U.S. v. Suarez
| Citation | 906 F.2d 977 |
| Decision Date | 27 June 1990 |
| Docket Number | D,Nos. 89-5169,LUCERO-ROMER,89-5170,s. 89-5169 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Luis Angel SUAREZ, a/k/a Luis Angel Suarez-Perez, a/k/a Luis Gonzales, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jesusefendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
George Alan DuBois, Jr., Asst. Federal Public Defender, Raleigh, N.C., argued (William E. Martin, Federal Public Defender, Jill M. Wichlens, Asst. Federal Public Defender, Raleigh, N.C., Herman E. Gaskins, Jr., Washington, D.C., on brief), for defendants-appellants.
Thomas Michael Gannon, U.S. Dept. of Justice, Washington, D.C., argued (Sidney Glazer, U.S. Dept. of Justice, Washington, D.C., Margaret Person Currin, U.S. Atty., Raleigh, N.C., on brief), for plaintiff-appellee.
Before RUSSELL, PHILLIPS, and CHAPMAN, Circuit Judges.
Luis Suarez and Jesus Lucero-Romero appeal from the judgment entered after their conviction on multiple narcotics charges following a bench trial. Appellants and a third defendant, Victor Zarate-Lopez, were arrested and charged after police, using a "clone" pager, intercepted numbers transmitted to Suarez's pager from various telephones. Appellants moved in district court to suppress evidence obtained as a result of the interception of the electronic communications, arguing that the interceptions violated the Electronic Communications Privacy Act of 1986. The district court rejected that argument, holding that the Act was inapplicable to appellants' case. In the event that the Act was applicable, the court held that recording the intercepted communications was not possible and, alternatively, that the state authorities had satisfactorily explained their failure to comply with the Act's proscriptions. We affirm on the narrow ground that recording was not possible within the meaning of the Act.
On September 22, 1988, a Wake County, North Carolina, assistant district attorney filed a petition in Superior Court seeking authorization to install a "pen register type system known as 'Group Call' " on a pager believed to be in Suarez's possession. In a supporting affidavit, a Raleigh police officer averred that Suarez carried a pager to receive coded messages transmitted by telephone from drug couriers. The pager Suarez allegedly carried was a "digital display" model, which displays numbers transmitted by the caller, and police sought authorization to use a "clone pager" that would display the same messages transmitted to Suarez's pager. The court authorized use of such a system for ninety days beginning September 22, 1988. 1
A digital display pager displays the numeric characters transmitted electronically by the pager company based on numbers punched in on a touch-tone telephone by the sender of the message. The clone pager obtained by the police received and displayed the same information transmitted to the suspect pager, but had no capability to permanently record or store the numbers received. Consequently, police officers monitoring the clione pager kept a written log of the numbers transmitted to Suarez's pager, though they eventually stopped recording known duplicate numbers.
On November 8, 1988, police intercepted a message to the pager that included the number of a pay telephone in the Charlotte, North Carolina, airport. Further investigation showed that Suarez was booked on a flight from Phoenix to Raleigh, with an intermediate stop in Charlotte. When Suarez arrived in Raleigh, police detained and questioned him, but did not arrest him. Suarez checked into a motel, but later was observed walking to the residence of his girlfriend at 5600 Duraleigh Road.
On November 9, two officers were monitoring the pager. The officers did not have the log book that had been used to record numbers previously intercepted. As they intercepted incoming numbers, one officer wrote the numbers on the back of an envelope; the other officer later copied the numbers from the envelope. 2 Investigation by the officers indicated that two calls placed to Suarez's pager on the morning of November 9 came from a local Ramada Inn and that Lucero-Romero was registered there. The officers went to the Ramada and observed Lucero-Romero and Zarate-Lopez leave the motel with several large suitcases and check into the Comfort Inn across the street. The officers soon intercepted a call from the Comfort Inn to Suarez's pager.
Based on their observations and previously gathered information, state law enforcement officers sought and were issued a search warrant for Lucero-Romero's room at the Comfort Inn. The officers searched the room and seized a quantity of marijuana. The police then sought a warrant to search the residence at 5600 Duraleigh Road. In a supporting affidavit, Agent Truax of the North Carolina State Bureau of Investigation recounted in detail the information gathered from other law enforcement offices, from informants, from monitoring the pager, from surveillance of Suarez and the other suspects, and from the search of Lucero-Romero's room. Agent Truax further averred that neither Suarez nor his girlfriend had a known source of legitimate income, yet Suarez traveled extensively by air across the country and spent large sums of money on his girlfriend, who was attempting to purchase a new home with cash. Agent Truax believed that the search of 5600 Duraleigh Road would reveal "drugs, cash, financial transaction records and paper writings that will further tie Luis Suarez and [his girlfriend] to the ... marijuana seized and other shipments of narcotic drugs into the Raleigh area in the past." When police obtained and executed the warrant, they seized approximately $100,000 and a small amount of marijuana.
Appellants and Zarate-Lopez were indicted for conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. Sec. 846, and interstate travel in aid of racketeering, in violation of 18 U.S.C. Sec. 1952(a); Lucero-Romero and Zarate-Lopez were also charged with possession with intent to distribute marijuana, in violation of 21 U.S.C. Sec. 841(a)(1). Before trial, Suarez moved to suppress evidence seized from the Duraleigh Road residence; the court denied this motion. Appellants also moved to suppress evidence seized as a result of the interception of the electronic communications to Suarez's pager. Appellants argued that the procedures police followed violated the Electronic Communications Privacy Act of 1986. The court denied the motions, ruling that because state court authorization of the system to intercept the messages occurred before the effective date of the Act, messages intercepted under valid authorization after the effective date of the Act were not covered by the Act. Even if the Act were applicable, the court ruled that suppression was not warranted for failure to observe the Act's sealing requirements. The court found that recording the information intercepted by the police's clone pager was not possible and that the written log kept could not serve the purpose of recording because it was subject to editing and alterations. The court also ruled that the authorities satisfactorily explained their failure to seal the paper recordings they did make. 3
The defendants waived their right to a jury trial. The court convicted the defendants on the counts as charged after a bench trial. Suarez was sentenced to 43 months imprisonment, followed by five years supervised release, and fined $100,000; Lucero-Romero was sentenced to 108 months imprisonment, to be followed by five years supervised release. On appeal, Suarez and Lucero-Romero challenge the court's suppression rulings. 4
Title I of the Electronic Communications Privacy Act of 1986 ("the Act") amended Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III") 5 to protect against unauthorized interception of "electronic" communications. 6 Congress found that amendments to Title III were needed "to update and clarify Federal privacy protections and standards in light of dramatic changes in new computer and telecommunications technologies." S.Rep. No. 541, 99th Cong., 2d Sess. 1, reprinted in 1986 U.S.Code Cong. & Admin.News 3555, 3555. Voice communications transmitted via common carrier were protected under the 1968 act, but "there [were] no comparable Federal statutory standards to protect the privacy and security of communications transmitted by new noncommon carrier communications services or new forms of telecommunications and computer technology." S.Rep. No. 541, 99th Cong., 2d Sess. 5, reprinted in id. at 3559. The legislative history specifically refers to paging devices and makes clear that display pagers are included within the Act's coverage. See S.Rep. No. 541, 99th Cong., 2d Sess. 10, 15, reprinted in id. at 3564, 3569. 7
The Act provided that its amendments to Title III would generally take effect ninety days after its enactment date, and would "in the case of conduct pursuant to a court order or extension, apply only with respect to court orders or extensions made after this title takes effect." Pub.L. No. 99-508, Sec. 111(a), 100 Stat. 1848, 1859 (1986). The legislative history confirms the intent that "existing court orders would not be affected by [the] changes and on-going investigations would not be hindered." S.Rep. No. 541, 99th Cong., 2d Sess. 35, reprinted in 1986 U.S.Code Cong. & Admin.News 3555, 3589. Congress then provided a special effective date provision for state authorized interceptions of electronic communications.
Any interception pursuant to section 2516(2) of title 18 of the United States Code which would be valid and lawful without regard to the amendments made by this title shall be valid and lawful notwithstanding such amendments if such interception occurs during the period beginning on the date such amendments take effect and ending on the earlier of--...
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