APPEAL FROM THE JUDGMENT AND ORDER OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. (D.C. Criminal No. 73-283).
Forman, Aldisert and Rosenn, Circuit Judges.
Appellant Ronald F. Buchert and several co-defendants were indicted on three counts in the United States District Court for the Western District of Pennsylvania. Having waived his right to trial by jury, appellant was tried to the court and convicted on the second and third counts*fn1 of the indictment which charged (1) the unlawful distribution of methamphetamine on September 1, 1973 and (2) the possession of methamphetamine with intent to distribute it on September 28, 1973, both violations of 21 U.S.C. § 841(a) (1)*fn2 and 18 U.S.C. § 2.*fn3 In each of these transactions appellant allegedly supplied methamphetamine powder to co-defendant Frank J. Dorsey*fn4 who in turn sold, or intended to sell, the powder to Francis J. Schmotzer, a federal undercover agent. Agent Schmotzer never dealt face-to-face with appellant, but only through Dorsey.
Among pretrial motions made on appellant's behalf was one to suppress evidence obtained by the Government's warrantless "interception" of telephone communications between appellant and Agent Schmotzer on September 12 and September 28, 1973, both of which were alleged to have been recorded by the Government.
The grounds for the motion were asserted to be that
(1) the telephonic communications were seized without the Government having previously obtained a court order pursuant to the Omnibus Crime Control Act, Title 3, Wiretap Provisions (18 U.S.C. § 2510 et seq.);
(2) they were seized without the appellant's consent;
(3) they were seized in violation of appellant's Fourth Amendment constitutional rights; and
(4) 18 U.S.C. § 2511(2) (c), which authorizes consensual interceptions, is unconstitutional.
The District Judge denied the motion, saying:
Defendant Buchert's motion to suppress telephone tapes of conversations between himself and an undercover agent will also be denied. Whatever expectation of privacy defendant Buchert had by virtue of Katz v. U.S., 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967), he gave up when he confided in the agent. This is clearly the import of Lopez v. U.S., 373 U.S. 427, 10 L. Ed. 2d 462, 83 S. Ct. 1381 (1963). U.S. v. White, 401 U.S. 745, 753, 28 L. Ed. 2d 453, 91 S. Ct. 1122 (1971). The recording of conversations between undercover agents and suspected wrongdoers may be a distasteful example of law enforcement activity, but in this instance it was not an activity which can be found to have violated defendant's constitutional rights.*fn5
At trial, the prosecution connected appellant to the transactions by introducing evidence of the two telephone conversations he initiated with Agent Schmotzer, one linking him to the September 1 sale and the other connecting him to the attempted sale of September 28. On this appeal, Buchert submits that his conviction must be set aside because of the trial judge's ...