APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Gibbons, Hunter, and Rosenn, Circuit Judges. Gibbons, Circuit Judge, dissenting.
1. The United States appeals from two pre-trial orders entered by the United States District Court for the Eastern District of Pennsylvania suppressing evidence in the federal criminal prosecutions of Stephen Kelly and Michael Kelly. The government had planned to introduce three tape-recorded phone conversations between the Kellys and Edward Bencsik involving an alleged deal to buy phenyl-2-propanone. The district court suppressed the tape recordings and their transcripts because it found that Bencsik had not voluntarily consented to the monitoring of the phone conversations. We will reverse.
2. In January of 1982, Edward Bencsik was living in Bensalem Township, Pennsylvania at the apartment of a friend, Charles Clarkson. The government contends that on the evening of January 1, 1982, Stephen and Michael Kelly went to Bencsik's apartment and forced Bencsik at gunpoint to turn over the car keys to a 1969 Plymouth GTX which was parked in his driveway.*fn1 The Kellys allegedly took the car as security for $2000 that Michael Kelly had advanced Bencsik in a drug deal. The next evening Bencsik told Clarkson that the car had been taken by the Kellys as collateral for the $2000. Clarkson, concerned over the disappearance of the car, insisted on telephoning the police to report that it had been stolen. A Bensalem Township police officer arrived at Clarkson's apartment and, while Bencsik waited outside, Clarkson presented to the investigating officer an outline of Bencsik's dealings with the Kellys in hypothetical terms. After the officer left, Clarkson brought Bencsik back into the apartment and suggested to him that he should cooperate with the police.
3. A short time later the officer returned, accompanied by Bensalem Township Police Chief Richard Viola. Viola discussed with Bencsik his actual dealings with the Kellys and asked him if he would be willing to phone the Kellys to verify what had happened. Bencsik agreed. During that discussion Clarkson brought up that Bencsik had a pending criminal charge in Bucks County, Pennsylvania, and asked Viola if he could assist Bencsik in resolving it. Viola was non-committal but said that he would look into the matter.
4. The same evening Viola contacted DEA Special Agent Richard Compton who Viola knew was involved in an active investigation of Stephen Kelly. Viola and Compton agreed to meet with Bencsik at Viola's apartment to record Bencsik's phone call. When Compton arrived he spoke with Bencsik about the investigation and told him that he wanted to record a conversation between Bencsik and either Stephen or Michael Kelly. Compton suggested certain topics that Bencsik could mention in the phone call but did not specify what Bencsik should say. He also explained that he needed Bencsik's consent to tape-record the call. Bencsik agreed to the recording and the monitoring of the call. Compton dialed the Kellys' number, and Bencsik spoke with Stephen Kelly for several minutes. Compton listened to and recorded that conversation.
5. On the morning of January 4, 1982, Bencsik went to the Bensalem Township Police Department and was fitted with a body recorder. Shortly after noon he returned to Clarkson's apartment where he met with Clarkson, Compton, and Viola. Compton asked Bencsik if he could monitor another call between Bencsik and the Kellys. Bencsik agreed. Bencsik called the Kellys, and Compton recorded a conversation between Bencsik and Michael Kelly. Later that afternoon Compton asked Bencsik to make another call. Bencsik again agreed, and Compton recorded a second conversation between Bencsik and Michael Kelly. Both Kellys were arrested later that day.*fn2
6. Bencsik testified that between January 2 and January 4 he probably used either marijuana or methamphetamine. Although he could not remember exactly what drugs he might have taken, Bencsik described himself as a fairly regular user of methamphetamine, Demerols, and marijuana during that time period. Bencsik stated, however, that the drugs did not impair his ability to reason and think and that his usage was "not to an extent [that] I wasn't in touch with reality." App. at 176A-77A.
7. On the evening of January 6, Bencsik again met with Clarkson, Compton, and Viola. The subject of Bencsik's possible relocation to ensure his personal safety came up as well as Clarkson's concern over being paid for the car. The following day Compton gave Bencsik $1000 in cash from DEA funds. Bencsik paid Clarkson $700 to cover the balance owed on the car and kept the remainder for relocation expenses. At no time prior to the making of the tape-recorded conversations did ...