614 F.2d 115 (6th Cir. 1980), 79-5061, United States v. Paul

Docket Nº:Susan PAUL (79-5061), Defendant-Appellant,
Citation:614 F.2d 115
Party Name:UNITED STATES of America, Plaintiff-Appellee, v.
Case Date:January 24, 1980
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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614 F.2d 115 (6th Cir. 1980)

UNITED STATES of America, Plaintiff-Appellee,

v.

Susan PAUL (79-5061), Defendant-Appellant,

and

Arnold Chester Pierce (79-5082), Defendant-Appellant.

Nos. 79-5061, 79-5082.

United States Court of Appeals, Sixth Circuit

January 24, 1980

Argued Oct. 9, 1979.

Edwin J. Walbourn, III, Lexington, Ky., for defendant-appellant in No. 79-5061.

Stephany Tsanges, Covington, Ky., for defendant-appellant in No. 79-5082.

Patrick H. Molloy, U.S. Atty., Robert F. Houlihan, Jr., Asst. U.S. Atty., Lexington, Ky., for plaintiff-appellee.

Before CELEBREZZE and KEITH, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

KEITH, Circuit Judge.

On March 30, 1978, Corrections Officers at the Ashland Kentucky Federal Correctional Institution monitored a telephone conversation between inmate Arnold Pierce and an unidentified female. 1 The Officers overheard Pierce tell the woman to "bring the material," and that he would "have the money." The next morning, Corrections Officers stopped and searched Pierce and removed a $5.00 bill from his person. In addition, one Susan Paul presented herself

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at the institution to visit Pierce. Paul was taken to the Warden's office and strip searched, but no contraband was found.

Later that day, Corrections Officers monitored a conversation between inmate Bill Grimes and a woman identified as Susan. The woman stated that she was scared in that she had been taken to the Warden's office, but that she "had ditched the stuff under the chair and they didn't find anything on her." The Warden's office was searched and a quantity of hashish found. Based largely on the above testimony, Pierce and Paul were tried and convicted of violating 18 U.S.C. § 1791, which makes it unlawful for anyone to introduce, on the grounds of a federal prison, anything contrary to a rule of the Attorney General.

The sole question raised on appeal is whether the district court erred in refusing to suppress testimony regarding the monitored telephone conversations. Defendants contend that the government monitoring violated Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510 Et seq. The issue before us is whether Title III applies to the monitoring of telephone calls to or from inmates at a prison and, if so, whether Title III was violated.

We note that defendants' claim is purely statutory. It still appears to be good law that so far as the Fourth Amendment is concerned, jail officials are free to intercept conversations between a prisoner and a visitor. This was the ruling in Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962) and it appears to have survived Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). See United States v. Hearst, 563 F.2d 1331, 1344-46 (9th Cir. 1977), Cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978).

Title III's broad prohibition on most forms of warrantless wiretapping presents a more troublesome issue, however. We do not question the government's need to monitor prisoners' telephone calls as a security measure. Cf. Procunier v. Martinez, 416 U.S. 396, 412, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). Nor do we doubt that the result of a ruling invalidating such monitoring would result in the elimination of telephone privileges for many prisoners. The problem is that Congress apparently never specifically considered the issue which is before us when it passed Title III. 2

The government takes the broad view that Title III does not apply at all because it was merely intended to codify the Supreme Court's constitutional decisions in Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), and Katz v. United States, supra. According to the government, surveillance which does not require a warrant under the Fourth Amendment should be automatically permissible under Title III.

We have problems with this view. It is true that Congress passed Title III in response to Berger and Katz. However, the statutory language speaks for itself and covers areas not addressed in Berger or Katz. See e. g. Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978) (construing Title III's requirement that agents minimize the interception of irrelevant conversations); United States v. Donovan, 429 U.S. 413, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977) (construing Title III's requirements that the government identify probable wiretap subjects and that it give subsequent notice to those whose conversations were intercepted); United States v. Giordano, 416 U.S. 505, 94 S.Ct. 1820, 40

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L.Ed.2d 341 (1974) (construing Title III's requirements that the Attorney General or a specifically designated Assistant Attorney General approve a wiretap application); United States v. Chavez, 416 U.S. 562, 94 S.Ct. 1849, 40 L.Ed.2d 380 (1974) (same); Gelbard v. United States, 408 U.S. 41, 92 S.Ct. 2357, 33 L.Ed.2d 179 (1972) (construing Title III's requirement that no illegally overheard information be used by a grand jury).

The government relies upon Zweibon v. Mitchell, 170 U.S.App.D.C. 1, 21 n.46, 516 F.2d 594, 614 n.46 (D.C.Cir.1975) (en banc), Cert. denied, 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976) where the court stated that where "no warrant is constitutionally mandated, Congress did not intend to impose a statutory warrant requirement." However, that case dealt only with Title III's express national security wiretap exemption, 18 U.S.C. § 2511(3) and its specific legislature history. It is clear that so far as national security wiretapping is concerned, Congress meant for Title III to be coextensive with the Constitution. 3 There is no indication in Title III that Congress had the same intention regarding prison wiretapping.

The district court took the view that Title III did apply, but that the prison monitoring was excepted under 18 U.S.C. § 2510(5)(a) which excludes from the ambit of Title III the interception of communications over equipment used by "an investigative or law enforcement officer in the ordinary course of his duties . . ." See 1968 U.S. Code Congressional and Administrative News, pp. 2112, 2178-79.

We agree with the district court. The monitored calls in this case came in over the prison switchboard and were then routed to telephones provided for inmate use within the institution. The district court found that the telephone monitoring took place pursuant to a policy statement issued by the Federal Bureau of Prisons as well as local prison rules. Although the issue was disputed, the court found that the telephone rules were posted and that the inmates had reasonable notice that monitoring of telephone conversations might occur.

Under these circumstances, we conclude, as did the district court, that the monitoring took place within the ordinary course of the Correctional Officers' duties and was thus permissible under 18 U.S.C. § 2510(5)(a). This factual situation distinguishes the only other case we have found on the prison wiretapping question, Campiti v. Walonis, 453 F.Supp. 819 (D.Mass.1978), Aff'd, 611 F.2d 387 (1st Cir. 1979). There, the monitoring was not shown to be related to prison security and was not done pursuant to a posted prison regulation. See also United States v. Harpel, 493 F.2d 346 (10th Cir. 1974) (telephone extension at police station could not be used to record a private conversation between two other law enforcement officers without authorization or consent.) Compare Briggs v. American Air Filter Co., 455 F.Supp. 179 (N.D.Ga.1978) (company's surreptitious monitoring of one of its extension phones permissible because it was done in the ordinary course of its business.)

District Judge Hermansdorfer properly denied the motion to suppress. The judgments of conviction are affirmed.

HARRY PHILLIPS, Senior Circuit Judge (concurring in the result).

While I agree with the majority opinion that the district court properly denied the defendants' motion to suppress, I do so on different grounds than those expressed in the majority opinion. I am convinced that Congress never intended Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-20 (herein cited as Title III) to apply to prisons. Accordingly, I would hold that the warrantless monitoring in this case did not violate Title III, regardless of whether it can be said to fall within the language of one of the statutory exceptions.

Congress enacted Title III with the dual purpose of

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(1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized. S.Rep. No. 1097, 90th Cong., 2d Sess. (1968), Reprinted in (1968) U.S.Code Cong. & Admin.News pp. 2112, 2153 (hereinafter cited as S.Rep. No. 1097 with page references...

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