Opinion
No. CR99-0057.
March 9, 2000.
REPORT AND RECOMMENDATION
This matter comes before the court pursuant to the defendant's February 22, 2000, motion to suppress evidence (docket number 31). The court held an evidentiary hearing on this motion on March 8, 2000, at which the defendant was present and represented by Jon Hammond. The government was represented by Assistant United States Attorney Stephanie Rose.
The motion to suppress seeks to prevent the government from offering the transcript of a recorded telephone call involving the defendant. He contends that the surreptitious recording of this conversation violates Title III of the Omnibus Crime Control and Safe Streets Act of 1968. The government argues that the recording was inadvertent and should not be suppressed. It is recommended that the motion to suppress be granted.
FINDINGS OF FACT
In April 1996, informant Matthew Hemminger was cooperating with the government. As a party of his cooperation, Hemminger agreed to have a recording device installed on his telephone. The recording device was such that it was activated automatically upon lifting the receiver from the telephone cradle. The recording device could be overridden by pressing the stop or pause buttons on the recorded secreted in a cabinet just inches away from the telephone.
Hemminger would record all of his drug-related telephone calls. Once the tape was full, he would give it to Benton County Detective Peter Wright together with a log that he had made of drug-related telephone calls.
At some unknown time in April of 1996, defendant Agim Baftiri was at the defendant's residence for the purpose of conducting drug transactions. He asked Matthew Hemminger if he could use the phone and Hemminger agreed. The court assumes that Hemminger had no intent to deactivate the recording device but, in any event, he could not deactivate the recording device without alerting the defendant to its presence. The defendant made the telephone call and had conversation that the government believes is drug related.See transcript, Government's Exhibit 1.
At the hearing, Matthew Hemminger testified that he had no independent recollection of the telephone call at issue. He had not read the transcript of that call or listened to the tape recording of it. One would have to assume that in order to testify about what he heard the defendant say on that telephone call, Hemminger will have to use the tape recording itself to refresh his recollection.
CONCLUSIONS OF LAW
The surreptitious recording of a telephone conversation by a person who is not a party to that telephone conversation violates Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Pursuant to 18 U.S.C. § 2511(a), it is a violation of the law to intercept any wire, oral or electronic communication. Exceptions are provided for inception done pursuant to a warrant and in § 2511(2)(c) and (d) which permit persons acting under color of law or not under color of law to intercept such communications where such person is a party to the communication or one of the parties to the communication has given prior consent to the interception.
The government concedes that the defendant's telephone call was surreptitiously intercepted and recorded, that neither party to the call consented, and that no warrant was sought pursuant to Title III. It contends that the call should not be suppressed as it was inadvertently acquired. The government cites United States v. Baranek, 903 F.2d 1068 (6th Cir. 1990), for the proposition that such inadvertent interception of oral communications does not require suppression. In Baranek, the targets of a Title III wiretap inadvertently left their phone off the hook. Agents then recorded conversations in the residence through the telephone wiretap.
The difference between Baranek and the matter now before this court is that there was nothing inadvertent about the recording of the defendant's telephone call. The recording device was set up to record every call placed by anyone or received by anyone from the telephone in question. The government could and should anticipate that persons other than Matthew Hemminger would use that telephone. The interception and recording of this telephone call between the defendant and another violates the plain language of Title III and there is no exception under the statute that would prevent its suppression.
Derivative Use Of The Tape-Recording
The defendant contends that if the tape recording is suppressed as a violation of Title III, the government should not be able to use that tape recording for any purpose. Pursuant to 18 U.S.C. § 2515:
Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter.
The defendant contends that the plain language of § 2515 prohibits the government from using the tape recording to refresh Matthew Hemminger's recollection.
In Gelbard v. United States, 408 U.S. 41 (1972), the United States Supreme Court addressed the importance of § 2515 in Title III's legislative scheme. In that case, the defendants contended that they had been the subject of illegal federal wiretapping. When they were found in contempt for refusing to testify before the grand jury, they appealed arguing that grand jury interrogation based upon the illegal interception would constitute a showing of "just cause" for refusing to testify that would preclude a finding of contempt. The Supreme Court agreed. The Supreme Court noted that, except as authorized in Title III, all interceptions of wire and oral communications are flatly prohibited. Unauthorized interceptions and the disclosure and use of information obtained through unauthorized interceptions are crimes. As the Supreme Court stated:
The unequivocal language of § 2515 expresses the fundamental policy adopted by Congress on the subject of wiretapping and electronic surveillance. As the congressional findings for Title III make plain, that policy is strictly to limit the employment of those techniques of acquiring information. . . . Gelbard, supra, at 47. The Court referred to § 2515 as being "central to the legislative scheme." "Its importance as a protection for the victim of an unlawful invasion of privacy could not be more clear." Id. at 50. See also Chandler v. United States Army, 125 F.3d 1296 (9th Cir. 1997) (Prohibition of § 2515 is broad enough to prevent the courts from being partners in illegal conduct. Id. at 1304. The government cannot profit from an illegal wiretap, public or private. Id.
But see United States v. RICCO, 566 F.2d 433 (2d Cir. 1977) (where agents violated Title III by failing to properly seal the tapes, § 2518(8)'s prohibition against use did not preclude agents from using the tapes to refresh witnesses' recollection. However, as explained in Ricco, § 2518(8) specifically refers only to the restriction found in § 2517(3) which is testimonial use.See also Williams v. Poulus, 11 F.3d 271 (1st Cir. 1993), on use of illegal wiretaps for impeachment.
The plain language of § 2515 precludes the introduction of the tape recording in question. It also states that no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court. Gelbard described this protection as being central to Title III. It cited approvingly the congressional policy to strictly limit the employment of wiretapping. For these reasons, the court should prohibit the government from using the illegally-acquired tape recording for any purpose, including to refresh recollection.
Upon the foregoing,
IT IS RECOMMENDED that, unless any party files objections to the Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(C) and Fed.R.Civ.P. 72(b) within ten (10) days of the service of a copy of this report and recommendation, the defendant's motion to suppress be granted.
Objections must specify the parts of the report and recommendation to which objections are made. Objections also must specify the parts of the record, including exhibits and transcript lines, which form the basis for such objections. See Fed.R.Civ.P . 72. Failure to file timely objections may result in waiver of the right to appeal questions of fact. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990).