## Facts

- A campground landlady allowed tenants to use her home telephone because rental units lacked phones.
- After receiving repeated obscene calls, she began recording incoming calls using an answering machine at police suggestion.
- She repeatedly told a tenant, Gerald Griggs-Ryan, that all calls to her home were being recorded, intending that he relay the warning to a suspected caller.
- A caller identifying himself as “Richard Kierstead” phoned the landlady’s line and asked to speak with Griggs-Ryan; she kept the line open while her daughter fetched him.
- When Griggs-Ryan picked up an extension, the landlady stayed on the line, listened, and the answering machine recorded the conversation.
- The recorded conversation suggested Griggs-Ryan’s involvement in a drug transaction.
- The landlady delivered the tape to police; a detective used it in an investigation and allegedly disclosed its contents, contributing to Griggs-Ryan’s arrest and prosecution.
- Griggs-Ryan filed two civil actions under the federal wiretap statute (Title III), one against the landlady for interception and disclosure and one against the detective and town for use/disclosure and municipal liability.
- The district court granted summary judgment for all defendants; Griggs-Ryan appealed.

## Issues

1. Whether the landlady’s listening to and recording the call constituted an unlawful interception under Title III, or was exempt because a party to the call gave prior consent (including implied consent) under 18 U.S.C. § 2511(2)(d).
2. Whether the consent exception was unavailable because the recording was made for a criminal or tortious purpose.
3. Whether police use or disclosure of the recording violates Title III when the underlying interception was lawful, and whether the town could be liable on that basis.

## Decision

- The First Circuit affirmed summary judgment for the landlady, the detective, and the town.
- The court held the recording was lawful under § 2511(2)(d) because a party to the call impliedly consented to the recording based on the surrounding circumstances.
- The court found no evidence the recording was made for a criminal or tortious purpose, so the statutory limitation on the consent exception did not apply.
- Because the interception was not “in violation” of Title III, the detective’s later use or disclosure of the tape (and any derivative municipal liability) did not fall within Title III’s prohibitions.

## Legal Principles

- Title III prohibits intentional interception of wire communications, but permits interception when the interceptor is a party or when one party has given prior consent, unless done for a criminal or tortious purpose. 18 U.S.C. § 2511(2)(d).
- Consent under Title III may be implied from surrounding circumstances showing that the consenting party knowingly agreed to the monitoring; it must be “consent in fact,” not merely constructive consent.
- Implied consent requires evidence that the party knew, or had reason to know, of the recording practice and nonetheless chose to proceed with the communication, thereby accepting the risk of monitoring.
- Title III’s prohibitions on use and disclosure apply only to the contents of communications intercepted “in violation” of the statute; lawful interception forecloses civil liability for subsequent use or disclosure on that theory.

## Conclusion

The First Circuit held that the recording of a tenant’s phone call on a shared landlady-controlled line fell within Title III’s consent exception because a party to the call impliedly consented under the totality of the circumstances, and that lawful interception defeated Title III claims based on later police use or disclosure of the tape.


Griggs-Ryan v. Smith, 904 F.2d 112 (1st Cir. 1990)