Opinion
Criminal Action No. 4:03CR-32-M.
November 17, 2004
MEMORANDUM OPINION AND ORDER
This matter is before the Court on motions by Defendants, Claude Sutton and Robert Lowas, to suppress all telephone conversations recorded from the Henderson County Detention Center [DN 62, DN 75] and on a motion by Defendant, Robert Lowas, to suppress the contents of the package searched on April 28, 2003 [DN 75]. Defendants claim that the monitoring, recording, and disclosure of telephone calls by the Henderson County Detention Center violated the Federal Wiretapping Act, 18 U.S.C. § 2510 et seq. Further, Defendant Lowas argues that the detention and search of the package he mailed exceeded the limits allowed under the Fourth Amendment to the United States Constitution. On August 11, 2004, a suppression hearing was held. There appeared Philip Chance for the United States; Jamie Haworth, counsel for Defendant, Claude Sutton; and Scott Cox, counsel for Defendant, Robert Lowas. The parties have filed supplemental briefs [DN 90, DN 91, DN 92]. Fully briefed and argued, this matter is ripe for decision. For the reasons set forth below, the motions by Defendants to suppress the evidence are denied.
I. MOTION TO SUPPRESS TELEPHONE CALLS
Defendants move to suppress the use at trial of recordings of telephone conversations between the defendants and others monitored and recorded by the Henderson County Detention Center while Defendant, Claude Sutton, was in custody on pending state charges. Between April 6 and April 28, 2003, Defendant Sutton made several phone calls to Shannon Peacock who on some occasions added Defendant Lowas to the calls using a three-way communication process.In April of 2003, the Kentucky State Police obtained information from a Henderson County man that while listening to a scanner, he overheard a conversation between an inmate at the Henderson County Detention Center and others indicating that a package containing narcotics would be delivered to a residence in Henderson County. Kentucky State Police Detective Bobby Murphy requested that Henderson County Detention Center officials review the recordings of inmate calls for reference to the package. Jail personnel located calls matching the description Detective Murphy gave them. Detective Murphy then went to the jail, listened to Defendant Sutton's phone calls, and obtained copies of the tapes.
Chief Deputy Jailer Ron Herrington of the Henderson County Detention Center testified that inmate phone calls at the Henderson County Detention Center are routinely recorded by a private telephone company under contract with the jail. Herrington testified that the policy of recording and monitoring inmate calls is part of the Rules, Policies, and Procedure of the jail. Specifically, the policy provides: "Note: All phones of the Henderson County Detention Center are subject to monitoring and/or taping." Herrington stated that this policy is published and placed in every cell. Further, Herrington testified that inspections of inmate cells are conducted three times daily at which time a check is made to insure the presence of a copy of the policy. In addition to the policy, there is a verbal warning audible to both the inmate and the call recipient at the beginning of each call which states in part, "This call is subject to monitoring and recording." Herrington testified recorded calls are reviewed when the security of the jail or community warrant.
DISCUSSION
Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq. (hereinafter "Federal Wiretapping Act") sets forth certain limitations on government interception and recording of private conversations. Title III of the Federal Wiretapping Act prohibits the unauthorized interception of "any wire, oral, or electronic communication" in the absence of judicial authorization. 18 U.S.C. § 2511(1). The statute provides that telephone communications intercepted in violation of Title III may not "be received in evidence in any trial. . . ." 18 U.S.C. § 2515. Courts have extended this protection to conversations by inmates on prison telephones.See United States v. Rivera, 292 F. Supp.2d 838, 841 (E.D. Va. 2003); United States v. Hammond, 286 F.3d 189, 192 (4th Cir.), cert. denied, 537 U.S. 900 (2002); United States v. Van Poyck, 77 F.3d 285, 291 (9th Cir. 1996), cert. denied, 519 U.S. 912 (1996); United States v. Paul, 614 F.2d 115, 116 n. 2 (6th Cir.), cert. denied, 446 U.S. 941 (1980). "Despite the statute's broad prohibition, the government may intercept telephone communications without prior judicial authorization in two contexts:" (1) "when `one of the parties to the communication has given prior consent to such interception'" and (2) "when the conversation is intercepted `by an investigative law enforcement officer in the ordinary course of his duties.'" Rivera, 292 F. Supp.2d at 841 (quoting 18 U.S.C. § 2511(2)(c) and 18 U.S.C. § 2510(5)(a)(ii)) .
Defendants argue that the Henderson County Detention Center officials unlawfully intercepted their conversations. The Government disagrees arguing that the detention center officials lawfully intercepted the conversations pursuant to the consent exception and the law enforcement exception to the Federal Wiretapping Act.
Consent Exception
The Federal Wiretapping Act's prohibition against the interception of wire, oral, or electronic communications does not apply when "one of the parties to the communication has given prior consent to such interception." 18 U.S.C. § 2511(2)(c). See also Hammond, 286 F.3d at 192; United States v. Faulkner, 323 F. Supp.2d 1111, 1117 (D. Kan. 2004). The consent exception is construed broadly. United States v. Amen, 831 F.2d 373, 379 (2d Cir. 1987), cert. denied, 485 U.S. 1021 (1988); United States v. Rittweger, 258 F. Supp.2d 345, 354 (S.D.N.Y. 2003). "Consent may be express or implied in fact from `surrounding circumstances indicating that the [defendant] knowingly agreed to the surveillance.'" Rivera, 292 F. Supp.2d at 844 (citing Van Poyck, 77 F.3d at 292). "In the prison context, when the facility has notified an inmate that his telephone calls may be recorded and monitored, the inmate's subsequent use of the telephone implies the requisite statutory consent to the recording and monitoring." Rivera, 292 F. Supp.2d at 844;Hammond, 286 F.3d at 192; Faulkner, 323 F. Supp.2d at 1117 (at outset of telephone call, the operator informs the recipient that this is a collect call and that the conversation is subject to monitoring and recording); United States v. Workman, 80 F.3d 688, 692-93 (2d Cir.) (finding consent even though appellant, having been warned of monitoring, was not specifically told that use of prison telephones constituted consent or that monitoring could include recording), cert. denied, 519 U.S. 955 (1996).
In the present case, Deputy Jailer Herrington testified that inmates at the facility are provided in their cell a copy of the jail policy that states that all phones are subject to monitoring and/or taping. Furthermore, Herrington testified that at the outset of a telephone call, both the inmate and the call recipient are made aware that the call is be subject to monitoring and recording. Clearly, Sutton was on notice of the jail policy to monitor and record phone calls. By proceeding with the conversations, Defendant Sutton impliedly consented to the recording of his telephone conversations. Rivera, 292 F. Supp.2d at 844.
However, Defendants argue that neither Defendant impliedly consented to the recordings because the jail's published policy and the audible warning only provided notice to Sutton that the conversations may be subject to monitoring and recording. Defendants contend that something more than the mere knowledge of the possibility of surveillance is necessary before an inmate's consent to recording his phone calls can be implied. See Campiti v. Walonis, 611 F.2d 387, 393 (1st Cir. 1979). This argument is contrary to the prevailing case law. Courts have consistently held that where a facility notifies an inmate that his telephone calls "may be recorded or monitored" or "are subject to recording or monitoring" and the inmate subsequently uses the phone, the inmate impliedly consents to the recording of his telephone conversations. See, e.g., Faulkner, 323 F. Supp.2d at 1118; Rivera, 292 F. Supp.2d at 845; Hammond, 286 F.3d at 192; Amen, 831 F.2d at 379.
Having concluded that Defendant Sutton impliedly consented to the recording of his telephone calls, the Court concludes that the recorded conversations satisfy the consent exception to the Federal Wiretapping Act and are not subject to suppression.
Due to the Court's decision with respect to the consent exception, the Court need not address the law enforcement exception.
II. MOTION TO SUPPRESS THE CONTENTS OF THE PACKAGE
On April 25, 2003, the Kentucky State Police received information from a neighbor of Shannon Peacock that a package containing an illegal controlled substance would be delivered to her residence. The neighbor indicated that while listening to his scanner, he had overheard a conversation between her and an inmate at the Henderson County Detention Center about the package. Kentucky State Police Detective Bobby Murray contacted the Henderson County Detention Center regarding the phone calls. A review of the inmate telephone calls revealed that Sutton, Shannon Peacock, and a man named "Rob" had participated in three-way telephone conversations in which Sutton had directed Rob to mail the package to Peacock. Kentucky State Police Sergeant Jeff Eastham contacted United States Postal Inspector Michael Eickhoff to inform him about the package. Postal Inspector Eickhoff issued a parcel alert for the package on April 25, 2003.On Saturday, April 26, 2003, Inspector Eickhoff received a call from the postmaster in Waverly that a package had arrived from California for the address. Inspector Eickhoff testified that he instructed the postmaster to hold on to the package until Monday, contacted Sergeant Eastham to let him know the package had arrived, contacted postal police officers in California to ascertain the return address, and contacted the Waverly, Kentucky, post office to ascertain the residents at the address on the package. On Monday, April 28, 2003, Inspector Eickhoff picked up the priority mail package, traveled to the Henderson State Police post, met with Sergeant Eastham and an officer with the Henderson City Police canine unit. The officers set out an array of packages which included the suspect package. The drug detection dog did not alert to the package. Inspector Eickhoff then returned the suspect package to the Smith Mills, Kentucky, post office for delivery that day.
After the drug detection dog failed to alert, KSP Detective Murray testified that he and Sergeant Eastham conducted a "knock and talk" at the residence in question. Detective Murray testified when Shannon Peacock answered the door, they identified themselves, explained to her why they were there, explained to her that she was not under arrest at that time, and communicated to her that they were interested in the package that was going to be delivered to her that day. Detective Murray stated that the officers asked Peacock if she knew what was going to be in the package. After initially answering no to the question, Peacock advised them that she thought there would probably be dope in it.
Detective Murray testified that the package was delivered to the mail box. The troopers asked Peacock to retrieve the package. Peacock retrieved the package and then gave it to Sergeant Eastham. Sergeant Eastham asked Peacock if she wanted to open it or if she wanted the troopers to open it. Peacock then told Sergeant Eastham to open it. The package contained methamphetamine. Defendant Lowas raises two issues with respect to the detention and subsequent search of the package.
DISCUSSION
First, Defendant Lowas contends that the amount of time postal authorities detained the package while investigating its contents was constitutionally unreasonable. "Individuals have a Fourth Amendment right to be free from unreasonable searches and seizures of items they place in the mail." United States v. Ganser, 315 F.3d 839, 842-843 (7th Cir.), cert. denied, 538 U.S. 939 (2003). See also United States v. Jacobsen, 466 U.S. 109, 114 (1984). "`However, upon reasonable suspicion that the package contains contraband, law enforcement authorities may detain the package for a reasonable length of time while investigating the package.'" Ganser, 315 F.3d at 843 (quotingUnited States v. Evans, 282 F.3d 451, 454 (7th Cir.), cert. denied, 537 U.S. 918 (2002)). Defendant Lowas raises two issues with respect to the package.
The Supreme Court in United States v. Place, 462 U.S. 696 (1983), stated:
[T]he brevity of the invasion of the individual's Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justifiable on reasonable suspicion. Moreover, in assessing the effect of the length of the detention, we take into account whether the police diligently pursue their investigation.Id. at 709. See also Ganser, 315 F.3d at 843.
In the present case, the package was received by the Waverly post office on Saturday, April 26, 2003 and was detained two days for the sole purpose of subjecting it to a canine sniff test. Once the canine failed to alert to the package, the package was delivered on Monday, April 28, 2003. Courts have previously held that a two-day detention of letters in order to subject them to a canine sniff test was brief enough to be sustained by reasonable suspicion. See United States v. Mayomi, 873 F.2d 1049, 1054 (7th Cir. 1989). See also Ganser, 315 F.3d at 844. Furthermore, the Court finds Inspector Eickhoff acted diligently. As discussed above, on April 26, 2003, Inspector Eickhoff who lives in Evansville, Indiana, received a call from the postmaster in Waverly, Kentucky, indicating that the package in question had arrived from California. Inspector Eickhoff instructed the postmaster to detain the package, contacted Sergeant Eastham to arrange for a canine detection unit, contacted postal police officers in the area of California to ascertain the return address, and contacted Waverly, Kentucky postal carriers to ascertain the residents at the address on the package. On Monday, April 28, 2003, Inspector Eickhoff traveled to Waverly, Kentucky, to obtain the package, transported it to Henderson County State Police Post, and conducted the canine sniff test. When the dog failed to alert, Inspector Eickhoff returned the package to the closest post office to the residence to insure delivery on Monday, April 28. Under these circumstances, the two day delay in delivering the package was not unconstitutionally unreasonable.See Mayomi, 873 F.2d at 1054; Ganser, 315 F.3d at 844.
Second, Defendant Lowas contends that Peacock was not the named recipient of the package and, as a result, could not authorize the police to open the package. Defendant contends that his Fourth Amendment rights continued in force until the package was delivered to the addressee, Anne Merrick. The Government disagrees arguing that once the package was delivered to Peacock's address, Lowas had no expectation of privacy in the package and, as a result, lacks standing to challenge the delivery of the package by Peacock to the police.
"A defendant objecting to a search bears the burden of proving a legitimate expectation of privacy in the area searched."United States v. Pitts, 322 F.3d 449, 456 (7th Cir.), cert. denied, 540 U.S. 849 (2003). A legitimate expectation of privacy exists when "the defendant exhibits a subjective expectation of privacy and the expectation is one that society is prepared to recognize as reasonable." Id. If a letter or a package "is sent to another, the sender's expectation of privacy ordinary terminates upon delivery." United States v. King, 55 F.3d 1193, 1196 (6th Cir. 1995).
While the Court finds that Lowas did have a legitimate expectation of privacy in the package while the package was in transit, that legitimate expectation ended when Peacock received the package. The record reflects that the intended recipient of the package was Shannon Peacock. Detective Murray testified that a review of Defendant Sutton's telephone calls revealed that Sutton had directed "Rob" to mail the package to Peacock at her residence. When questioned about the package, Peacock acknowledged to the troopers that the package probably contained narcotics. Clearly, this evidence demonstrates that Defendant Lowas at Sutton's direction mailed the package in question with the expectation that Shannon Peacock would receive the package containing the narcotics. Defendant's use of the name Anne Merrick was merely a subterfuge and the intended recipient was in fact Shannon Peacock. Therefore, once the intended recipient, Shannon Peacock, received the package, Defendant's expectation of privacy in the package ceased. As a result, the Court concludes that Defendant Lowas lacks standing to challenge the delivery of the package by Peacock to the troopers, and the contents of the package may not be suppressed.
CONCLUSION
For the reasons set forth above, the Court concludes that the officers actions did not violate the Federal Wiretapping Act or Defendant Lowas's Fourth Amendment rights and therefore, IT IS HEREBY ORDERED that the motions by Defendants to suppress the evidence [DN 62, DN 75] are denied.