State of Rhode Island v. Jonathan Oster

• Decision Date: 02 July 2004
• Docket Number: C.A. P1-02-3047A
• Parties: State of Rhode Island v. Jonathan Oster
• Court: Superior Court of Rhode Island

State of Rhode Island
v.
Jonathan Oster

C.A. No. P1-02-3047A

Superior Court of Rhode Island

July 2, 2004

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE, SC. Filed July 2, 2004 SUPERIOR COURT ______________________________

STATE OF RHODE ISLAND:

JONATHAN OSTER: ______________________________:

DECISION

SAVAGE, J.

Before this Court for decision is the final portion of defendant Jonathan Oster’s (“defendant Oster”) motion to suppress electronic wiretap surveillance evidence from his trial upon which this Court previously reserved decision pending an evidentiary hearing. Defendant Oster seeks to suppress the tapes comprising the Sprint 114 and Verizon 115 wiretaps on the grounds that the State violated the sealing and storage provisions of the state and federal wiretap statutes, R.I. Gen. Laws § 12-5.1-8(a) and 18 U.S.C. § 2518(8)(a), ¹ by not storing those tapes in a safe-deposit box, as the Presiding Justice had directed, and by allowing the seal on the box containing those tapes, that had been placed on the Box under the direction of the Presiding Justice, to be broken prematurely. Following an evidentiary hearing, and for the reasons set forth in this Decision, this Court grants, in part, defendant Oster’s motion to suppress.

¹ Initially, defendant Oster relied solely on the sealing provision of the state wiretap statute, R.I. Gen. Laws § 12-

5.1-8(a). See “Defendant Oster’s Memorandum in Support of His Motion to Suppress the Fruits of Electronic Surveillance, ” at 11-12 (Dec. 17, 2003). In his supplemental memorandum of law following this Court’s partial decision on his motion to suppress and its evidentiary hearing, defendant Oster now relies on the sealing provisions of both the state and federal wiretap statutes. See “Jonathan Oster’s Memorandum in Support of His Motion to Suppress the Fruits of Electronic Surveillance, ” at 1-2 (May 14, 2004).

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I. PROCEDURAL HISTORY

In a March 10, 2004 decision, this Court denied defendant Oster’s motion to suppress electronic wiretap surveillance evidence on all bases except for his claim that the State violated the sealing and storage provisions of the Rhode Island Wiretap Statute, R.I. Gen. Laws § 12-5.1- 8(a).² See generally State v. Picerno, C.A. No. P1-02-3047B, State v. Oster, C.A. No. P1-02- 3047A, 2004 R.I. Super. LEXIS 57 (March 10, 2004). As to defendant Oster’s sealing and storage claim, this Court found that, while R.I. Gen. Laws § 12-5.1-8(a) does not impose suppression as a remedy for the State’s alleged improper storage of the wiretap recordings, the

² In its March 10, 2004 decision, this Court decided defendant Oster’s motion to suppress jointly with defendant Robert Picerno’s similar motion to suppress wiretap evidence. Following that decision, on March 24, 2004, defendant Picerno pleaded nolo contendre to all seven counts of the Indictment against him: four counts of soliciting or attempting to solicit a bribe and three counts of conspiracy to do the same in violation of R.I. Gen. Laws §§ 11-7-3 and 11-1-6 (1956). The Court accepted his plea and sentenced defendant Picerno to eight years at the Adult Correctional Institutions, with three years to serve and the balance of the sentence suspended with probation.

The State argued, in connection with the defendants’ joint suppression motion, that defendant Oster lacked standing to challenge the admissibility of the wiretap evidence. See State v. Picerno, C.A. No. P1-02-3047B, State

v. Oster, C.A. No. P1-02-3047A, 2004 R.I. Super. LEXIS 57, at *13-15 (March 10, 2004); “State’s Memorandum of Law in Support of Its Objection to the Defendants’ Motions to Suppress Wiretap Evidence, ” at 10-11 (Jan. 2, 2004) (challenging standing because the protected “Fourth Amendment rights are personal”). This Court found, in its March 10, 2004 decision, that it did not need to reach that issue because, among other reasons, defendant Picerno had standing and challenged the evidence on grounds identical to those advanced by defendant Oster, thus enabling the Court to consider the issues regardless of defendant Oster’s ability to present his arguments. State v. Picerno,

C.A. No. P1-02-3047B, State v. Oster, C.A. No. P1-02-3047A, 2004 R.I. Super. LEXIS 57, at *13-15 (March 10,

2004). Assuming, arguendo, that the Court now must reexamine defendant Oster’s standing because defendant Picerno is no longer a party to the motion to suppress, the Court finds no merit to the State’s standing argument with respect to the sealing provisions of the state and federal wiretap statutes. Unlike most wiretap challenges, the sealing requirements are not based on the Fourth Amendment protection from unreasonable searches and seizures; rather, they are designed to preserve the integrity, confidentiality, completeness and confidentiality of the tapes. See United States v. Ricco, 421 F.Supp. 401, 405-06 (S.D.N.Y. 1976) (because sealing requirement pertains to integrity, any litigant has standing). Therefore, the State’s argument – that defendant Oster “should be prohibited from contesting the admissibility of [calls to which he was not a participant] on Fourth Amendment grounds. . .” – is not applicable in this context. Compare id. with “State’s Memorandum of Law in Support of Its Objection to the Defendants’ Motions to Suppress Wiretap Evidence, ” at 10-11 (Jan. 2, 2004); see also State v. Picerno, C.A. No. P1- 02-3047B, State v. Oster, C.A. No. P1-02-3047A, 2004 R.I. Super. LEXIS 57, at *101 (March 10, 2004) (sealing provisions provide a freestanding basis for suppression, independent of the “aggrieved person” language of R.I. Gen. Laws § 12-5.1-12(a) and 18 U.S.C. § 2518(10)(a)). In addition, defendant Oster was a participant to some recorded conversations that were stored inside the Box, thus enabling him as a participant (even under the State’s view) to challenge the sealing of the Box. See “State’s Memorandum of Law in Support of Its Objection to the Defendants’ Motions to Suppress Wiretap Evidence, ” at 10-11 (Jan. 2, 2004).

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statutory provision could restrict the use of the recordings due to improper sealing.³ State v. Picerno, C.A. No. P1-02-3047B, State v. Oster, C.A. No. P1-02-3047A, 2004 R.I. Super. LEXIS 57, at *93, *95-96, *100 (March 10, 2004). The Court reserved judgment, pending an evidentiary hearing, on whether the State violated the sealing and storage provisions of R.I. Gen. Laws § 12-5.1-8(a) and, if so, whether suppression is warranted for the sealing violation.⁴ Id . at *101-02.

The Court held this evidentiary hearing on April 26 and 27 of 2004 (“Evidentiary Hearing”). The State called six witnesses, and defendant Oster examined all of those witnesses through his counsel but called no witnesses to testify on his own behalf. Testifying at the hearing were Investigator Clifford Coutcher (“Coutcher”) and Detective Sergeant Brian Casilli (“Casilli”) of the Rhode Island State Police Financial Crimes Unit; Alyson Adalio (“Adalio”), Administrative Assistant to the Chief of the Criminal Division for the Department of Attorney General; Marianne DeSimone (“DeSimone”), Chief Paralegal of the Criminal Division; Peter Neronha (“Neronha”), former Assistant Attorney General; and Saray Desnoyers (“Desnoyers”), Paralegal in the Criminal Division of the Department of Attorney General.

³ This Court found that while R.I. Gen. Laws § 12-5.1-12(a) (general suppression provision) does not provide suppression as a remedy for a sealing violation under § 12-5.1-8(a) (sealing of recordings), § 12-5.1-8(a) provides its own freestanding basis for suppression, independent of § 12-5.1-12(a). State v. Picerno, C.A. No. P1-02-3047B, State v. Oster, C.A. No. P1-02-3047A, 2004 R.I. Super. LEXIS 57, at *93-101 (March 10, 2004). Section 12-5.1- 8(a) provides suppression as a remedy for a failure to properly seal the recordings in accordance with the directives of the court, not for a failure to properly store the recordings. Id .; see also infra note 16 (storage affects suppression analysis for sealing failures under § 12-5.1-8(a)). Section 12-5.1-12(a) provides suppression as a remedy for a sealing violation under § 12-5.1-8(b) (sealing of affidavits and orders). Id .; see also State v. Campbell, 528 A.2d 321, 328-30 (discussing sealing requirements of § 12-5.1-8).

⁴ Salient factors for this Court to consider in making these determinations – as this Court indicated in its March 10, 2004 decision – include the nature of the wiretap evidence presented to the Presiding Justice for sealing; the circumstances attending its presentation; the Presiding Justice’s directions regarding the sealing and storage of the recordings; the purpose of those directives; the execution of those directives; the explanation for and effect of any failure to comply with those directives; the handling of the recordings after any failure to seal; the nature of the evidence at the time of unsealing as compared to its nature at the time of sealing; whether the integrity of the tapes has been compromised; whether any violations benefited the prosecution or prejudiced the defendants; and whether any violations were deliberate or inadvertent. State v. Picerno, C.A. No. P1-02-3047B, State v. Oster, C.A. No. P1- 02-3047A, 2004 R.I. Super. LEXIS 57, at *102 n.31 (March 10, 2004).

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At the hearing, the State introduced as exhibits the previously-submitted affidavits of Adalio, DeSimone, and Desnoyers. The State also introduced as exhibits the wiretap applications and orders, along with the transcript of the October 3, 2003 hearing before the Presiding Justice for the unsealing of the wiretap applications, orders, and tapes. Following the Evidentiary Hearing, defendant Oster moved for leave to expand the record of the hearing to include an affidavit of Joseph F. Rodgers, Jr., Presiding Justice of the Superior Court. By stipulation, the parties agreed to augment the record to include the May 13, 2004 affidavit of the...