384, 386-87 (9th Cir. 1969)).

57. Gelbard II, 408 U.S. at 42-43.

58. Id. at 47.

59. United States v. Crabtree, 565 F.3d 887, 889-90 (4th Cir. 2009);see also Gelbard

II, 408 U.S. at 47(expressing the language of 2515 is unequivocal).

60. 18 U.S.C. 2515 (2006); Crabtree, 565 F.3d at 892.

61. United States v. Murdock, 63 F.3d 1391, 1402 (6th Cir. 1995).

62. Id. at 1392.

63. Id. at 1393.

64. Id.

65. Id. at 1402.

66. United States v. Vest, 813 F.2d 477, 477 (1st Cir. 1987) (holding that there is no


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distinguished it on the ground that it too broadly interpreted Gelbard II.67The court held that the purpose of enacting Title III was to preventvictimization in the form of invasion of privacy.68 The Murdock courtnotes, [i]n Gelbard, the witness was asserting that the government itself

had engaged in illegal wiretapping and electronic surveillance.69

This ledthe court to reason that the First Circuit read Gelbard[II] as standing for

the proposition that any and all illegally intercepted evidence must besuppressed in order to protect the victims privacy.70 The broadinterpretation by the First Circuit conflicts with the analysis inMurdockwhich itself strays from the precedent set out in Gelbard II that thelanguage in 2515 is clear.71The deviation creates an unwarranted cleanhands exception that is not authorized by the text of the statute.

V.ALTERNATIVE MEANS TO AVOIDING A CLEAN HANDSEXCEPTION

A. The Integration of Legislative Intent of 18 U.S.C. 2515 intoJudicial Reasoning

The Crabtree opinion does not end with a simple reading of the text ofthe statute and a decision that there is insufficient justification for a clean

hands exception.72 The court continues its analysis in line with theprinciple that [i]f a literal reading of the statute produces an outcome thatis demonstrably at odds with clearly expressed congressional intent to thecontrary, the court can look beyond the language of the statute.73In fact,the Supreme Court in Gelbard II looked at the legislative intent of Title IIIand stated that although Title III authorizes invasions of individualprivacy under certain circumstances, the protection of privacy was anoverriding congressional concern.74 Indeed, the legislative history notesthis concern explicitly by stating that a suppression rule is necessary and

proper to protect privacy.75 The protection of privacy in this contextmeans not only protection from the act of wiretapping (whether beingconducted by the government or an individual), but also protection fromthe contents of the communication being divulged in a court proceeding or

clean hands exception to 2515 including in perjury prosecutions).

67. Murdock,63 F.3d at 1401.

68. Id.

69. Id.

70. Id.

71. Gelbard v. United States (Gelbard II), 408 U.S. 41, 47 (1972); Murdock, 63 F.3d

at 1401.


73. Id. (quoting Sigmon Coal Co. v. Apfel, 226 F.3d 291, 304 (4th Cir. 2000)).

74. Gelbard II, 408 U.S. at 48 (footnote omitted).

75. S.REP.NO. 90-1097, at 96 (1968) (citations omitted).


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other hearing.76

In furtherance of the public policy that drove the legislators intent, itwas noted that [v]irtually [everyone] concede[s] that the use of

wiretapping or electronic surveillance techniques by private unauthorizedhands has little justification where communications are intercepted withoutthe consent of one of the participants.77 The Fourth Circuit correctlyapplied this legislative intent in Crabtree by reversing the lower courtsdecision to admit into evidence the privately recorded tapes. This was thesecond of two steps taken by the court to conclude there is no cleanhands exception to 2515.78

Furthermore, the Fourth Circuits application of legislative intent fallsneatly in-line with other circuits. The legislative intent of 2515 has beenapplied in the Third Circuit to further emphasize the importance ofmaintaining privacy protections with regard to all illegally interceptedcommunications.79In denying the government a clean hands exception,

the Third Circuit pointed out that it would not make sense for Congress toallow evidence of intercepted communications to come in simply becausethe government did not participate in their interception; thecommunications were illegally obtained regardless of the interceptor.80This interpretation results in the majority of circuit courts that have heardthe issue deferring to the legislative intent, and thus refusing to imply aclean hands exception.81The Third Circuit succinctly stated, [w]e haveno authority to restrike the balance that Congress has already struck byplacing in the statute a clean hands exception that Congress did not.82

B. United States v. MurdockRevisited

In order to rationalize the clean hands exception, the Sixth Circuit in

Murdock read the legislative intent very narrowly.

83

In that regard, theSixth Circuit explained:

Our independent reading of the legislative history of Title III leads us to

the conclusion that while privacy was a major goal of the legislation, it

was privacy in a particular context, namely, that an individual who is


77. S.REP.NO. 90-1097, at 69 (1968).


79. In reGrand Jury, 111 F.3d 1066, 1076 (3d Cir. 1997).

80. Id.at 1078.

81. Crabtree, 565 F.3d at 892; Chandler v. United States Army, 125 F.3d 1296, 1302

(9th Cir. 1997); In reGrand Jury, 111 F.3d at 1078; United States v. Vest, 813 F.2d 477,484 (1st Cir. 1987).

82. In reGrand Jury, 111 F.3d at 1079.



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the victimof an unlawful interception is entitled to protection in court

proceedings from any attempt by theperpetratorto use the interception

against the victim.84

The Sixth Circuits reading of the legislative intent, however, is at odds

with other circuit courts as well as with the Supreme Court.85The Murdock court focused on the victim-perpetrator relationship in

analyzing the propriety of an unauthorized recording.86 In doing so theSixth Circuit found that when the intercepted communication is being usedby a third party (e.g. the government) instead of by the perpetrator againstthe victim in an effort to derive some benefit (e.g. blackmail), the victim isnot entitled to protection from the statement.87However, this is in directconflict with the legislative intent as interpreted by the Supreme Court:

In order to protect effectively the privacy of wire and oral

communications, to protect the integrity of court and administrative

proceedings, and to prevent the obstruction of interstate commerce, it is

necessary for Congress to define on a uniform basis the circumstances

and conditions under which the interception of wire and oralcommunications may be authorized, to prohibit any unauthorized

interception of such communications, and the use of the contents thereof

in evidence in courts and administrative proceedings.88

The Supreme Courts use of the word any in its interpretation of thelegislation illustrates that had the Supreme Court wished to add limitinglanguage (e.g. government interceptions), it would have done so. Incontrast to the Sixth Circuit, the Crabtree court successfully applied thelegislatures intent by not limiting the scope to the victim-perpetrator

relationship.89Additionally, the Crabtreecourt emphasized the use of theillegal recordings in court proceedings.90This vital point was overlookedby the Murdock court, which chose instead to focus on the victim-

perpetrator relationship. Thus, the reasoning in Murdock is inherently

84. United States v. Murdock,63 F.3d 1391, 1403 (6th Cir. 1995).

85. Compare id., withGelbard v. United States (Gelbard II), 408 U.S. 41, 55 (1972);

Crabtree, 565 F.3d at 891; andVest, 813 F.2d at 480-81.

86. See Murdock, 63 F.3d at 1400-02.

87. Id.at 1401-02.

88. Gelbard II, 408 U.S. at 49 (quoting Omnibus Crime Control and Safe Streets Act

of 1968, Pub. L. No. 90-351, 801(b), 82 Stat. 197, 211 (1968) (emphasis added)).


90. See id. at 890. In order to protect effectively the privacy of wire and oral

communications, to protect the integrity of court and administrative proceedings . . . it is

necessary . . . to prohibitany unauthorized interception of such communications, and the

use of the contents thereof in evidence in courts and administrative proceedings. Id.

(quoting Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351,

801(b), 82 Stat. 197, 211 (1968) (emphasis added)) (internal quotation marks omitted).


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flawed because the court ignored a crucial aspect of the legislative intent.

To support the clean hands exception, the argument was raised in

Murdock that 2515 is meant to act as a safeguard to governmental

violations of privacy.91

In contrast to that intent, when a private individualmakes a recording and the government obtains it by sheer luck, there is nodeterrence against unwarranted privacy invasion by law enforcement.92This argument is not unique to this case; in fact, it was raised by thegovernment in Vest: Specifically, the government argues, the purpose ofsection 2515 is to deter violations of Title IIIs other provisions, and itwould be pointless to apply section 2515 against the government where, ashere, the government is the innocent recipient, rather than the guiltyinterceptor, of an illegally-intercepted communication.93

The First Circuit in Vest dismantled the governments argument byexplaining that this characterization was overly narrow when viewed inlight of the legislative intent.94Additionally, the Vestcourt relied upon the

Supreme Courts reasoning in Gelbard II,

95

that the protection of privacywas the main legislative concern.96Furthermore, the court discussed twodifferent instances of invasions of privacy: one when the communication isintercepted, and the other when the communication is disclosed in a courtproceeding or hearing.97 The court appropriately reasoned that [t]heimpact of this second invasion is not lessened by the circumstance that thedisclosing party . . . is merely the innocent recipient of a communicationillegally intercepted by the guilty interceptor.98

On the issue of deterrence, the Fourth Circuit is in partial agreementwith the Sixth Circuit: [W]hile we agree with the Sixth Circuit thatsuppression of the contents of a private communication would have nodeterrent effect on the government if the government was not involved inthe illegal interception, suppression would nonetheless have a deterrenteffect on the private party intercepting the communication.99 Deterring

illegal wiretapping was a goal of Congress when enacting Title III; theparty conducting the interception, whether it is the government or an

91. Murdock, 63 F.3d at 1402.

92. Id.at 1402-03.

93. United States v. Vest, 813 F.2d 477, 480 (1st Cir. 1987).

94. Id. at 480-81.

95. Gelbard v. United States (Gelbard II), 408 U.S. 41, 49 (1972) (footnote omitted)

(citation omitted).

96. Vest, 813 F.2d at 480-81.

97. Id.at 481 (citing Gelbard II, 408 U.S. at 51-52).

98. Id.



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individual, does not matter.100The governments receipt of evidence thatcan be used against a defendant in court does not reduce the negative effectthe disclosure of the tapes contents would have on an individualsprotected privacy rights.

C. The Fourth Amendment

The Fourth Amendment gives [t]he right of the people to be secure intheir persons, houses, papers, and effects, against unreasonable searches

and seizures.101 As previously discussed, Title III was created to bringwiretapping and electronic surveillance laws into step with theconstitutional principles laid out by the Supreme Court in Berger and

Katz.102 In Crabtree, the Fourth Circuit discussed the difference in scopebetween the Fourth Amendment and Title III.103The court noted that theFourth Amendment applies to government actions taken in searches andseizures, whereas Title III extends the scope to private citizens and bansthem from intercepting communications.104

In an effort to promote a qualified clean hands exception to Title III,expansion of the Fourth Amendments exclusionary rule, to which there isa good faith exception,105 has been encouraged.106 The good faithexception allows evidence obtained by a validly executed warrant to beadmitted, even though the warrant was later found to be invalid.107

Extending a similar exception to Title III necessarily ignores legislativeintent and Supreme Court precedent, which in part rested upon thatintent.108Although the Fourth Amendment does not cover private searches,the legislative intent of Title III supports the idea of extending the scope tocover private searches in addition to those undertaken by the government inorder to promote privacy rights in general.109The provision thus forms an

100. SeeS.REP.NO. 90-1097, at 150 (1968).

101. U.S.CONST. amend. IV.

102. S. REP.NO. 90-1097, at 28 (citing Katz v. United States, 389 U.S. 347 (1967);

Berger v. New York, 388 U.S. 41 (1967)).

103. Crabtree, 565 F.3d at 891.

104. Id.

105. See generally United States v. Leon, 468 U.S. 897 (1984) (allowing evidence

obtained through a defective warrant to be admissible at trial if the executing officer had an

objectively reasonable good faith basis to believe the warrant was valid at the time the

warrant was executed).

106. Shaun T. Olsen, Note, Reading Between the Lines: Why a Qualified "Clean

Hands" Exception Should Preclude Suppression of Wiretap Evidence under Title III of the

Omnibus Crime Control and Safe Streets Act of 1968, 36 VAL. U. L. REV. 719, 743-44

(2002).

107. Leon, 468 U.S. at 906-08.

108. Contra Olsen, supranote 106, at 741.

109. Crabtree, 565 F.3d at 891.


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integral part of the system of limitations designed to protect privacy. Alongwith the criminal and civil remedies, [the Act] should serve to guaranteethat the standards . . . will sharply curtail the unlawful interception of wire

and oral communications.

110

Relying on this legislative intent, the Supreme Court set precedent inGelbard IIby noting that the congressional findings articulate clearly theintent to utilize the evidentiary prohibition of 2515 to enforce thelimitations imposed by Title III upon wiretapping and electronicsurveillance.111 For example, the difference between the good faithexception created in United States v. Leonand a clean hands exception toTitle III, could simply be the entity conducting the search.112However, thescope of Title III is larger than that of the Fourth Amendment: It covers

individuals in addition to the government. Therefore, any attempt to extendthe good faith exception created inLeonto Title III should fail.

This is precisely another example of how Murdock is at odds with the

proper interpretation of Title III in Crabtree because the Fourth Circuitrelied solely on the Fourth Amendment, which does not restrict privateinterceptions.113 [T]he Supreme Court acknowledged that the FourthAmendment protection against unreasonable searches and seizures iswholly inapplicable to a search or seizure, even an unreasonable one,effected by a private individual not acting as an agent of the Government orwith the participation or knowledge of any governmental official.114However, theMurdockcourt neglected to give attention to the language ofTitle III as a whole, which specifically prohibits any person fromintercepting communications.115This rationale was correctly explained in

Crabtree when the court determined that [b]ecause the FourthAmendment and Title III differ greatly in scope and purpose, we believe itwould be inappropriate to treat the judicially created Fourth Amendmentexclusionary rule as impliedly setting the boundary for the broader,statutorily created exclusionary rule of 2515.116

Likewise, the Ninth Circuit noted that [u]nlike Fourth Amendment

110. S.REP.NO. 90-1097, at 96 (1968).

111. Gelbard v. United States (Gelbard II), 408 U.S. 41, 48-49 (1972).

112. Olsen, supranote 106, at 745.

113. Crabtree, 565 F.3d at 891.

114. United States v. Murdock, 63 F.3d 1391, 1403 (6th Cir. 1995) (quoting United

States v. Jacobsen, 466 U.S. 109, 113 (1984)) (internal quotation marks omitted).

115. 18 U.S.C. 2511(1)(a) (2006) (Interception and disclosure of wire, oral, or

electronic communications prohibited . . . [e]xcept as otherwise specifically provided in this

chapter any person who . . . intentionally intercepts, endeavors to intercept, or procures any

other person to intercept or endeavor to intercept, any wire, oral, or electronic

communication.).

116. Crabtree, 565 F.3d at 891.


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limitations on searches, the wiretapping statute applies even to evidenceobtained by entirely private misconduct.117 Chandler v. United StatesArmyis factually similar to Crabtreein that an illegal recording was madeby an individual, the wife of an army Captain, and the recording was then

used in a government proceeding against the defendant.118

The Chandlercourt properly relied on Gelbard II when it explained that Title III goes

further than the Fourth Amendment and prohibits illegal recordings madeby individuals from being used in hearings.119 The same rationale isexemplified in Crabtree: When an illegal recording is made, there aredistinct differences between the actual invasion of privacy and thesubsequent invasion of privacy that takes place when the communicationsare admitted as evidence.120

VI.CONCLUSION

The Crabtree court correctly refused to imply a clean hands exceptionto Title III of the Omnibus Crime Control and Safe Streets Act of 1968. 121

The result is fair when viewed in light of both the language of the statuteand the legislative intent. The plain language contains no writtenexceptions and no qualifying words that would allow an exception to beread into the statute by the judiciary.122 The legislative intent is equallyclear as Congress acted in response to the Supreme Courts decisions in

Berger123and Katz,124intentionally promulgating a law that falls within thebounds set by the Court and errs on the side of protection of an individualsprivacy rights.125

The Crabtree court noted in its concluding paragraph that the districtcourts error in admitting the recordings was not harmless.126Accordingly,on remand the government must prove the multifarious and separatelyalleged parole violations by Daniel Crabtree without the recordings made

117. Chandler v. United States Army, 125 F.3d 1296, 1298 (9th Cir. 1997) (citation

omitted).

118. Id. at 1297.

119. Id. at 1298.

120. Crabtree, 565 F.3d at 890.

121. 18 U.S.C. 2515 (2006); Crabtree, 565 F.3dat 892.

122. 18 U.S.C. 2515.

123. Berger v. New York, 388 U.S. 41, 63 (1967) (holding that N.Y. Code 813 was

unconstitutional under the Fourth Amendment).

124. Katz v. United States, 389 U.S. 347, 359 (1967) (holding that the Fourth

Amendment cannot be ignored without sufficient justification).

125. S. REP.NO. 90-1097, at 10-11 (1968) (noting the goal of the legislature is to

promote privacy protection for individuals).

126. Crabtree, 565 F.3d at 892.


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by Betty Starnes.127The loss of the recording serves as a substantial blowto the governments case. Although Crabtree made various statements thatled to the suspension of his supervised release and his return to jail, the

most serious violations were those on the tape that must now beexcluded.128 The overall effect this decision will have on the number of

criminal prosecutions and convictions is negligible.129 Although somedefendants will be offered favorable plea bargains due to a lack ofevidence, this number is very small and carries virtually no weight whenmeasured against the privacy interests that are of primary concern in 2515.130

The Crabtreecourts two part analysislooking at the literal meaningof the statute and the legislative intentcombined with the application of

the precedent set out by the Supreme Court in Gelbard II,131gives way toonly one sound conclusion: There can be no clean hands exception to 2515.132

127. Id.

128. Id.

129. United States v. Leon, 468 U.S. 897, 907-08 & n.6 (1984).

130. Id.; 18 U.S.C. 2515 (2006).

131. Gelbard v. United States (Gelbard II), 408 U.S. 41 (1972).

132. 18 U.S.C. 2515.

Documents

Hands Off: United States v. Crabtree and the Proper Application of Title III of the Omnibus Crime Control and Safe Streets Act of 1968