IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 91-5077

_____________________

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

DAVID LEE SMITH,

 Defendant-Appellant.

______________________

Appeal from the United States District Court

for the Eastern District of Texas

______________________

(November 12, 1992)

Before POLITZ, Chief Judge, and JOHNSON and JOLLY, Circuit

Judges.

JOHNSON, Circuit Judge:

David Lee Smith was convicted by a jury on five counts

arising out of his drug trafficking activities. Smith raises two

issues on appeal. First, he contends that all of the evidence

against him was discovered as a direct result of the interception

of his conversations over a cordless telephone. Smith argues

that the interception of his conversations violated both Title

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

(Title III), 18 U.S.C. §§ 2510-2521, and the Fourth Amendment. 

Second, Smith argues that the evidence was insufficient to

sustain his conviction on the charge that he used and carried a

firearm during and in relation to a drug trafficking crime. This

Court disagrees with all of Smith's arguments and affirms his

conviction on all counts. 
 

1 A Bearcat scanner is a type of radio receiver which

allows the user to monitor a number of radio frequencies. The

scanner sequentially monitors all programmed frequencies. When a

conversation on one of these frequencies is picked up, the

scanner locks in on that frequency to allow the user to listen

in. Bearcat scanners, along with similar scanners made by

competitors, are commercially available at most radio and

electronics stores.

2

I. FACTS AND PROCEDURAL HISTORY

David Lee Smith and Michael Varing were next-door neighbors. 

Varing had reason to believe that Smith was involved in some

recent break-ins at Varing's house. Varing had witnessed Smith

using a cordless telephone, and one of Varing's co-workers

suggested that Varing eavesdrop on Smith's calls using a Bearcat

scanner.1 Varing did not overhear anything connecting Smith to

the recent burglaries, instead he discovered that his neighbor

was a drug dealer. 

Varing contacted a friend in the Port Arthur police

department and told him that Smith was trafficking in cocaine. 

Varing was "instructed" by the Port Arthur police to tape record

Smith's calls, and the police provided Varing with some blank

cassette tapes. On one occasion, members of the Port Arthur

police department were present and assisted in intercepting and

recording Smith's phone calls. The intercepted calls and the

tape recordings made by Varing eventually led to the arrest of

Smith and four other defendants on drug-trafficking charges.

Immediately after his arrest, Smith signed a consent form

authorizing officers to search his residence. The search
3

uncovered crack cocaine, drug paraphernalia, customer lists, and

a loaded .38 calibre revolver. 

Smith was convicted of one count of conspiracy to distribute

cocaine, one count of using or carrying a firearm during or in

relation to a drug trafficking crime, and three counts of using a

telephone to cause or facilitate a drug felony. Smith appeals

his conviction on all counts by raising two arguments. First,

Smith argues that the interception of his cordless telephone

conversations violated both Title III and the Fourth Amendment. 

Therefore, Smith contends that all evidence discovered as a

result of these intercepted conversations should have been

excluded by the trial court. Second, Smith argues that the

evidence was insufficient to sustain his conviction on the

firearms charge. Because Smith's second argument can be disposed

of so easily, we will examine these issues in reverse order.

II. DISCUSSION

A. The Firearms Charge

Smith contends that the evidence was insufficient to sustain

his conviction on the charge that he used and carried a firearm

during and in relation to a drug trafficking crime. When

evaluating the sufficiency of evidence on appeal, this Court

considers the evidence in the light most favorable to the

verdict. Glasser v. United States, 315 U.S. 60, 80 (1942). The

standard is whether, given the evidence presented at trial, any

rational trier of fact could have found the defendant guilty
4

beyond a reasonable doubt. United States v. Ivy, 929 F.2d 147

(5th Cir. 1991), cert. denied, 112 S.Ct. 234 (1991).

The jury found Smith was guilty of violating 18 U.S.C. 

§ 924(c)(1). This code section provides in pertinent part that 

[w]hoever, during and in relation to any crime of violence

or drug trafficking crime . . . , uses or carries a firearm,

shall, in addition to the punishment provided for such crime

of violence or drug trafficking crime, be sentenced to

imprisonment for five years . . . . 

Smith argues that there was no evidence that he ever used or

carried the handgun discovered at his residence. Such proof,

however, is not required by § 924(c)(1). This Court has held

that possession of a gun is sufficient to satisfy the statute's

"use" requirement if possession is an integral part of the

felony. United States v. Robinson, 857 F.2d 1006, 1010 (5th Cir.

1988). In Robinson, where several loaded guns were found in the

defendant's residence along with money, drugs, and drug

paraphernalia, this Court held that there was sufficient evidence

for the jury to conclude that the guns were an integral part of

the drug trafficking because they safeguarded the defendant's

operation. Id. Smith's case is indistinguishable. Just as in

Robinson, the police search of Smith's residence discovered crack

cocaine, a large amount of cash, and various drug paraphernalia,

in addition to the loaded handgun. 

From these facts, a jury could have reasonably concluded

that the gun was used to safeguard and facilitate Smith's drug
5

transactions. Thus, the evidence was sufficient to sustain

Smith's conviction on the firearms charge.

B. Smith's Cordless Telephone Conversations

Finding no error in Smith's firearms conviction, we now turn

to the more difficult question: whether all of the evidence

against him must be excluded because it was a direct result of

the warrantless interception of Smith's conversations over a

cordless telephone. 

1. Title III

Smith first argues that, under Title III, his conversations

over the cordless phone were inadmissible as evidence and that,

as such, the trial judge should have suppressed the tapes and all

of the evidence gained by using the tapes. The argument that

Title III applies to cordless phone communications has been

uniformly rejected by every court that has considered it. See,

e.g., Tyler v. Berodt, 877 F.2d 705 (8th Cir. 1989); State v.

Howard, 679 P.2d 197 (Kan. 1984); State v. Delaurier, 488 A.2d

688 (R.I. 1985); State v. Smith, 438 N.W.2d 571 (Wis. 1989). 

This Court sees no reason to buck that trend. 

Title III essentially prohibits the nonconsensual

interception of "wire," "oral," and "electronic" communication

without prior judicial approval. See 18 U.S.C. § 2516-2518. The

statute prohibits an individual from willfully intercepting or

attempting to intercept wire, oral, or electronic communications
 

2 According to Title III, the term "wire communication" is

defined as 

any aural transfer made in whole or in part through the use

of facilities for the transmission of communications by the

aid of wire, cable, or other like connection between the

point of origin and the point of reception . . . furnished

or operated by any person engaged as a common carrier in

providing or operating such facilities for the transmission

of interstate or foreign communications . . . , but such

term does not include the radio portion of a cordless

telephone communication that is transmitted between the

cordless telephone handset and the base unit[.]

18 U.S.C. § 2510(1).

 

3 The term "oral communication" is defined as "any oral

communication uttered by a person exhibiting an expectation that

such communication is not subject to interception under

circumstances justifying such expectation." 18 U.S.C. § 2510(2).

 

4 The term "electronic communication" is defined as "any

transfer of signs, signals, writing, images, sounds, data, or

intelligence of any nature transmitted in whole or in part by

wire, radio, electromagnetic, photoelectronic or photooptical

system." The term "does not include . . . the radio portion of a

cordless telephone communication that is transmitted between the

cordless telephone handset and the base unit." 18 U.S.C. §

2510(12). 

6

and from willfully disclosing or using the contents of such

communications obtained in violation of Title III. 18 U.S.C. §

2511(1). Violators are subject to criminal prosecution and may

even be liable for monetary damages to the party whose

communications were intercepted. 18 U.S.C. §§ 2511(1)(b), 2520.

More important for our purposes, Title III includes an

exclusionary rule; illegally intercepted communications may not

be introduced as evidence in any trial or hearing. 18 U.S.C. §

2515. Of course, this exclusionary rule only applies to

communication that is "wire,"2 "oral,"3 or "electronic"4 as

defined in the statute. Although Title III expressly excludes

cordless telephone transmissions from the definitions of "wire"
 

5 The Bearcat scanner did not actually intercept the sound

of Smith's voice. Instead, the cordless phone reduced the sound

of Smith's voice to radio waves. These radio waves were picked

up by the scanner. The scanner then reconstructed the sound

waves of the conversation.

 

6 Title III was amended by the Electronic Communications

Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848. Among

other things, this Act amended the definitions of "wire" and

"oral" communications and extended Title III protection to

"electronic communications."

7

and "electronic" communication, Smith argues that his

conversations are nonetheless entitled to Title III protection

because they fit within the definition of "oral communications."

Such an interpretation is out of step with both the plain

language of Title III and with its legislative history.

 By its own terms, Title III limits the definition of oral

communication to "any oral communication uttered by a person." 

18 U.S.C. § 2510(2). In this case, it was not Smith's actual

utterances that were overheard and recorded by the Varings; it

was a radio signal produced by Smith's cordless phone that was

intercepted, and it was a reconstruction5 of the conversation

produced by the Bearcat scanner that was tape recorded. Thus, by

the plain terms of the statute, Smith's cordless telephone

conversations do not fit within the terms of "oral

communication."

Lest one think this interpretation is too restrictive, we

note that it is fully supported by the legislative history of the

1986 amendments to Title III.6 The Senate Report on the 1986

amendments explained that "[i]n essence, an oral communication is

one carried by sound waves, not by an electronic medium." S.
 

7 Smith argued before the trial court that if Congress

really intended to exclude cordless telephone communications from

the definition of oral communications they could have done so

expressly--as they did for wire and electronic communications. 

Although he does not press this argument before this Court, we

note that his argument ignores the fact that every judicial

decision dealing with the issue under the pre-1986 version of

Title III had concluded that cordless telephone communications

were already excluded from the definition of oral communication. 

See, e.g., State v. Howard, 679 P.2d 197 (Kan. 1984); State v.

Delaurier, 488 A.2d 688 (R.I. 1985). Since Congress left the

definition of oral communication unchanged, it can be assumed

that they approved of those earlier judicial interpretations.

8

REP. NO. 541, 99th Cong., 2d Sess. 13 (1986), reprinted in 1986

U.S.C.C.A.N. 3555, 3567 (emphasis added). The communication

that Varing intercepted was carried by radio waves, not by sound

waves. It is also important to note that the 1986 amendments

expressly excluded cordless telephone conversations from the

definitions of "wire" and "electronic" communications because

Congress felt that it was "inappropriate to make the interception

of such a communication a criminal offense" since some types of

cordless communications can be so easily intercepted. Id. at 12, 

reprinted in 1986 U.S.C.C.A.N. 3555, 3566. It would have been

pointless to amend Title III to exclude cordless communications

from the definitions of "wire communications" and "electronic

communications" if such communications are nonetheless covered by

the term "oral communications."7 Although it might be argued

that this would not be the first time Congress has engaged in

pointless activity, in this case at least, such an interpretation

was clearly not Congress's intent.

2. Fourth Amendment
9

The conclusion that Smith's cordless phone communications

were not protected by Title III does not end our inquiry,

however. Even if Congress has not chosen to extend statutory

protection to cordless phone communications, we must still

determine whether the Fourth Amendment offers Smith any

protection.

The proponent of a motion to suppress has the burden of

proving, by a preponderance of evidence, that the evidence in

question was obtained in violation of his Fourth Amendment

rights. Rakas v. Illinois, 439 U.S. 128, 131 n.1, 133-34 (1978); 

United States v. Castaneda, 951 F.2d 44, 47 (5th Cir. 1992). 

This Court reviews the district court's determination of

underlying facts for clear error. Questions of law, however, are

reviewed de novo. United States v. Coleman, 969 F.2d 126, 129

(5th Cir. 1992); Castaneda, 951 F.2d at 47. The question of

whether an expectation of privacy is reasonable under the

circumstances is a question of law. Schowengerdt v. United

States, 944 F.2d 483, 488 (9th Cir. 1991); United States v.

Jefferson, 925 F.2d 1242, 1248-49 (10th Cir.), cert. denied, 112

S.Ct. 238 (1991).

The legal standard that Smith must satisfy in order to show

a Fourth Amendment violation is well established. First, he must

show that a government activity intruded upon a reasonable

expectation of privacy in such a significant way that the

activity can be called a "search." Second, if a search has in

fact occurred, Smith must show that the government intrusion was
 

8 Since the interception of Smith's communications took

place without a warrant and none of the exigent circumstances

justifying warrantless search were present, Smith would have

little or no trouble satisfying the unreasonable search

requirement. See Minnesota v. Olson, 495 U.S. 91, 99-100 (1990);

Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984); United States v.

Capote-Capote, 946 F.2d 1100, 1102 (5th Cir. 1991). Thus, this

case rises or falls on the issue of whether the interception of

Smith's cordless phone calls was a search for Fourth Amendment

purposes.

10

unreasonable given the particular facts of the case. United

States v. York, 895 F.2d 1026, 1028 (5th Cir. 1990). In this

particular case, the key inquiry is whether the interception of

Smith's phone calls constituted a search within the meaning of

the Fourth Amendment.8 

The definition of the term "search" has always been the

source of some difficulty in Fourth Amendment jurisprudence. See

1 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT

301 (1987). In general terms, it has been said that a search

occurs when the government infringes an expectation of privacy

that society is prepared to consider reasonable. United States

v. Jacobsen, 466 U.S. 109, 113 (1984). Smith argues that the

interception of his cordless phone conversations was a search

because he did not know how the cordless phone worked or that his

conversations would not be private. However, a subjective

expectation of privacy does not, by itself, give rise to Fourth

Amendment protection. The expectation of privacy must be one

that society is prepared to recognize as reasonable. 

While it is true that the right to privacy in a personal

conversation is generally a reasonable expectation, the actions
11

of the parties to the conversation may reduce this expectation to

the point that it is no longer "reasonable." See, e.g., United

States v. Burns, 624 F.2d 95 (10th Cir.), cert. denied, 449 U.S.

954 (1980) (holding that there was no reasonable expectation of

privacy for a loud conversation in a hotel room that could be

heard in adjoining rooms). "What a person knowingly exposes to

the public, even in his own home or office, is not a subject of

Fourth Amendment protection." Katz v. United States, 389 U.S.

347, 351 (1967).

The Supreme Court has noted that what is really involved in

Fourth Amendment analysis is our "societal understanding" about

what deserves "protection from government invasion." Oliver v.

United States, 466 U.S. 170, 178 (1984). In any consideration of

the "societal understanding" about the privacy expectations of

cordless phone users, it is perhaps instructive to note the

important role that all forms of telecommunication, including

various cordless systems, play in today's society. As early as

1967, the Supreme Court recognized the "vital role" that the

telephone plays in modern communication. Katz, 389 U.S. at 352. 

No one would dispute that the importance of telecommunications

today has outstripped anything imagined twenty five years ago. 

In recent years, one of the fastest growing areas in the field of

telecommunications has been "wireless" technology. See Andrew

Kupfer, Phones That Will Work Anywhere, FORTUNE, Aug. 24, 1992, at

100. Cordless phones, in particular, are threatening to outstrip

sales of traditional land line telephones. Today, nearly half of
12

the 95 million U.S. households use cordless telephones, and more

than 16 million new cordless phones are expected to be sold this

year. Anthony Ramirez, More Range, Less Static in New Cordless

Phones, N.Y. TIMES, Sept. 12, 1992, § 1, at 11. If, as some

experts predict, we are moving inexorably toward a completely

cordless telephone system, the decision as to whether cordless

telephone conversations are protected by the Fourth Amendment may

ultimately determine whether any telephone conversation is

protected by the Fourth Amendment. 

With this sobering thought in mind, we now turn to the

application of established Fourth Amendment principles to the

subject of cordless telephones. From a Fourth Amendment

standpoint, the problem with cordless phones is figuring out how

to characterize them. Are they more like traditional telephones

or more like radio transmitters? This difference is important

because the Fourth Amendment clearly protects communications

carried by land-based telephone lines. See Katz v. United

States, 389 U.S. 347 (1967). On the other hand, pure radio

communications are afforded no such protection because

"[b]roadcasting communications into the air by radio waves is

more analogous to carrying on an oral communication in a loud

voice or with a megaphone than it is to the privacy afforded by a

wire." United States v. Hall, 488 F.2d 193, 196 (9th Cir. 1973);

see Goodall's Charter Bus Serv., Inc. v. San Diego Unified Sch.

Dist., 178 Cal. Rptr. 21 (1981). 
13

Cordless phones are difficult to characterize because they

do not fit neatly into either category. In one sense, the

cordless telephone is just what the name implies, a telephone. 

It looks and sounds like a normal land line telephone. When you

use a cordless phone, you dial a telephone number and talk to the

party on the other end of the line. In actual operation,

however, the cordless phone actually uses a radio signal. The

typical cordless phone consists of a base unit, attached to the

land-based telephone line, and a mobile unit which transmits and

receives the radio signals that carry the actual conversation to

and from the base unit. See generally Alan Gadlin, Note, Title

III Protection for Wireless Telephones, 1985 U. ILL. L. REV. 143

(1985); Kelley K. Hwang, Note, The Admissibility of Evidence

Obtained by Eavesdropping on Cordless Telephone Conversations, 86

COLUM. L. REV. 323 (1986).

One of the first cases to deal specifically with the

question of whether a user of a cordless phone has a reasonable

expectation of privacy was State v. Howard, 679 P.2d 197 (Kan.

1984). In Howard, as in most of the cases dealing with the

interception of cordless phone communications, the precise issue

before the court was whether the interception of cordless phone

conversations fell under Title III. See also Tyler v. Berodt,

877 F.2d 705 (8th Cir. 1989); State v. Delaurier, 488 A.2d 688

(R.I. 1985); State v. Smith, 438 N.W.2d 571 (Wis. 1989). The key

inquiry in each of these cases was whether cordless phone

conversations had a reasonable expectation of privacy so as to
 

9 As discussed earlier, the legislative history for the

1986 amendments makes it clear that the term "oral

communications" does not include cordless telephone

conversations. Lacking this sort of illuminating legislative

history, cases dealing with the pre-1986 version of Title III all

focused on the "justified expectation of privacy" requirement

found in the definition of oral communication. Because this

requirement was drawn from the "reasonable expectation of

privacy" developed for Fourth Amendment analysis, the test for a

Title III claim and a constitutional claim were basically the

same. See Tyler, 877 F.2d at 706. Now that Congress has made it

clear that "oral communication" does not include cordless

telephone conversations, our analysis must proceed differently. 

Whether the user of a cordless telephone has a reasonable

expectation of privacy is now only relevant for Fourth Amendment

purposes. 

14

fit within the statutory definition of "oral communications."9

Although we have concluded that both the plain text of Title III

and the legislative history of the 1986 amendments show that

Congress never intended to include cordless phone conversations

within the definition of "oral communication," the analysis of

the reasonableness found in the pre-amendment cases dealing with

Title III is virtually identical to the appropriate inquiry under

the Fourth Amendment. 

In Howard, a neighbor overheard the defendant's cordless

telephone conversation on a standard AM/FM radio. The

conversations indicated that Howard was involved in drug

trafficking so the neighbor recorded several conversations and

provided them to the police. Based primarily upon the tape

recorded conversations, police obtained a search warrant for

Howard's residence where they discovered "certain narcotic

drugs." Howard, 679 P.2d at 199. 
15

At a hearing on Howard's motion to suppress, an employee of

the manufacturer of Howard's cordless phone testified "as to the

nature and operational dynamics" of the phone. Id. The witness

testified that, because the cordless phone utilized a commercial

radio frequency to communicate with the base unit, any standard

FM radio could pick up conversations from the phone. The phone

also had a range of up to 100 feet, depending on conditions. 

Further, this cordless phone, as well as other cordless phones in

use at the time had a preset frequency. Any other cordless phone

set to the same frequency could also pick up the same

conversations. The only way to change the frequency of the phone

was to return it to the factory for modification. Id. 

After hearing this testimony, the Howard court held that the

defendant could have had no reasonable expectation of privacy in

his cordless phone communications because they could be heard by

anyone listening on an ordinary radio receiver. As a result, the

communications could not be considered "oral communications"

under the pre-1986 version of Title III. See also Delaurier, 488

A.2d at 694 (holding that there could be no reasonable

expectation of privacy for conversations "put on the air

voluntarily, and accessible to anyone possessing an ordinary AM

radio"); Smith, 438 N.W.2d at 573 (holding that user could have

no reasonable expectation of privacy for conversations over a

cordless phone where facts showed that phone had a range of over

700 feet and "was subject to ready interception by standard radio

scanners, radio receivers, or other cordless telephones").
16

The essential holding of Howard--and of each of the other

cases to consider the issue--was that, based upon the particular

characteristics of the cordless phone in question, there could

have been no reasonable expectation of privacy in the cordless

phone transmissions due to the ease with which they could be

monitored. In other words, although the individual communication

at issue would normally be subject to Fourth Amendment

protection, the defendants had "knowingly exposed" the

communication to the public by using a technology that could be

so easily intercepted. Nonetheless, these cases should not be

read to stand for the proposition that a communication loses

Fourth Amendment protection simply because it is not transmitted

by wire. There is nothing magical about a telephone line. The

significant difference between land line telephone conversations

and conversations carried out over early versions of the cordless

phone was the ease with which cordless phone conversations could

be intercepted. It was so easy to overhear early cordless phone

conversations that a user could never have a reasonable

expectation of privacy. 

While we completely agree with these earlier decisions, it

is important to note that since those cases were decided cordless

technology has continued to evolve. Today's cordless phones are

very different from the models at issue in Howard and Delaurier. 

The effective range of cordless phones varies greatly from model

to model; many are limited to a range of about sixty feet, barely

beyond the average house or yard. Obviously it is more
17

reasonable to expect privacy from a broadcast that cannot be

heard outside your own property than it is to expect privacy for

a broadcast that covers a whole neighborhood. Cordless phones

are also no longer "pre-set" to one frequency. Instead, most

cordless phones sold today can monitor all available frequencies

and automatically select one that is unused. This greatly

reduces the chance that a cordless phone will pick up

conversations from other cordless phones. Today's cordless

phones broadcast on radio frequencies not utilized by commercial

radio so that conventional radios can no longer pick up cordless

phone communication. Although radio scanners--like the one used

by Mr. Varing--can still monitor most cordless phones, only a

small percentage of people own such scanners. Surely the

reasonableness of an expectation of privacy becomes greater when

the conversation can only be intercepted using specialized

equipment not possessed by the average citizen. Finally,

cordless phones now appearing on the market actually scramble the

radio signal so that even radio scanners cannot intercept the

communication. 

Courts should bear in mind that the issue is not whether it

is conceivable that someone could eavesdrop on a conversation but

whether it is reasonable to expect privacy. See Florida v.

Riley, 488 U.S. 445, 453-54 (1989) (O'Connor, J., concurring). 

No matter how technologically advanced cordless communication

becomes, some people will always find a way to eavesdrop on their
 

10 The same holds true for land-based telephone lines. The

equipment needed to tap a regular telephone line can be purchased

for less than $ 25 at Radio Shack (considerably less that the

cost of a Bearcat scanner). Yet if Congress for some reason

removed land line telephones from the reach of Title III, this

would not mean that there would be no Fourth Amendment protection

for telephones. The fact that some individuals eavesdrop on

regular telephone conversations does not mean that no one has a

reasonable expectation of privacy for ordinary phone calls. 

18

neighbors.10 However, "[t]he fact that [Listening] Toms abound

does not license the government to follow suit." United States

v. Kim, 415 F. Supp. 1252, 1256 (D. Haw. 1976). Although we

express no opinion as to what features or circumstances would be

necessary to give rise to a reasonable expectation of privacy, it

should be obvious that as technological advances make cordless

communications more private at some point such communication will

be entitled to Fourth Amendment protection. Given this

conclusion, it should be equally obvious that it is not enough

for a trial court to conclude that interception of a conversation

does not implicate Fourth Amendment concerns simply because it is

carried by a "cordless" phone. Application of the Fourth

Amendment in a given case will depend largely upon the specific

technology used, and a trial court must be prepared to consider

that technology in a hearing on a motion to suppress. 

This is not a novel announcement. Any determination of the

reasonableness of an individual's expectation of privacy is

necessarily fact intensive. It is often said that "occupants who

leave window curtains or blinds open expose themselves to the

public's scrutiny of activities within that part of the house

that can be seen from outside the premises." United States v.
19

York, 895 F.2d 1026, 1029 (5th Cir. 1990). Yet this does not

mean that the Fourth Amendment never applies when the curtains

are open. 

In United States v. Kim, 415 F. Supp. 1252 (D. Haw. 1976),

FBI agents had used an 800 millimeter telescope to observe

activities inside Kim's high-rise apartment from a quarter of a

mile away. There were no buildings in the line of sight located

significantly closer. The district court categorically rejected

the government's argument that because Kim left his curtains open

his activities were in plain view. Id. at 1256. In spite of the

fact that the curtains were open, the circumstances clearly

established that Kim nonetheless had a reasonable expectation of

privacy in his home. Accord United States v. Taborda, 635 F.2d

131, 138 (2d Cir. 1980); Wheeler v. State, 659 S.W.2d 381, 389-90

(Tex. Crim. App. 1982); see also National Treasury Employees

Union v. Von Raab, 816 F.2d 170, 175 (5th Cir. 1987) ("An

individual . . . may open the curtains of his home to the view of

unenhanced vision without consenting to the view of a

telescope.").

Likewise, in spite of the fact that a defendant uses a

cordless phone, the circumstances may show that he also has a

reasonable expectation of privacy. When faced with a motion to

suppress intercepted cordless phone communications, a trial court

must do more than simply conclude that a defendant had no

expectation of privacy because he used a cordless phone; 

instead, the trial court must be prepared to consider the
20

reasonableness of the privacy expectation in light of all the

particular circumstances and the particular phone at issue. 

Granted, it would be easier to apply a general rule that it

either is or is not reasonable to expect privacy for cordless

telephone communications. The creation of such a general rule,

however, is beyond the proper role of the judiciary. "Courts are

as a general matter in the business of applying settled

principles and precedents of law to the disputes that come to the

bar." James B. Beam Distilling Co. v. Georgia, 111 S.Ct. 2439,

2442 (1991). Having said that, we now turn to an application of

the law to the specific facts and circumstances present in this

case. 

Smith argued before the trial court that the interception of

his cordless telephone conversations violated his Fourth

Amendment rights. However, he introduced no evidence that could

support this argument. His arguments before the trial court, and

the bulk of his arguments before this Court, all revolved around

the fact that Smith did not know that his conversations would not

be private. Yet, subjective expectations of privacy are not

enough to give rise to Fourth Amendment protection. The real

question is whether Smith's subjective expectation of privacy is

one that society is prepared to recognize as reasonable. As

discussed earlier, the reasonableness of any expectation of

privacy for a cordless phone conversation will depend, in large

part, upon the specific telephone at issue. As the proponent of

the motion to suppress, the burden was on Smith to show that the
21

evidence in this case was obtained in violation of his Fourth

Amendment rights. Yet Smith introduced absolutely no evidence--

such as the phone's frequency or range--that would tend to show

that his subjective expectation of privacy was reasonable. Our

discussion in this case has gone into great detail because it

appears from the record that the trial court incorrectly assumed

that there could never be a reasonable expectation of privacy for

a cordless phone communication. Even under a correct application

of the law, however, Smith failed to carry his burden of showing

that his Fourth Amendment rights were violated. Smith's motion

to suppress was properly denied.

III. CONCLUSION

For the reasons stated, we hold that the evidence was

sufficient to sustain Smith's conviction on the charge that he

used and carried a firearm during and in relation to a drug

trafficking crime. As to Smith's objections to the evidence

obtained as a result of the interception of Smith's cordless

telephone conversations, we first hold that Title III does not

apply to intercepted cordless phone conversations. Also, we

conclude that Smith failed to carry his burden of showing that

the evidence against him was obtained in violation of his Fourth

Amendment rights. Accordingly, the judgment of the district

court must be AFFIRMED.