Opinion
05 Cr. 1007 (JFK).
July 28, 2006
MEMORANDUM OPINION ORDER
At a July 20, 2006 pre-trial conference in the above-captioned case, the Court set a motion schedule for Defendant's anticipated motion to suppress. Defendant Romeo Barnett requested a suppression hearing. The government argued that a suppression hearing was not necessary. After hearing orally from both sides, the Court indicated from the bench that a suppression hearing was probably necessary and tentatively scheduled the hearing for July 28, 2006.
On reflection and having read the recent submissions from both sides, the Court finds that a suppression hearing is not necessary, as there are no contested issues of material fact to resolve. See United States v. Pena, 961 F.2d 333, 339 (2d Cir. 1992).
Items Seized From Apartment in Barrett Township, Pennsylvania
Even though the underlying arrest warrant was for a misdemeanor and limited in geographic scope, the fact of the matter is thatUnited States v. Frank, 8 F. Supp. 2d 284, 299 (S.D.N.Y. 1998) permits the execution of out-of-state warrants, and United States v. Spencer, 684 F.2d 220, 223 (1982) permits entry into a home on a misdemeanor warrant. The Court is pleased to see that the government has not decided to seek the introduction of the marijuana seized from the car parked near the Barrett Township apartment.
Jail House Tapes
Defendant's motion for suppression of his recorded telephone calls is similarly without merit. Defendant claims that "neither he, nor those with whom he spoke, over the phone voluntarily consented to the listening recording [sic] of these conversations." (Def. Mem. L. 6.)
The facts of the case show otherwise. On October 17, 2005, Barnett signed and dated a form that states: "I understand that telephone calls I make from institution telephones may be monitored and recorded." (Gov't Mem. L. Ex. A.) In addition, large placards are posted by each telephone, which state the following in both English and Spanish:
NOTICE
The Bureau of Prisons reserves the authority to monitor conversations on this telephone. Your use of institution telephones constitutes consent to this monitoring. Unmonitored calls may be arranged with a Unit Team member.
(Gov't Mem. L. Ex. C.)
The Second Circuit has upheld the constitutionality of such recordings on nearly identical facts. See United States v. Workman, 80 F.3d 688, 693-94 (2d Cir. 1996); United States v. Willoughby, 860 F.2d 15, 20 (2d Cir. 1988); United States v. Amen, 831 F.2d 373, 378 (2d Cir. 1987).
Conclusion
The motion to suppress the items seized from the apartment and the jail house recordings is denied. The Court will reserve decision on the Rule 404(b) issues. Trial will commence with jury selection on August 7, 2006 at 10 a.m.
SO ORDERED.