Hands Off: United States v.

Crabtree and the Proper Application of Title III of 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 oral communications as evidence in trials or hearings.1 Congresss goal in enacting Title III was to protect the privacy of communications and describe proper situations for authorized interception of wire and oral communications.2 Recently, in United States v. Crabtree, the Fourth Circuit Court of Appeals decided whether a clean hands exception exists to Title III that would admit evidence in the form of intercepted communications if the government had no part in obtaining those communications.3 The Crabtree court held that there was no clean hands exception and excluded evidence presented by the government.4 The opposite view has been taken by the Sixth Circuit Court of Appeals, which has admitted evidence in criminal cases of intercepted communications as long as there is no government involvement.5 In Crabtree the government obtained a recording made by Betty Starnes, the girlfriend of the defendant, Daniel Crabtree.6 In the recording, Crabtree stated that he was going to burn down Starness house and car.7 Crabtree had been paroled from prison on supervised release when Starnes gave the recording to his parole officer, who subsequently began proceedings to

1. 2. 3. 4. 5. 6. 7.

Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. 2515 (2006). S. REP. NO. 90-1097, at 66 (1968). United States v. Crabtree, 565 F.3d 887, 889 (4th Cir. 2009). Id. at 888, 892. United States v. Murdock, 63 F.3d 1391, 1404 (6th Cir. 1995). Crabtree, 565 F.3d at 887-88. Id. at 888.

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revoke his parole.8 The district court admitted the tapes into evidence ultimately leading to the revocation of Crabtrees parole and a twenty-four month prison sentence, to be followed by three additional years of supervised release.9 This Comment will argue that the Fourth Circuit correctly refused to infer a clean hands exception to 2515 by taking into account the literal text of the statute and the intent of the legislators in drafting the Omnibus Crime Control and Safe Streets Act of 1968.10 The result may impose hurdles for the government in prosecuting accused persons, but it is clear that privacy rights of citizens were a major concern of Congress in enacting Title III and that any reduction in the rate of convictions will be insignificant.11 Part II briefly examines the history of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Part III discusses the courts opinion in Crabtree in order to put the analysis into context. Part IV looks at the language of the statute and its application by the Fourth Circuit in Crabtree. Part V examines how legislative intent bolsters the courts decision in Crabtree. Part VI explains why the Fourth Circuits holding is correct and should be applied over that of the Sixth Circuit, and concludes that privacy rights trump the governments need to utilize intercepted communications to secure convictions. II. HISTORY OF TITLE III OF THE OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968 The legislation that became the Omnibus Crime Control and Safe Streets Act of 1968 was introduced to assist State and local governments in reducing the incidence of crime, to increase the effectiveness, fairness, and coordination of law enforcement and criminal justice systems at all levels of government.12 In addition, Title III was specifically added after two Supreme Court cases, Berger v. New York13 and Katz v. United States,14 set the constitutional standards for wiretapping and electronic surveillance.15 In Berger, the Supreme Court held that a New York State law permitting eavesdropping was too broad in its scope and ran afoul of the Fourth Amendment.16 The District Attorney had obtained an order to wiretap the
8. 9. 10. 11. 12. 13. 14. 15. 16.

Id. Id. See generally 18 U.S.C. 2510-2522 (2006). See S. REP. NO. 90-1097, at 66 (1968). Id. at 1. 388 U.S. 41 (1967). 389 U.S. 347 (1967). S. REP. NO. 90-1097, at 27-28. 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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office of an attorney who was accepting bribes on behalf of members of the New York State Liquor Authority for issuing new liquor licenses.17 Justice Clarks majority opinion noted that the New York law, as written, did not include a particular requirement, as found in the Fourth Amendment, that a warrant include with particularity the place to be searched, and the persons or things to be seized; the statute only required reasonable ground to believe that evidence of crime may be obtained by the eavesdrop.18 The United States Constitution does not ban eavesdropping, but there are certain requirements that must be met before a warrant can be issued in order to maintain the level of privacy that is of central concern to the Fourth Amendment.19 Although Berger involved New Yorks wiretapping law20 and Katz concerned federal wiretapping practices,21 the Court arrived at the same outcome in both decisions.22 The law enforcement officers in Katz recorded the defendant while he spoke on a public telephone.23 The government believed it was permitted to do so because there was no physical penetration into the phone booth since the recording device was placed on the outside of the booth.24 Six months after Berger was decided,25 Justice Stewart 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 searches and seizures.26 In addition to the Supreme Courts requirement for constitutional protections, many law enforcement and legal organizations supported the legislation.27 Thus, the Supreme Court firmly laid out the principle 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 be seized. 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 two cases in creating Title III.29 III. A SUMMARY OF UNITED STATES V. CRABTREE A. Facts of Crabtree Crabtree involved a recording made by the girlfriend of the defendant, Daniel Crabtree, which subsequently was given to his parole officer in order to revoke his supervised release.30 The recordings that were used in the proceedings against Crabtree were not the sole reason the hearing was initiated; in fact, there were a total of thirteen alleged violations of his parole.31 However, the most serious allegations were the arson threats Crabtree made against Betty Starnes, which were the subject matter of the recordings.32 The defense objected to the admission of the tapes into evidence, but the district court overruled the objection.33 In doing so, the district court specifically noted the lack of involvement by the government in creating the recordings and read a clean hands exception into Title III.34 The court found Crabtree guilty of the violations of his supervised release, and he was sentenced to twenty-four months in prison as well as to three additional years of supervised release following his prison term.35 Crabtree appealed to the Fourth Circuit, arguing that the lower court erred in applying precedent relating to statutory construction and in creating a clean 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 2515 prohibits 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. 29.

See Katz, 389 U.S. at 358-59; Berger v. New York, 388 U.S. 41, 43-44 (1967). S. REP. NO. 90-1097, at 75-76 (citing Katz, 389 U.S. at 358-59; Berger, 388 U.S.

at 44). 30. United States v. Crabtree, 565 F.3d 887, 888 (4th Cir. 2009). 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 district court used to admit the recordings into evidence.38 To bolster the argument for 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.39 Thus, in relying on the literal meaning of the statute and the public policy argument, the court concluded there were no circumstances supporting such an exception.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 to fewer criminal convictions by the government.42 The Fourth Circuits opinion noted there could be a potential drop in convictions, but nevertheless 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 discuss the two approaches the court used in reaching its decision: first, that it applied the plain meaning of the statute; and second that the decision was in accordance with the intent of the legislature. It will conclude that the application of the law in Crabtree was proper and will not result in a negative effect on law enforcement or the conviction rate of criminals. IV. THE UNAMBIGUOUS LANGUAGE OF 18 U.S.C. 2515 A. The Plain Meaning of the Statute The Fourth Circuit looked first to the language of 18 U.S.C. 2515, the statute under which Crabtree objected to the recordings being admitted against him:
Whenever any wire 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. 39. 40. 41. 42. 43.

Id. at 889. S. REP. NO. 90-1097, at 11 (1968). Crabtree, 565 F.3d at 889. Id. at 892. Id. at 890-91. Id. at 890.

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

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In doing so, the court applied a standard that has been repeated many times by 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.45 In what might appear to be an overly simplistic statement, the Crabtree court stated: In our view, the issue is resolved by the language of 2515 itself.46 Reading the literal language of the statute makes it abundantly clear that there is no written exception in the statute for communications that are intercepted by parties other than law enforcement or other governmental organizations. The court directly states, we simply see no gaps or shadows in the language that might leave lurking a clean-hands exception.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 the defendants were found in contempt after refusing to testify in a grand jury proceeding.49 The defendants, Gelbard and Parnas, objected to testifying because the interrogation would center on recorded statements that were intercepted by federal law enforcement agents who had a warrant to conduct surveillance on several other menbut not the defendants themselves.50 Before the Supreme Court weighed in, the Third51 and Ninth52 Circuits had been split on whether to allow the recordings from such situations into evidence.53 The Third Circuit held that 2515 could be invoked to exclude illegally gathered evidence from contempt proceedings, which took place after a grand jury witness refused to answer questions related to statements recorded by illegal government wiretaps.54 The contrary position was taken by the Ninth Circuit, holding that 2515 cannot be invoked to exclude evidence from contempt proceedings55 because [a] witness before a grand jury lacks standing to challenge a statute on constitutional grounds unless the statute directly bears upon his

44. 45.

18 U.S.C. 2515 (2006) (emphasis added). See, e.g., Conn. Natl Bank v. Germain, 503 U.S. 249, 253-54 (1992) (citations

omitted). 46. Crabtree, 565 F.3d at 889. 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.56 Following this ruling by the Ninth Circuit, the Supreme Court addressed the specific issue of the application of 2515 in grand jury proceedings.57 The Supreme Court looked at the plain language of 2515 and determined that [t]he unequivocal language of 2515 expresses the fundamental policy adopted by Congress on the subject of wiretapping and electronic surveillance. As the congressional findings for Title III make plain, that policy is strictly to limit the employment of those techniques of acquiring information.58 Thus, it is clear that when the Crabtree court read the statute, applied the plain meaning, and denied any clean hands exception, it was merely applying the well-established precedent laid out in Gelbard II more than three decades ago.59 The adherence to precedent was the first of two steps properly taken by the Crabtree court in holding that there 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 clean hands exception to 2515.61 United States v. Murdock was decided in 1995 and involved recordings made by the defendants wife during their contentious divorce.62 The recordings included a conversation in which Mr. Murdock accepted a bribe through his role as president of the Detroit School Board to award a milk contract to a local dairy farm.63 The tapes were first sent to the dairy farm that lost the milk contract, which were subsequently submitted to the Wayne County prosecutor, and later, federal agents 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 the recording and that it simply got a lucky break.65 The Sixth Circuit referenced United States v. Vest,66 a First Circuit decision, and

Id. (citing Carter v. United States, 417 F.2d 384, 386-87 (9th Cir. 1969)). Gelbard II, 408 U.S. at 42-43. Id. at 47. 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

56. 57. 58. 59.

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distinguished it on the ground that it too broadly interpreted Gelbard II.67 The court held that the purpose of enacting Title III was to prevent victimization in the form of invasion of privacy.68 The Murdock court notes, [i]n Gelbard, the witness was asserting that the government itself had engaged in illegal wiretapping and electronic surveillance.69 This led the court to reason that the First Circuit read Gelbard [II] as standing for the proposition that any and all illegally intercepted evidence must be suppressed in order to protect the victims privacy.70 The broad interpretation by the First Circuit conflicts with the analysis in Murdock which itself strays from the precedent set out in Gelbard II that the language in 2515 is clear.71 The deviation creates an unwarranted clean hands exception that is not authorized by the text of the statute. V. ALTERNATIVE MEANS TO AVOIDING A CLEAN HANDS EXCEPTION A. The Integration of Legislative Intent of 18 U.S.C. 2515 into Judicial Reasoning The Crabtree opinion does not end with a simple reading of the text of the statute and a decision that there is insufficient justification for a clean hands exception.72 The court continues its analysis in line with the principle that [i]f a literal reading of the statute produces an outcome that is demonstrably at odds with clearly expressed congressional intent to the contrary, the court can look beyond the language of the statute.73 In fact, the Supreme Court in Gelbard II looked at the legislative intent of Title III and stated that although Title III authorizes invasions of individual privacy under certain circumstances, the protection of privacy was an overriding congressional concern.74 Indeed, the legislative history notes this concern explicitly by stating that a suppression rule is necessary and proper to protect privacy.75 The protection of privacy in this context means not only protection from the act of wiretapping (whether being conducted by the government or an individual), but also protection from the 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. 72. United States v. Crabtree, 565 F.3d 887, 889 (4th Cir. 2009). 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, it was noted that [v]irtually [everyone] concede[s] that the use of wiretapping or electronic surveillance techniques by private unauthorized hands has little justification where communications are intercepted without the consent of one of the participants.77 The Fourth Circuit correctly applied this legislative intent in Crabtree by reversing the lower courts decision to admit into evidence the privately recorded tapes. This was the second of two steps taken by the court to conclude there is no clean hands exception to 2515.78 Furthermore, the Fourth Circuits application of legislative intent falls neatly in-line with other circuits. The legislative intent of 2515 has been applied in the Third Circuit to further emphasize the importance of maintaining privacy protections with regard to all illegally intercepted communications.79 In denying the government a clean hands exception, the Third Circuit pointed out that it would not make sense for Congress to allow evidence of intercepted communications to come in simply because the government did not participate in their interception; the communications were illegally obtained regardless of the interceptor.80 This interpretation results in the majority of circuit courts that have heard the issue deferring to the legislative intent, and thus refusing to imply a clean hands exception.81 The Third Circuit succinctly stated, [w]e have no authority to restrike the balance that Congress has already struck by placing in the statute a clean hands exception that Congress did not.82 B. United States v. Murdock Revisited In order to rationalize the clean hands exception, the Sixth Circuit in Murdock read the legislative intent very narrowly.83 In that regard, the Sixth 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

Crabtree, 565 F.3d at 890. S. REP. NO. 90-1097, at 69 (1968). Crabtree, 565 F.3d at 892. In re Grand Jury, 111 F.3d 1066, 1076 (3d Cir. 1997). Id. at 1078. Crabtree, 565 F.3d at 892; Chandler v. United States Army, 125 F.3d 1296, 1302 (9th Cir. 1997); In re Grand Jury, 111 F.3d at 1078; United States v. Vest, 813 F.2d 477, 484 (1st Cir. 1987). 82. In re Grand Jury, 111 F.3d at 1079. 83. Crabtree, 565 F.3d at 891.

76. 77. 78. 79. 80. 81.

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the victim of an unlawful interception is entitled to protection in court proceedings from any attempt by the perpetrator to 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.85 The Murdock court focused on the victim-perpetrator relationship in analyzing the propriety of an unauthorized recording.86 In doing so the Sixth Circuit found that when the intercepted communication is being used by a third party (e.g. the government) instead of by the perpetrator against the victim in an effort to derive some benefit (e.g. blackmail), the victim is not entitled to protection from the statement.87 However, this is in direct conflict 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 oral communications 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 the legislation illustrates that had the Supreme Court wished to add limiting language (e.g. government interceptions), it would have done so. In contrast to the Sixth Circuit, the Crabtree court successfully applied the legislatures intent by not limiting the scope to the victim-perpetrator relationship.89 Additionally, the Crabtree court emphasized the use of the illegal recordings in court proceedings.90 This vital point was overlooked by the Murdock court, which chose instead to focus on the victimperpetrator relationship. Thus, the reasoning in Murdock is inherently

United States v. Murdock, 63 F.3d 1391, 1403 (6th Cir. 1995). Compare id., with Gelbard v. United States (Gelbard II), 408 U.S. 41, 55 (1972); Crabtree, 565 F.3d at 891; and Vest, 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)). 89. Crabtree, 565 F.3d at 891. 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 prohibit any 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).

84. 85.

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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 individual makes a recording and the government obtains it by sheer luck, there is no deterrence against unwarranted privacy invasion by law enforcement.92 This argument is not unique to this case; in fact, it was raised by the government in Vest: Specifically, the government argues, the purpose of section 2515 is to deter violations of Title IIIs other provisions, and it would be pointless to apply section 2515 against the government where, as here, the government is the innocent recipient, rather than the guilty interceptor, of an illegally-intercepted communication.93 The First Circuit in Vest dismantled the governments argument by explaining that this characterization was overly narrow when viewed in light of the legislative intent.94 Additionally, the Vest court relied upon the Supreme Courts reasoning in Gelbard II,95 that the protection of privacy was the main legislative concern.96 Furthermore, the court discussed two different instances of invasions of privacy: one when the communication is intercepted, and the other when the communication is disclosed in a court proceeding or hearing.97 The court appropriately reasoned that [t]he impact of this second invasion is not lessened by the circumstance that the disclosing party . . . is merely the innocent recipient of a communication illegally intercepted by the guilty interceptor.98 On the issue of deterrence, the Fourth Circuit is in partial agreement with the Sixth Circuit: [W]hile we agree with the Sixth Circuit that suppression of the contents of a private communication would have no deterrent effect on the government if the government was not involved in the illegal interception, suppression would nonetheless have a deterrent effect on the private party intercepting the communication.99 Deterring illegal wiretapping was a goal of Congress when enacting Title III; the party conducting the interception, whether it is the government or an

Murdock, 63 F.3d at 1402. Id. at 1402-03. United States v. Vest, 813 F.2d 477, 480 (1st Cir. 1987). Id. at 480-81. 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. 99. United States v. Crabtree, 565 F.3d 887, 891 (4th Cir. 2009).

91. 92. 93. 94. 95.

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individual, does not matter.100 The governments receipt of evidence that can be used against a defendant in court does not reduce the negative effect the disclosure of the tapes contents would have on an individuals protected privacy rights. C. The Fourth Amendment The Fourth Amendment gives [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.101 As previously discussed, Title III was created to bring wiretapping and electronic surveillance laws into step with the constitutional principles laid out by the Supreme Court in Berger and Katz.102 In Crabtree, the Fourth Circuit discussed the difference in scope between the Fourth Amendment and Title III.103 The court noted that the Fourth Amendment applies to government actions taken in searches and seizures, whereas Title III extends the scope to private citizens and bans them 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 is a good faith exception,105 has been encouraged.106 The good faith exception allows evidence obtained by a validly executed warrant to be admitted, even though the warrant was later found to be invalid.107 Extending a similar exception to Title III necessarily ignores legislative intent and Supreme Court precedent, which in part rested upon that intent.108 Although the Fourth Amendment does not cover private searches, the legislative intent of Title III supports the idea of extending the scope to cover private searches in addition to those undertaken by the government in order to promote privacy rights in general.109 The provision thus forms an
See S. REP. NO. 90-1097, at 150 (1968). U.S. CONST. amend. IV. 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, supra note 106, at 741. 109. Crabtree, 565 F.3d at 891.
100. 101. 102.

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integral part of the system of limitations designed to protect privacy. Along with the criminal and civil remedies, [the Act] should serve to guarantee that the standards . . . will sharply curtail the unlawful interception of wire and oral communications.110 Relying on this legislative intent, the Supreme Court set precedent in Gelbard II by noting that the congressional findings articulate clearly the intent to utilize the evidentiary prohibition of 2515 to enforce the limitations imposed by Title III upon wiretapping and electronic surveillance.111 For example, the difference between the good faith exception created in United States v. Leon and a clean hands exception to Title III, could simply be the entity conducting the search.112 However, the scope of Title III is larger than that of the Fourth Amendment: It covers individuals in addition to the government. Therefore, any attempt to extend the good faith exception created in Leon to 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 Circuit relied solely on the Fourth Amendment, which does not restrict private interceptions.113 [T]he Supreme Court acknowledged that the Fourth Amendment protection against unreasonable searches and seizures is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.114 However, the Murdock court neglected to give attention to the language of Title III as a whole, which specifically prohibits any person from intercepting communications.115 This rationale was correctly explained in Crabtree when the court determined that [b]ecause the Fourth Amendment and Title III differ greatly in scope and purpose, we believe it would be inappropriate to treat the judicially created Fourth Amendment exclusionary 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
S. REP. NO. 90-1097, at 96 (1968). Gelbard v. United States (Gelbard II), 408 U.S. 41, 48-49 (1972). Olsen, supra note 106, at 745. Crabtree, 565 F.3d at 891. 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.
110. 111. 112. 113. 114.

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limitations on searches, the wiretapping statute applies even to evidence obtained by entirely private misconduct.117 Chandler v. United States Army is factually similar to Crabtree in that an illegal recording was made by an individual, the wife of an army Captain, and the recording was then used in a government proceeding against the defendant.118 The Chandler court properly relied on Gelbard II when it explained that Title III goes further than the Fourth Amendment and prohibits illegal recordings made by individuals from being used in hearings.119 The same rationale is exemplified in Crabtree: When an illegal recording is made, there are distinct differences between the actual invasion of privacy and the subsequent invasion of privacy that takes place when the communications are admitted as evidence.120 VI. CONCLUSION The Crabtree court correctly refused to imply a clean hands exception to 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 statute and the legislative intent. The plain language contains no written exceptions and no qualifying words that would allow an exception to be read into the statute by the judiciary.122 The legislative intent is equally clear as Congress acted in response to the Supreme Courts decisions in Berger123 and Katz,124 intentionally promulgating a law that falls within the bounds set by the Court and errs on the side of protection of an individuals privacy rights.125 The Crabtree court noted in its concluding paragraph that the district courts error in admitting the recordings was not harmless.126 Accordingly, on remand the government must prove the multifarious and separately alleged 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.3d at 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.127 The loss of the recording serves as a substantial blow to the governments case. Although Crabtree made various statements that led to the suspension of his supervised release and his return to jail, the most serious violations were those on the tape that must now be excluded.128 The overall effect this decision will have on the number of criminal prosecutions and convictions is negligible.129 Although some defendants will be offered favorable plea bargains due to a lack of evidence, this number is very small and carries virtually no weight when measured against the privacy interests that are of primary concern in 2515.130 The Crabtree courts two part analysislooking at the literal meaning of the statute and the legislative intentcombined with the application of the precedent set out by the Supreme Court in Gelbard II,131 gives way to only one sound conclusion: There can be no clean hands exception to 2515.132

127. 128. 129. 130. 131. 132.

Id. Id. United States v. Leon, 468 U.S. 897, 907-08 & n.6 (1984). Id.; 18 U.S.C. 2515 (2006). Gelbard v. United States (Gelbard II), 408 U.S. 41 (1972). 18 U.S.C. 2515.