United States of America, Appellant, v. Alfredo Franco Padilla, Appellee, 520 F.2d 526 (1st Cir. 1975)

This is an appeal by the government from the suppression of taped conversations held between the defendant and two Special Agents of the Drug Enforcement Administration (DEA). The facts have been stipulated by the parties. The DEA rented two rooms at the Caribe Hilton Hotel in San Juan in anticipation of the arrivals of Special Agent Gilberto Nazario and the defendant. These rooms were rented under the name of Gilberto Nazario, one to be used solely as the temporary residence of the defendant while he stayed in San Juan. Before the defendant had arrived in San Juan, the agents of DEA installed a hidden microphone in his room and set up a receiving unit in the room next door, without the knowledge or consent of the defendant. In the late evening and early morning hours after the defendant checked in, he had conversations in his hotel room with several agents. These conversations were allegedly negotiations of purchases of marihuana and cocaine;¹  they were recorded by other agents in the neighboring room. It is alleged by the government that only conversations that took place between special agents and the defendant were recorded.

There was, concededly, no authorization sought or obtained under 18 U.S.C. §§ 2516 and 2518 for the interception of wire or oral communications. The government would have us overlook the fact that a microphone was installed in the hotel room without prior authority and consider the case as if the agent carried a recording device on him, thus bringing it within the authority of United States v. White, 401 U.S. 745, 91 S. Ct. 1122, 28 L. Ed. 2d 453 (1971). It assures us that only conversations between the agent and defendant were recorded.

We do not read either White or its predecessors, Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), and Hoffa v. United States, 385 U.S. 293, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966), to go farther than to say that a person has no justifiable expectation that one with whom he converses will not tell the authorities of the conversation, and that accurate recordings of the conversation are therefore permissible.²  The built-in limitation on the frustration of such a person's actual expectation of privacy is that no more can be recorded than is given to one who is, mistakenly or not, trusted. When one's confidante leaves his premises, he is left with an expectation of privacy in his surroundings which is not only actual but justifiable, Katz, supra.

The government's position would turn on its head the carefully tailored exception to the Katz protection afforded one's expectation of privacy. See Note, Electronic Eavesdropping and the Right to Privacy, 52 B.U. L. Rev. 831 (1972). Electronic devices could be installed for lengthy periods of time without antecedent authority, so long as only a suspect's conversations with police agents were offered in evidence and the enforcement officials alleged that nothing else was recorded. Under this approach a room or an entire hotel could be bugged permanently with impunity and with the hope that some usable conversations with agents would occur.

No case has been presented to us which would allow the government to engage in unlawful electronic surveillance and profit from the fruits of that surveillance on the ground that had a different means been employed, the recordings would have been admissible. We reject the invitation so to extend the holding of White.

Affirmed.