Opinion
Case No. 8:00CR102
July, 2000
ORDER
A superseding indictment (Filing No. 23) charges the defendant with 1) one count of conspiracy to distribute and possess with intent to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 846, and 2) one count of possession of 50 grams or more of methamphetamine in violation of 21 U.S.C. § 841(a)(1). On July 21, 2000, the defendant's motion (Filing No. 19) to suppress evidence obtained by pen registers and interceptions of wire and oral communications came on for hearing. At the close of the hearing, I informed counsel of my preliminary findings, which I restate here for the record:
1. The magistrate's order (Ex. 1) of May 14, 1999, authorizing the installation and use of a pen register and enhanced caller identification services contained a typographical error. The cell phone number subject to the order was 402-598-6142 rather than 402-598-6412.
2. The Omaha Police Department did nothing improper in seeking orders from a state court judge (Exs. 6 and 10) that authorized a pen register and caller identification services and that continued the pen register in effect pursuant to the magistrate's May 1999 order.
3. The Douglas County Attorney complied with Douglas County District Court Judge Troia's order (Ex. 6) requiring interim reports.
4. The inventory letter (Ex. 15) notifying the defendant that he was an interceptee was actually sent to the address given in the letter, 7642 Nina Street, Omaha, Nebraska.
I took under advisement several other issues which I now address. My rulings assume that the defendant has standing to challenge the orders at issue here, although the defendant did not put to rest the standing problem in his brief or argument.
First, the defendant argues that enhanced caller identification services are not available under the federal statutes which allow pen registers and trap and trace devices. See 18 U.S.C. § 3122-3127. I disagree. A "trap and trace device" is defined as a device which "captures the incoming electronic or other impulses which identify the originating number of an instrument or device from which a wire or electronic communication was transmitted." 18 U.S.C. § 3127(4). Enhanced caller identification services perform this function in a sophisticated manner.
Under federal law, the government may require a provider of an electronic communication service or a remote computing service to disclose 1) the contents of an electronic communication that is in electronic storage in an electronic communications system, or 2) the records or other information pertaining to a subscriber to or customer of such service. 18 U.S.C. § 2703(a)-(c). The information available to the government under a warrant or an administrative or trial subpoena includes "the name, address, local and long distance telephone toll billing records, telephone number or other subscriber number or identity, and length of service of a subscriber to or customer of such service and the types of services the subscriber or customer utilized." 18 U.S.C. § 2701(c)(1)(C). The defendant argues that because the government did not obtain a warrant or an administrative subpoena but only an order, it was not entitled to use enhanced caller identification services. That statute also states, however, that a "court order for disclosure" may issue only if the government offers "specific and articulable facts showing there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation." 18 U.S.C. § 2701(d). Since the affidavits which the government submitted to both the magistrate and the state court judge were sufficient to make such a showing, I find that the judges' orders effectively authorized the use of enhanced caller identification services.
The second issue I took under advisement was whether state law enforcement officials properly notified the defendant that he was an interceptee. See Neb. Rev. Stat. § 86-705. A judge issuing an order authorizing interception of wire, electronic or oral communications "shall cause" the applicant for the interception order to serve an inventory on the persons named in the order "and such other parties to intercepted communications which the judge may determine to be in the interest of justice." Neb. Rev. Stat. § 86-705(9)(a). The inventory shall be served "within a reasonable time, but not longer than ninety days after the termination of the period of an order or extensions thereof." Id. The defendant claims that the county attorney failed to notify the defendant that he was an interceptee within the statutory ninety days.
On September 7, 1999, Nebraska District Court Judge Troia signed the initial order authorizing interception on telephone number 402-598-6142. In the order, he directed the Douglas County Attorney to make interim reports every twelve to sixteen days. The county attorney did not report until October 5, 1999, the same day he filed an affidavit and application for an extension of the order. The state court entered an order terminating the wiretap on October 20, 1999. The date of the interception notice sent to the defendant is apparently dated December 30, 1999, although the government could not provide a dated copy of the actual notice it sent to the defendant signed by the Douglas County Attorney. See Exs.13-15. The notice thus fell well within the ninety days following termination of the October 5, 1999, order extending the September 7 interception order.
Further, even if I allow that the inventory was not served on the defendant within ninety days, I am not required to exclude all communications intercepted under the order and the extension. The statute provides that exclusion is not required when the failure to serve was for good cause, "did not substantially affect the rights of the defendant in the matter," or when a judge orders the serving of the inventory postponed. Neb. Rev. Stat. § 86-705(9)(c). The defendant has not established that his rights were affected by the delay in serving the inventory upon him.
Third, the defendant argued that the state wiretap order of September 7, 1999, was not necessary because law enforcement officials had available to them less invasive but nevertheless successful investigatory procedures that had provided detailed information about the activities of Mark Reeves, the individual whose phone number was the object of the wiretap orders, and other co-conspirators.
A Nebraska court may issue an order authorizing law enforcement officials to intercept "when such interception may provide or has provided evidence of the commission of the offense of murder, kidnaping, robbery, bribery, extortion, dealing in narcotic or other dangerous drugs, or any conspiracy to commit any such offenses." Neb. Rev. Stat. § 86-703. While it is true that interception may not be the initial step in a criminal investigation, Nebraska v. Brennen, 336 N.W.2d 79 (1985), aff'd, 356 N.W.2d 861 (1986), the September 1999 wiretap order here was part of an ongoing investigation into a drug conspiracy that had commenced even before the magistrate's May 1999 order.
Finally, the defendant argued at hearing that because law enforcement officials recorded all calls on Reeves' number, they failed in their obligation "to minimize the interception of communications not otherwise subject to interception under sections 86-701 to 86-707." Neb. Rev. Stat. § 86-705(6). Officer Bogdanoff of the Omaha Police Department (OPD) testified that each of the fifteen to twenty officers involved in monitoring Reeves's number received a copy of OPD's written minimization procedures as well as oral minimization instructions. The officer on duty would monitor each call and then type a synopsis of each. This primary monitor would make a preliminary decision about whether to classify the call as criminal or non-criminal, but Officer Bogdanoff made the ultimate classification. I find that the procedure Omaha law enforcement officials used in monitoring and classifying calls on Reeves's number meets the requirements of section 86-705(6).
IT IS THEREFORE ORDERED that the defendant's motion (Filing No. 19) to suppress evidence obtained by pen registers and interceptions of wire and oral communications identification is denied.
DATED this _____ day of July, 2000.