Should "Clean Hands" Protect theGovernment Against § 2515 SuppressionUnder Title III of the Omnibus CrimeControl and Safe Streets Act of 1968?

Francis Marion Hamilton, III* 1. Introduction Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III)' regulates wire and oral interceptions made by both private individuals and government agents.2 Essentially, Title III prohibits all wiretapping and the disclosure of information intercepted by wiretapping except that which is specifically authorized or exempted by the statute.3 Section 2515 operates as an enforcement mechanism for the statute and suppresses the contents of any communication intercepted in violation of Title III.4 Despite the expressly comprehensive scope of sec2515, however, courts have developed exceptions to Title III's suppression provision.5 Recently, a new exception to sec2515 suppression has caused a split in the courts of appeals. The Courts of Appeals for the First and Sixth Circuits differ on whether courts may, in criminal prosecutions, receive illegally intercepted communications in evidence when the government is the innocent recipient of such communications.6 The Sixth Circuit refers to this new exception to sec2515 as the "clean hands" exception.7 This Note addresses the legitimacy of this newfound exception. Part II summarizes the legislative history of the pertinent Title III provisions.8 Part III explains the clean hands exception.9 Part IV critiques the reasoning of the Sixth Circuit's decision in United States v. Murdock. 10 Part V analyzes the deterrence-based argument in favor of the clean hands exception.11 Part VI concludes that the Sixth Circuit erred in adopting a clean hands exception to Title III's exclusionary rule.12 II. A Summary of Title II's Legislative History Prior to Title III, the severely criticized13 Federal Communications Act of 1934 (FCA) governed the use of electronic surveillance.14 Under the FCA, private persons could ignore the statute's restrictions because the restrictions only applied to governmental interceptions.15 However, law enforcement agents could not employ electronic surveillance to investigate and prosecute even the most serious of crimes.16 In addition to these statutory limitations, the Supreme Court, through its decisions in Katz v. United States17 and Berger v. New York,18 also created restrictions on the use of electronic surveillance. In Katz, the Supreme Court held that agents of the Federal Bureau of Investigation (FBI) violated the Fourth Amendment when they failed to obtain a warrant before using an electronic listening and recording device to intercept telephone calls made from a public telephone booth. 19 The Katz Court abandoned the traditional rule that Fourth Amendment violations only occur upon the government's physical trespass into a constitutionally protected area and concluded that, regardless of the individual's location, the Fourth Amendment protects the individual's reasonable expectation of privacy against unauthorized government intrusion.20 In Berger, the Supreme Court struck down New York's extremely permissive electronic surveillance statute.21 The statute under review did not require state law enforcement agents to restrict their wire surveillance to conversations relevant to the alleged criminal activity.22 The Berger Court concluded that the New York statute violated the particularity requirement of the Fourth Amendment because it authorized law enforcement agents to use electronic surveillance indiscriminately.23Thus, after Berger and Katz, to satisfy constitutional scrutiny the government's use of a wiretap had to be authorized by warrant, and the warrant had to order the agents to restrict their wire interceptions to specific conversations. In response to the FCA's inherent deficiencies and to the Berger and Katz decisions, Congress passed Title III.24Generally, Title III serves two purposes: the need to protect individual privacy by prohibiting unwarranted electronic communication interceptions25 and the need to equip law enforcement officials with a weapon necessary to battle organized crime. …