Opinion
No. 18-30104
03-06-2019
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. WILLIAM PAUL COX, JR., Defendant-Appellant.
NOT FOR PUBLICATION
D.C. No. 6:17-cr-00004-CCL-1 MEMORANDUM Appeal from the United States District Court for the District of Montana
Charles C. Lovell, District Judge, Presiding Submitted March 4, 2019 Portland, Oregon Before: GRABER and BERZON, Circuit Judges, and TUNHEIM, Chief District Judge.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable John R. Tunheim, Chief United States District Judge for the District of Minnesota, sitting by designation. --------
William Cox, Jr. contends that the district court should have suppressed the recording of a phone call he placed from jail, information from which was used to secure a search warrant for his car. He argues the conversation was "a protected communication under the [Secured Communications Act (SCA)] or the Fourth Amendment," so "a warrant was required for law enforcement to lawfully access those recorded calls." We disagree and affirm.
1. Although the SCA prohibits "intentionally access[ing] without authorization a facility through which an electronic communication service is provided," or exceeding authorized access to that facility, to obtain access to electronic communication stored therein, 18 U.S.C. § 2701(a), suppression is not a remedy available for violations of those provisions. The statute provides that "[t]he remedies and sanctions described in this chapter are the only judicial remedies and sanctions for nonconstitutional violations of this chapter." Id. § 2708. Suppression is not among the remedies and sanctions described. Id. § 2701. For that reason, this circuit has long recognized that "the [SCA] does not provide an exclusion remedy. It allows for civil damages and criminal punishment but nothing more." United States v. Smith, 155 F.3d 1051, 1056 (9th Cir. 1998) (citations omitted).
2. The Fourth Amendment is no more help than the SCA to Cox. United States v. Van Poyck is clear that "any expectation of privacy in outbound calls from prison is not objectively reasonable and that the Fourth Amendment is therefore not triggered by the routine taping of such calls." 77 F.3d 285, 291 (9th Cir. 1996).
AFFIRMED.