*1 373 testimony they agents’ and Katz to what As in On Lee The as struments. both reception conver- was held inadmis- transmitted heard in this manner of the the place entirely external to the sible. was sation spoke. occupied by he when the defendant the In Lee nor Katz was neither On a constitutional I am unable draw to challenged testimony of in corroboration present case and between the distinction testimony person the of to whom the the as I follow Katz this reason Katz. For actually speaking, the sit- defendant was appli- holding Supreme Court the of the Lopez. the The is that uation in result Accordingly I think to this case. cable only arguably factual differ- relevant testimony of the Seibert admission the the Katz ences Lee and were between On a search fruit of error, as it was the was and of the location electronic transmitter in con- not made seizure which were and person Lee to the fact that in On the provisions formity Fourth the the of with govern- spoke the a whom defendant was Amendment. agent in not. ment whereas Katz he was Supreme The held in On that Court Lee
there no sei- was "unlawful search and by proscribed Fourth
zure such as is the
Amendment,” trespass and said “no was 751,
committed.”
at In that ‘‘the 971. Katz the Court held electronically
Government’s activities in
listening
recording
petitioner’s
to
and
the
HANDSFORD,
Appellant,
A. Z.
privacy upon
v.
words violated the
which
America,
of
UNITED STATES
using
justifiably
he
relied
tele-
while
the
Appellee.
phone
a
booth
thus
and
constituted
meaning
‘search and seizure’ within the
No. 24311.
of the Fourth
As
the
Amendment.”
to
Appeals
Court of
States
United
trespass
absence of a
in Katz
Court
the
Circuit.
Fifth
stated,
expressly
“we have
held that
the
1,
*
**
1968.
Feb.
Fourth Amendment
as
extends
recording
statements,
12,1968.
Rehearing
well to the
of oral
Denied March
any
trespass
overheard without
‘technical
May 20, 1968.
Certiorari Denied
*
**
property,
under
local
Sil-
law.’
88
See
S.Ct. 1810.
States,
505,
verman v. United
365 U.S.
611,
679,
81 S.Ct.
the fruit of an intrusion a conver- by
sation by an uninvited means of ear
electronic The devices. in conversations private.
both cases were otherwise In place
our case the took in a conversation
private apartment. Appellant’s words only by
were intended heard in- to be the
former, the as of in words defendant by
Katz only were intended to heard be person receiving
the at the end of the
telephone.2 Seibert could not heard have
the except conversation for his intrusion through
from outside the electronic in- listening States, 107, 2. Not is involved a S.Ct. in on an exten- U.S. 78 355 United 161, telephone 2 134. sion of L.Ed.2d line. See Rathbun v. *2 374
through the use of an electronic trans- body mitter concealed on the of an undercover informer. The facts show that the undercover agent, McCullough, Appellant’s went to buy illegal whiskey
house to while other agents remained hidden the outside watching listening house the events and to the conversation over an electronic planted McCullough’s transmitter on body. McCullough’s testimony concern- ing whiskey by the of sale the Hands- surrounding ford and the conversation fully by that sale was the corroborated agents (but three who had listened to not recorded) Appellant the conversation. testimony agents, contends that the of the was in the introduced violation Fourth of it Amendment as constituted an unrea- sonable search and seizure. objects Appellant To the extent that to testimony McCullough,
the of the in- former, concerning conversations be- Appellant tween himself and which took place in to Handsford’s home which and Cairo, Carlisle, Ga., Edwin A. A. J. McCullough human, was a an not elec- Whitehurst, Ga., Thomasville, appel- for tronic, listener, by case this controlled is lant. States, 1966, Lewis v. United 385 U.S. Jr., Johnson, P. U. Walker S. Asst. 206, 424, 87 312. In S.Ct. 17 L.Ed.2d Ga., Atty., Macon, Floyd Buford, M. that the held when ease Court that a Atty., Macon, Ga., appellee. U. for S. home is converted into a commercial cen- ter are in outsiders to invited where BROWN, Judge, Before Chief and business, transact it its loses broad DYER, Judges. FAHY* and Circuit range protections. of constitutional As ment. The counts under which possessing lant without fixed below Appellant CURIAM: PER was thereto, on having the two counts of a found and was convicted in violation guilty charged selling proper six-count distilled of 26 tax in the Court stamp him with U.S.C.A. spirits Appel- indict- af- opinion to the electronic opportunity United “listeners,” 370 Affirmed. [1968] corroboration States, rendered transmitting and the cases cited this it afforded 5 case falls before our this Cir., 1968, coming day device for additional in from 390 Dancy and the therein. F.2d the v. 5205(a) 5604(a). (2), The sole issue § Judge FAHY, (dissenting): Circuit presented here is whether the conviction I to reverse for similar be of the admis- would must reversed because reasons Dancy testimony my in in v. dissent into of of those stated sion evidence the States, 370, agents 390 F.2d decided this United testified to conversa- federal who day. by of them tions the defendant overheard * by designation. Circuit, sitting Judge of Senior Circuit the District of Columbia