T.P.I. -- CRIM.  39.04

ILLEGAL WIRETAPPING OR ELECTRONIC SURVEILLANCE

            Any person who commits the crime of [illegal wiretapping] [illegal electronic surveillance] is guilty of a crime.

            For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements:1

[Part A:

            (1)  that the defendant [intercepted or attempted to intercept] [procured

                   another person to intercept or attempt to intercept] any wire, oral, or

                   electronic communication;

and

            (2)  that the defendant acted intentionally.]

or

[Part B:

            (1)  that the defendant [used or attempted to use] [procured another

                   person to use or attempt to use] any electronic, mechanical or other

                   device to intercept any oral communication when [the device was

                   affixed to, or transmitted a signal through, a wire, cable, or other like

                   connection used in wire communication] [the device transmitted

                   communications by radio] [the device interfered with the transmission

                   of the communication];

and

            (2)  that the defendant acted intentionally.]

or

[Part C:

            (1)  that the defendant [disclosed or attempted to disclose to another

                   person] [used or attempted to use] the contents of any wire, oral, or

                   electronic communication, knowing or having reason to know that the

                   information was obtained through the interception of a wire, oral, or

                   electronic communication;

and

            (2)  that the defendant acted intentionally.]

or

[Part D:

            (1)  that the defendant intercepted a wire, oral, or electronic

                   communication for the purpose of committing ________________, a

                   criminal act;

                   [Include here the elements of the crime(s) alleged.]

and

            (2)  that the defendant acted either intentionally, knowingly or recklessly.]2              See footnote 2 below.]

            "Contents," when used with respect to any wire, oral, or electronic communication, includes any information concerning the substance, purport, or meaning of that communication.3

            "Electronic communication" means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by the aid of wire, radio, electromagnetic, photooptical, or photoelectronic facilities, but does not include:

            (a)  the radio portion of a cordless telephone communication that is

                   transmitted between the cordless telephone handset and the base

                   unit;

            (b)  any wire or oral communication;

            (c)  any communication made through a tone-only paging device; or

            (d)  any communication from a "tracking device." [as defined in 18 U.S.C.              § 3117]4

            "Electronic, mechanical, or other device" means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than:

            (a)  any telephone or telegraph instrument, equipment or facility, or any

                   component of one, that was:

                   (i)  furnished to the subscriber or user by a provider of wire or

                          electronic service in the ordinary course of business and being

                          used by the subscriber or user in the ordinary course of its

                          business or furnished by such subscriber for connection to the

                          facilities of such service and used in the ordinary course of its

                          business; or

                   (ii) being used by a provider of wire or electronic communication

                          service in the ordinary course of its business; or

                   (iii) being used by an investigative or law enforcement officer in the

                          ordinary course of such person's duties;

            (b)  a hearing aid or similar device being used to correct sub-normal

                   hearing to not better than normal.5

            "Intercept" means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.6

            "Investigative or other law enforcement officer" means:

            (a)  in all counties having a population in excess of two hundred and fifty

                   thousand (250,000) according to the 1990 federal census or any

                   subsequent federal census:

                   (i)  any officer of this state or a political subdivision of the state , who:

                        a) is empowered by law to conduct investigations of or to make

                              arrests for offenses involving criminal homicide or criminal

                             conspiracy; and

                          b) has successfully completed a training course on the

                               interception and use of wire, oral, and electronic

                               communications approved by the Tennessee peace officer

                               standards and training commission or the Tennessee bureau

                              of investigation; or

                   (ii)  any attorney authorized by law to prosecute criminal homicide or

                         criminal conspiracy; or

            (b)  in all other counties:

                   (i)  an agent of  the Tennessee bureau of investigation, who:

                          a)  is empowered by law to conduct investigations of or to make

                               arrests for criminal homicide or criminal conspiracy; and

                          b)  has successfully completed a training course on the

                               interception and use of wire, oral, and electronic

                              communications approved by the bureau; or

                   (ii)  any attorney authorized by law to prosecute criminal homicide or

                          criminal conspiracy.7

            "Oral communication" means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but "oral communication" does not include any electronic communication.8

            "Provider of wire or electronics communication service" means an entity which holds itself out to the public as engaged in the business of transmitting messages through the use of wire communication or electronic communication.9


            "Wire communication" means 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 (including the use of such connection in a switching station) furnished or operated by any person engaged as a provider of wire or electronic communications service in providing or operating such facilities for the transmission of communications, and includes any electronic storage of such communication.  "Wire communication" does not include the radio portion of a cordless telephone communication that is transmitted between the cordless telephone handset and the base unit.10

            "Intentionally" means that a person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result.11 

            ["Knowingly" means that a person acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist.  A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.]12

            ["Recklessly" means that a person acts recklessly with respect to circumstances surrounding the conduct, or the result of the conduct, when the person is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur.  The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the accused person's standpoint.]13 

FOOTNOTES

  1.  Tenn. Code Ann. § 39-13-601(a)(1) and (b)(6).

  2.  Tenn. Code Ann. § 39-11-302(b) and (c) and accompanying Sentencing

       Commission Comment.  The Committee is of the opinion that the definitions

       of "knowingly" and "recklessly", although statutorily required, are in conflict

       with the elements of the offense.  Because the elements of the offense

       include "for the purpose of", some trial judges believe that only "intent"

       should be charged for Part D of this offense.

  3.  Tenn. Code Ann. § 40-6-303(4).


  4.  Tenn. Code Ann. § 40-6-303(7). In the statutory definition, the citation to the

       U.S. Code is mentioned.  It is suggested that if "tracking device" is not fairly

       raised by the proof, this part of the definition should be omitted.  If

       "tracking device" is fairly raised, the trial judge should consult its current

       definition in the U.S. Code and insert the proper definition here, omitting the

       Code cite.

  5.  Tenn. Code Ann. § 40-6-303(9).

  6.  Tenn. Code Ann. § 40-6-303(11).

  7.  Tenn. Code Ann. § 40-6-303(12).

  8.  Tenn. Code Ann. § 40-6-303(14).

  9.  Tenn. Code Ann. § 40-6-303(15).

10.  Tenn. Code Ann. § 40-6-303(18).

11.  Tenn. Code Ann. § 39-11-106(a)(18).

12.  Tenn. Code Ann. § 39-11-106(a)(20).

13.  Tenn. Code Ann. § 39-11-106(a)(31).

COMMENTS

            1.  Illegal wiretapping and electronic surveillance under Tenn. Code Ann. § 39-13-603(a), the elements of which are given in Parts A, B and C of this charge, is a Class D felony, pursuant to Tenn. Code Ann. § 39-13-602.  Illegal wiretapping and electronic surveillance under Tenn. Code Ann. § 39-13-603(b)(6), the elements of which are given in Part D of this instruction, has no stated punishment and, therefore, pursuant to Tenn. Code Ann. § 39-11-111 and Tenn. Code Ann. § 39-11-114, is a Class A misdemeanor.

            2.  The trial judge should utilize, where relevant, T.P.I. -- CRIM. 4.01 (Attempt).

            3.  There are numerous exceptions listed in Tenn. Code Ann. § 39-13-601 and 603, such as being an employee of a communications business, acting in good faith on a court order, having the consent of one of the parties, and several others.  The trial judge should charge any fairly raised by the proof and consult Tenn. Code Ann. § 40-6-303 for the definitions of any additional terms mentioned in the exceptions charged.  The Committee recommends that the trial judge use the following language:

            "It is an exception to this offense that ________.  If the defendant proves this exception by a preponderance of the evidence, you must find [him] [her] not guilty."

            The trial judge should then instruct the jury regarding Preponderance of the Evidence.  See T.P.I. -- CRIM.  42.01.

            4.  If the definition of an offense within Title 39 does not plainly dispense with a mental element, intent, knowledge or recklessness suffices to establish the culpable mental state.  Tenn. Code Ann. § 39-11-301(c).  Therefore, the Committee is of the opinion that the definitions of "intentionally", "knowingly", and "recklessly" are statutorily required and should be charged if Part D is the offense charged.  See also footnote 2 above.