Opinion
Criminal Action No. 01-282 SECTION "R"(1)
February 25, 2003
ORDER AND REASON
Before the Court is the motion of defendants Johnny Davis and Richard Porter to suppress wiretap evidence and dismiss the second superseding indictment on the grounds that the wiretaps were not properly authorized under Louisiana or federal law and that the wiretaps were unlawfully monitored by private contractors under Louisiana law. Defendants argue that the wiretap evidence and any evidence derived therefrom must be suppressed.
For the following reasons, the Court DENIES defendants' motion.
I. BACKGROUND
In September of 2000, the New Orleans Police Department ("NOPD") began investigating the suspected drug-distribution activities of defendant Richard Porter. In January of 2001, officers in the High Intensity Drug Trafficking Area task force ("HIDTA") received state court authorization to intercept and monitor Porter's telephones.
State Trooper David Nunez, who had been assigned to HIDTA in January of 2001, signed the wiretap applications as the affiant. As the police case agent, Nunez was responsible for the confidential informant, all the signatures, and the chain of command. See State v. Terrell et al., Cr. No. 421-270 (La. Cr. Dist. Ct. On. Par. 2001) (testimony at November 6, 2001 suppression hearing). The applications requested authorization for the Louisiana State Police, Drug Enforcement Agency ("DEA") agents and intelligence analysts, Jefferson Parish Sheriff's Office deputies, NOPD officers, and contracted monitors of the Lafayette Group to intercept and listen to wire and oral communications to and from Porter's telephones. (Def.'s Exs. 235A, 235C, 236A, 237A.) Each of the applications was signed on the line for Richard Ieyoub, the Louisiana State Attorney General("AG"), by Assistant Attorney General Julie Cullen ("AAG"), who heads the criminal division and was designated by Ieyoub to review and approve state wiretaps. ( Id.) The wiretaps were authorized by three neutral state judges.
The applications were also signed by District Attorneys and First Assistant District Attorney, which defendant does not raise as an issue.
The Lafayette Group is a private company, comprised largely of retired federal agents, which contracted with the Louisiana State Police to monitor the wiretaps and transcribe the information. Nunez had worked with the Lafayette Group in past investigations. See Terrell, Cr. No. 421-270. The Lafayette monitors worked at HIDTA's office under the supervision of Nunez. See id. Before setting up the Porter wiretaps, an assistant district attorney lectured the Lafayette monitors on minimization requirements while Nunez was present. See id. Nunez and other law enforcement agents observed the work of the Lafayette monitors, who were located in HIDTA's office. See Id. Each day, Nunez reviewed the Lafayette monitors' synopses of intercepted calls and analyzed "live" information to ensure that the synopses were written correctly. See id. Nunez produced regular reports summarizing the monitors' work. See id. The defendants do not contest that the Lafayette Group was properly supervised by Nunez.
As a result of the wiretaps, Porter and others were arrested in February of 2001. In state court, those defendants moved to suppress the wiretaps on the grounds that the wiretap applications were improperly authorized by the AAG and improperly monitored by private contractors. After the November 6, 2001 suppression hearing, the state court granted defendants' motion to suppress the wiretap evidence. On September 11, 2002, the Louisiana Court of Appeals reversed, finding the wiretaps legally authorized and monitored. See State v. Terrell et al., 825 So.2d 1279 (La. 4th Cir. Ct. App. 2002). The appeals court, however, recently decided to reconsider its opinion to allow several defendants to submit briefs.
On October 12, 2001, a federal grand jury indicted Richard Porter, Johnny Davis, and others for allegedly committing various federal crimes, including conspiracy to distribute heroin, conspiracy to distribute heroin using juveniles, and conspiracy to carry firearms. The grand jury also charged Davis with using a firearm to further the drug trafficking conspiracy and, in doing so, murdering four people. The government and Davis dispute whether the wiretaps or an independent, unrelated investigation led to his arrest and indictment. Nevertheless, Davis has standing as an "aggrieved person" to challenge the admissibility of the wiretap evidence because he was a participant in wiretapped conversations with Porter. See United States v. Kelley, 140 F.3d 596, 604 n. 7 (5th Cir. 1998) (citing United States v. Scasino, 513 F.2d 47 (5th Cir. 1975)). In their motion to suppress, Davis and Porter raise the grounds of improper authorization and improper monitoring.
Regardless of the status or outcome of the state proceedings in the matter, this Court must conduct an independent inquiry into the legality of the wiretaps. See Elkins v. United States, 364 U.S. 206, 223-24 (1960) ( quoted In United States v. Charles, 213 F.3d 10, 19 (1st Cir. 2000)).
II. DISCUSSION
2. Applicable Law
A. Authorization of Wiretap Application by the Assistant Attorney General
Federal law governs the admissibility of state-authorized wiretap evidence in federal criminal cases. See United States v. Nelligan, 573 F.2d 251, 253-54 (5th Cir. 1978) (citing Lee v. United States, 343 U.S. 747, 754-55, 72 S.Ct. 967, 972, 96 L.Ed. 1270 (1952); Olmstead v. United States, 277 U.S. 438, 48 5. Ct. 564, 72 L.Ed. 944 (1928)). Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510, et seq. ("Title III"), however, provides that state court authorizations of wiretap interceptions must be in conformity with applicable federal and state law. Title III provides:
The principal prosecuting attorney of any State, or the principal prosecuting attorney of any political subdivision thereof, if such attorney is authorized by a statute of that State to make application to a State court judge of competent jurisdiction for an order authorizing or approving the interception of wire, oral, or electronic communications, may apply to such judge for, and such judge may grant in conformity with section 2518 of this chapter and with the applicable State statute an order authorizing, or approving the interception of wire, oral or electronic communications by investigative or law enforcement officers having responsibility for the investigation of the offense as to which the application is made. . . .18 U.S.C. § 2516(2) (West 2000) (emphasis added); see also Nelligan, 573 F.2d at 254 ("[T]he federal statute includes the relevant state law in the context of state court authorizations.") Some circuits have read this provision of Title III to mean that when a state court authorizes a wiretap for a state officer, state law governs the validity of the wiretap when state law is more stringent than Title III. See United States v. Glinton, 154 F.3d 1245, 1252-53 (11th Cir. 1998); United States v. Tavarez, 40 F.3d 1136, 1137 (10th Cir. 1994) (quoting United States v. McNulty, 729 F.2d 1243, 1266 (10th Cir. 1983) (en banc)); United States v. Butz, 982 F.2d 1378, 1382 (9th Cir. 1993). The Second Circuit has offered a more nuanced approach: a court must apply "only those more stringent state statutory requirements or standards that are designed to protect an individual's right of privacy, as distinguished from procedural rules that are essentially evidentiary in character." United States v. Miller, 116 F.3d 641, 661 (2d Cir. 1997) (citing United States v. Sotomayor, 592 F.2d 1219 (2d. Cir. 1979)).
In this case, the surveillance task force consisted of federal and state officers, even though a state officer applied for the wiretap. The Fifth Circuit has not addressed whether state statutory wiretap standards are applicable in this situation. In United States v. Glinton, the Eleventh Circuit confronted similar facts and decided to defer to state law for purpose of the appeal despite the presence of federal officers in the task force. See Glinton, 154 F.3d at 1252-53 (citing United States v. Bascaro, 742 F.2d 1335, 1347 (11th Cir. 1984)). In the absence of Fifth Circuit authority, this Court will follow the Eleventh and Second Circuits and defer to more stringent state law to the extent that it is designed to protect an individual's right of privacy, but not more stringent state law that consists of procedural rules essentially evidentiary in character.
2. Title III and the Louisiana Electronic Surveillance Act
The authorization section of the Louisiana Electronic Surveillance Act ("the state Act") in effect at the time Porter's wiretaps were authorized provides:
The attorney general, with the approval of the district attorney . . . and the district attorney, with the approval of the attorney general, may authorize an application to a judge . . . and such judge may grant in conformity with R.S. 15:1310 an order authorizing or approving the interception of wire or oral communications by an investigative or law enforcement officer having responsibility for the investigation of the offense as to which the application is made. . . .
LA. REV. STAT. ANN. § 15:1308(A) (West 1992) (emphasis added). Defendants contend that the government violated both Title III and the state Act when the Assistant Attorney General, rather than the Attorney General, signed the wiretap applications. Specifically, defendants argue that Title III was violated because it permits only the "principal prosecuting attorney of a state," not any members of his or her office, to authorize a wiretap application. Similarly, defendants argue that the state Act was violated because it permits only the Attorney General, not any members of his or her office, to authorize a wiretap application.
Although it is true that Title III provides that the "principal prosecuting attorney" of a state must authorize the wiretap application, the legislative history of Title III indicates that Congress did not intend to prohibit the states from delegating that authority. Rather, Congress intended to centralize wiretap authority within each state:
The issue of delegation by [the principal prosecuting attorney] would be a question of State law. The intent of the proposed provision is to provide for the centralization of policy relating to statewide law enforcement in the area of the use of electronic surveillance in the chief prosecuting officer of the State. Who that officer would be would be a question of State law. . . .
S. REP. No. 90-1097 (Apr. 29, 1968). This statement indicates that Congress' goal of centralization was not intended to limit the states' power to delegate the principal prosecuting officer's authority. Further, on the federal level, Congress has significantly expanded the list of who is permitted to authorize federal wiretaps. See 18 U.S.C. § 2516(1); Pub.L. 98-473, Title II, § 1203(c), Oct. 12, 1984, 98 Stat. 2152; Pub.L. 99-508, Title I, §§ 101(c)(1)(A), 104, 105, Oct. 21, 1986, 100 Stat. 1851, 1855; Pub.L. 103-414, Title II, § 208, Oct. 25, 1994, 108 Stat. 4292. For example, Title III originally allowed only the Attorney General and a specially designated Assistant Attorney General to authorize wiretaps. It now grants that power to the Attorney General, the Deputy Attorney General, the Associate Attorney General, any Assistant Attorney General, any acting Assistant Attorney General, any Deputy Assistant Attorney General, and any acting Deputy Assistant Attorney General. These changes demonstrate that Congress intended to extend the power to authorize wiretaps to identifiable officials in positions of trust within the AG's office. See United States v. Nanfro, 64 F.3d 98 (2d Cir. 1995) ("The purpose of restricting the authorization power in this manner is 'to assure that an accountable and identifiable person actually reviews wiretap requests'. . . . The statute requires that each of the officials be able to trace his or her explicit authority, by designation, to the Attorney General. . . ." (quoting United States v. Anderson, 39 F.3d 331, 339 (D.C. Cir. 1994)); United States v. Monarrez-Cano, 2002 U.S. Dist. LEXIS 12561, *8-9 (D. Neb. 2002); United States v. Wright, 156 F. Supp.2d 1218, (D. Nan. 2001) (holding that, under federal authorization section of Title III, application signed by designee of Attorney General was valid because signature served purpose of limiting that authority to identifiable official in position of trust).
Unlike Title III, the state Act is silent as to the Attorney General's or District Attorney's ability, if any, to delegate authority. But the Louisiana Code of Criminal Procedure provides generally for the delegation of duties by officials in the state's criminal justice system to assistants and deputies. In a chapter entitled "Preliminary Provisions and Rules of Construction," the Code provides: "Unless the context clearly indicates the contrary, official titles, such as clerk of court, coroner, district attorney, and sheriff, include assistants and deputies." LA. CODE CRIM. P. art. 8 (West 1991). The official comment to this section states, "This article codifies the well established general principle that assistants and deputies may perform the duties of officials under whom they serve." Id. art. 8 official rev. cmt; see also State v. Refuge, 300 So.2d 489, 490-91 (La. 1974) (holding that, under article 8, the requirement that a bill of information be signed by the district attorney was satisfied by the signature of the assistant district attorney) Although this provision does not mention the Attorney General, the legislature's use of the words "such as" in the list of official titles in Article 8 makes clear that the list is intended to be non-exhaustive and illustrative. Further, the Criminal Code specifies that the Attorney General supervises all state criminal prosecutions and all district attorneys. LA. CODE CRIM. P. arts. 61, 62.
Other provisions of Louisiana law make clear that the Attorney General is expressly authorized to carry out his or her duties through officers in his or her department. The Louisiana Revised Statutes provide, "The Department of Justice, through its offices and officers, shall be responsible for performing the functions of the attorney general." LA. REV. STAT. ANN. § 36:701(C). The statute creates officers who are the directors of the specific divisions comprising the Department of Justice. Id. § 36:701(E). The criminal division is one of these specific divisions. Id. § 36:701(D). Thus, the authorization of defendants' wiretaps by Assistant Attorney General Julie Cullen, who is the director of the criminal division and was designated by the Attorney General to review and approve wiretaps, was consistent with the provisions of this statute.
Finally, the Louisiana Constitution provides that the Attorney General of Louisiana heads the Department of Justice and is the chief legal officer of the state. The Attorney General has a broad range of duties, including:
(1) to institute, prosecute, or intervene in any civil action or proceeding;
(2) upon the written request of a district attorney, to advise and assist in the prosecution of any criminal case; and
(3) for cause, when authorized by the court which would have original jurisdiction and subject to judicial review, (a) to institute, prosecute, or intervene in any criminal action of proceeding, or (b) to supersede any attorney representing the state in any civil or criminal action.
LA. CONST. art. IV § 8 (West 1996). Given the breadth of the AG's authority and scope of his or her duties, it is reasonable to conclude that the Louisiana legislature did not expect him or her to personally authorize every wiretap application.
Underlying the Court's consideration of the state Act, article 8 of the Louisiana Criminal Code, section 710 of the Louisiana Revised Statutes, and article 4 of the Louisiana Constitution, is the principle that statutes should be read together harmoniously when possible. See Johnson v. Collector of Revenue, 165 So.2d 466, 470 (La. 1964). This principle is limited by the well-settled rule that, when one statute contains a specific provision which conflicts with a more general provision, the specific provision controls. See Fourco Glass Co. v. Transmirra Products Corp., 353 U.S. 222, 228-29, 77 S.Ct. 787, 791, 1 L.Ed.2d 786 (1957). In this case, the state Act, the Louisiana Criminal Code, the Louisiana Revised Statutes, and the Louisiana Constitution may be read together harmoniously, because the state Act has no specific provisions limiting or proscribing the Attorney General's ability to delegate.
There is no legislative history suggesting that when the Louisiana legislature adopted the state Act, it intended to forbid delegation. Defendants point to Louisiana's recent amendment of the state Act to include assistant and deputy attorneys general as evidence that the legislature did not intend for assistants and deputies to authorize wiretaps under the earlier version of the Act. The legislative history available for this amendment reveals only the legislature's intent to revise several statutes to include terrorism as an act or crime, and unfortunately offers no insight as to why the legislature expanded this particular section of the Act. Under appropriate canons of statutory interpretation, it is reasonable to conclude, in the absence of any legislative history, that an amendment was intended to clarify, rather than change, a law. See, e.g., NCNB Texas Nat'l Bank et al. v. Cowden, 895 F.2d 1488, 1500 (5th Cir. 1990) (quoting United States v. Montgomery Cty., Md., 761 F.2d 998, 1003 (4th Cir. 1985)) ("A number of courts have recognized that 'changes in statutory language need not ipso facto constitute a change in meaning or effect.' . . . Indeed, a legislative body may amend statutory language to 'make what was intended all along even more unmistakably clear.'") Further, the Fifth Circuit has stated that relying on subsequent legislative action to determine the meaning of an earlier statute is hazardous. See id. at 1500 (citing Brown v. Marquette Sav. Loan Ass'n, 686 F.2d 608, 615 (7th Cir. 1982)). Thus, the Court does not accept defendants' assertion that the Louisiana legislature's recent amendment to the Act demonstrates that, under the earlier version, assistants and deputies were forbidden to authorize wiretap applications.
Defendants point to no Fifth Circuit or Louisiana Supreme Court authority contrary to this Court's interpretation of the state Act. Rather, defendants cite to United States v. Giordano, 416 U.S. 505 (1974), in which the Supreme Court strictly interpreted Title III's federal wiretap authorization provision as it existed in 1974. The Court held that the words "Attorney General, or any Assistant Attorney General specially designated by the Attorney General," excluded delegation to an Executive Assistant to authorize a wiretap. Giordano, 416 U.S. at 1825-26. The Court found unavailing that the United States Code provided that "the Attorney General may from time to time make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General." 28 U.S.C. § 510. The Court disregarded this delegation provision because it found that the language of Title III evinced the legislature's clear intent to restrict the Attorney General's power of delegation to a specially designated assistant attorney general, which the general delegation statute could not supersede.
Giordano is distinguishable from this case because, unlike the statute in Giordano, the Louisiana Electronic Surveillance Act in effect at the time of the wiretap applications in issue did not contain any language restricting the Attorney General's authority to delegate to specific underlings or requiring a specific delegation procedure such as a "special designation." In the absence of any statutory language circumscribing delegation, Louisiana's general delegation statutes are applicable. Further, the general delegation provision in the United States Code, which the Supreme Court found inapplicable in light of the restrictive language of Title III, was so broad as to authorize the Attorney General at his discretion to delegate any departmental function to any employee in the Department of Justice. The Louisiana Criminal Code provision, on the other hand, provides that only a public official's "assistants and deputies" are intended to be included when the Code refers to an official by title. Moreover, section 701 of the Revised Statutes provides for delegation to "officers" in the Department of Justice, including the head of the criminal division. These are identifiable individuals in positions of trust. Moreover, Congress responded to Giordano's strict interpretation of Title III's authorization section by amending the statute to expand broadly the Attorney General's authority to delegate to include assistants, deputies, associates, and acting assistants, deputies, and associates.
Defendants also rely on United States v. Houltin, 525 F.2d 943 (5th Cir. 1976), in which the Fifth Circuit mentions in a footnote that the district court had found the state wiretaps unlawful "apparently because of noncompliance" with Title III because the wiretap applications were signed by the assistant district attorney instead of the district attorney. The issue of the validity vel non of the state wiretap was not before the Fifth Circuit, and it made no ruling on this issue. Houltin is not helpful here.
For the foregoing reasons, the Court finds that the Attorney General Richard Ieyoub's designation of his Assistant Attorney General Julie Cullen to sign state wiretap applications was a permissible delegation under Title III and under the Louisiana Electronic Surveillance Act when read in conjunction with the Louisiana Code of Criminal Procedure, the Louisiana Constitution, and the Louisiana Revised Statutes. Further, even if the Louisiana legislature intended for the state Act to set forth more stringent requirements than Title III, such that Ieyoub himself must sign all state wiretap applications, the Court would not defer to this stringency because it is not necessary to protect an individual's right of privacy. See United States v. Miller, 116 F.3d 641, 661 (2d Cir. 1997). In other words, the Court finds that the Attorney General's delegation to identifiable officials in positions of trust does not trigger privacy concerns.
B. Private Monitoring
Title III and the state Act contain parallel separate sections governing the interception of communications: one section on authorization and one section on procedure. The authorization sections of the statutes contain almost identical language permitting a judge to authorize or approve the interception by an investigative or law enforcement officer "having responsibility for the investigation of the offense." 18 U.S.C. § 2516(2); LA. REV. STAT. ANN. § 15:1308(A). The procedure sections are also substantially similar in their delineation of the role of the investigative or law enforcement officer in the application, or authorization, process and the role of an agency in the interception, or monitoring, process. Title III provides:
Each application for an order authorizing or approving the interception . . . shall include . . . the identity of the investigative or law enforcement officer making the application, and the officer authorizing the application.
. . .
Each order authorizing or approving the interception shall specify . . . the identity of the agency authorized to intercept the communications, and of the person authorizing the application . . .18 U.S.C. § 2518(1)(a), 2518(4)(d). The state Act provides:
A. Each application shall include the following information:
(1) The identity of the investigative or law enforcement officer making the application and the person authorizing the application.
D. Each order authorizing or approving the interception of any wire or oral communication shall specify:
(4) The identity of the agency authorized to intercept the communications, the person applying for the application, and the person authorizing the application.
LA. REV. STAT. ANN. § 1310(A), (D). Read together, the authorization and procedure sections of each statute clearly require that an investigative or law enforcement officer having responsibility for the investigation make, or originate, the wiretap application. The state Act defines "investigative or law enforcement officer" as follows:
[A]ny commissioned state police officer of the Department of Public Safety and Corrections who, in the normal course of his law enforcement duties, is investigating an offense enumerated in this Chapter, and the district attorney authorized by law to prosecute or participate in the prosecution of such offense.
LA. REV. STAT. ANN. § 1302(12).
The procedure sections of each statute contemplate that, while an individual law enforcement officer must apply for wiretap authorization, an "agency" may intercept, or monitor, the wiretaps. The language and organization of the statutes make clear the legislature intended to extend the interception and monitoring authority to the entire agency, not just to the officer who applies for the wiretap order.
Neither statute defines agency. In a subsection of its procedure section, Title III explicitly permits supervised private monitoring of wiretaps:
An interception . . . may be conducted in whole or in part by Government personnel, or by an individual operating under a contract with the Government, acting under the supervision of an investigative or law enforcement officer authorized to conduct the interception.18 U.S.C. § 2518(5). The state Act contains no such provision. The state Act, however, does not require a listing of every person within the agency who will monitor a wiretap and does not restrict monitoring to the law enforcement officer originating the wiretap application. The state Act does not expressly forbid the agency to use contractors under its supervision.
In this case, David Nunez, a comissioned state police officer responsible for the investigation, signed the wiretap applications and requested authority for the Louisiana State Police and "contracted monitors of the Lafayette Group" to monitor the wiretaps. It is undisputed that the members of the Lafayette Group were not commissioned state police officers. It is also undisputed that. Nunez and the assistant district attorney trained the Lafayette Group members, and that Nunez and other law enforcememt officers supervised their work. Under Title III, the wiretap orders are lawful because an investigative or law enforcement officer made the wiretap applications, and the private contractors who conducted the interceptions were under his supervision.See id. The issue before the Court, therefore, is whether the wiretap orders were lawful under Louisiana law.
Although there are no cases interpreting this section of the state Act, the Court notes that the Louisiana Court of Appeals recently upheld the convictions of several defendants whose wiretaps were monitored by the Lafayette Group, a fact that was known to that court. See State v. Esteen, III, 821 So.2d 60 (La. 5th Cir. Ct. App. 2002); State v. Decay, 798 So.2d 1057 (La. 5th Cir. Ct. App. 2001); State v. Richardson, 795 So.2d 477 (La. 5th Cir. Ct. App. 2001). The appeals court in one case heard extensive testimony from members of the Lafayette Group to determine whether they properly sealed wiretaps according to the requirements of the state Act. See Esteen, 821 So.2d at 72-73. That the Lafayette Group's extensive involvement in the wiretap interceptions was assumed to be proper in these cases, and only its conduct in sealing the wiretaps was questioned, suggests that Louisiana courts do not view the use of contracted monitors as violative of the state Act.
These cases are not dispositive, however, and the Court must interpret the state Act's provisions in accord with their plain meaning and in context. See LA. REV. STAT. ANN. § 14:3 (West 1997). Arguably, the Court could interpret the statute to encompass not only an agency's direct employees, but also persons with whom the agency contracts to carry out its work. Under this line of reasoning, it an agency contracts with private monitors and trains and supervises them, their work is the work of the agency itself, and the agency is responsible for it. Clearly the three judges who issued the wiretap orders did not find it problematic when they were informed that the Lafayette Group would participate in the interception and monitoring. On the other hand, the state Act is arguably more restrictive than Title III, because it does not expressly permit monitoring by state-supervised private contractors and because it bans all electronic eavesdropping not authorized by the Act.
The Court need not resolve whether the use of private monitors was a technical violation of the state Act, because under State v. Neisler, 666 So.2d 1064 (La. 1996), suppression is not required. On original hearing in Neisler, the Louisiana Supreme Court suppressed evidence obtained from wiretaps because the officers had failed to comply with the state Act's mandatory requirement that the officers present their confidential informant to the issuing judge. See State v. Neisler, 655 So.2d 252 (La. 1995) On rehearing, the court recognized that the officers had technically violated the state Act. See Neisler, 666 So.2d at 1068. The court held, however, that "the necessity for suppressing evidence under the exclusionary rule of Section 1307 is an entirely separate question." Id. The court further held, "The crucial issue becomes whether evidence must be suppressed . . . in every case of a failure to follow every statutory requirement [of the pertinent section of the state Act] in obtaining a wiretap order." Id. In reversing its prior holding, the court relied on case law in which the court had recognized that a search warrant may be valid even when the supporting affidavit contained inaccurate information, if suppressing the evidence would not deter deliberate and fraudulent police behavior. See id. (citing State v. Rey, 351 So.2d 489 (La. 1977)). The Neisier court concluded that it must arrive at a "reasonable and just accommodation between an accused's interest in limiting invasions of his or her privacy to those based upon a magistrate's determination of probable cause and society's interest in using reliable evidence to convict those who violate criminal laws." Id. (emphasis in original) (citing State v. Lehnen, 403 So.2d 683, 686 (La. 1981)). Finally, in affirming the court of appeals' decision not to suppress evidence, the court stated that suppression "is simply too high a price to pay to assure technical compliance with a statute whose purpose was otherwise served by the commendable police work in the present case." Id. at 1069.
Section 1307 provides:
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 . . . if the disclosure of that information would be in violation of this Chapter.
LA. REV. STAT. ANN. § 1307(A). The state Act delineates three scenarios when a motion to suppress may lie: (1) the communication was unlawfully intercepted; (2) the order of authorization or approval was facially insufficient; or (3) the interception was not made in conformity with the order of authorization or approval. LA. REV. STAT. ANN. § 15:1310(H)(1).
In this case, there is no issue of abuse or incompetence by the Lafayette contract monitors. Their participation was disclosed to three judges. Earlier state cases show that the propriety of their participation in wiretap monitoring was not questioned. They were bound by the same rules that would have applied if the agency's direct employees did the monitoring. There is simply no qualitative difference in privacy terms between monitoring by direct employees of an agency and monitoring by contract personnel who were qualified by experience and were trained and supervised by law enforcement agents. Further, there is no evidence of an intention to deceive or to engage in abusive conduct by Nunez or any other law enforcement agents involved in the wiretaps. The purpose of the exclusionary rule — to deter police misconduct — would not be furthered by suppression in this case.
This analysis is consistent with federal law holding that suppression is not necessary for technical violations of Title III requirements. Title III and the state Act contain identical language regarding suppression of unlawfully intercepted evidence. See supra n. 3; 18 U.S.C. § 2515, 2518(10)(A). In United States v. Giordano, 416 U.S. 505 (1974), the Court held that "Congress intended to require suppression where there is failure to satisfy any of those statutory requirements that directly and substantially implement the Congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device." 416 U.S. at 527 (emphasis added). Further, in United States v. Chavez, 416 U.S. 562 (1974), the Court stated,
Though we rejected, in Giordano, the Government's claim that Congress intended 'unlawfully intercepted' communications to mean only those intercepted in violation of constitutional requirements, we did not go so far as to suggest that every failure to comply fully with any requirement provided in Title III would render the interception of wire or oral communications 'unlawful'.416 U.S. at 574-75; see also United States v. Moore, 41 F.3d 370, 374-75 (8th Cir. 1994) (citing cases) (declining to suppress based on absence of judge's signature and declining to elevate form over substance); United States v. Caggiano, 667 F.2d 1176, 1179 (5th Cir. 1982) (declining to suppress based on government's failure to seal and maintain wiretap applications and orders pursuant to Title III; "technical noncompliance necessitates suppression, however, only if the violated procedure is a central or a functional safeguard in the statutory scheme to prevent abuses of the wiretap act and if the purpose of the procedure has been frustrated or the procedure has been deliberately ignored") (citing United States v. Diana, 605 F.2d 1307, 1312 (9th Cir. 1979)).
Finally, federal courts have applied the "good faith" exception to the Fourth Amendment's exclusionary rule set forth in United States v. Leon, 468 U.S. 897 (1984) to the statutory exclusionary rule found in Title III. See, e.g., United States v. Millan, 817 F. Supp. 1072, 1078 (S.D.N.Y. 1993), rev'd on other grounds, 4 F.3d 1038 (2d Cir. 1993); United States v. Ferrara, 771 F. Supp. 1266, 1314-16 (D. Mass. 1991). Under Leon, the Supreme Court "has repeatedly stated that the principal purpose of the Fourth Amendment's exclusionary rule is to eliminate incentives for police officers to violate that Amendment." New York v. Harris, 495 U.S. 14, 22 (1990) (citing Leon, 468 U.S. at 906). Thus, under federal law, suppression is not required if the officers "acted in the objectively reasonable belief that their conduct did not violate the Fourth Amendment." United States v. Malekzadeh, 855 F.2d 1492, 1497 (11th Cir. 1988) (citing Leon, 468 U.S. 897). Here, the officers' conduct did not rise to the level of a constitutional violation, and the officers had an objectively reasonable basis to believe that they were not violating defendants' constitutional rights.
In light of the foregoing case law, even if delegation by the Attorney General and private monitoring were not permitted under the state Act, these insufficiencies would not require suppression.
III. CONCLUSION
For the foregoing reasons, the defendants' motion is DENIED.