State v. Oster, C.A. No. P1-02-3047A (RI 7/2/2004)
| Decision Date | 02 July 2004 |
| Docket Number | C.A. No. P1-02-3047A |
| Parties | STATE OF RHODE ISLAND v. JONATHAN OSTER |
| Court | Rhode Island Supreme Court |
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.
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 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.
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 Presiding Justice.
On Saturday, February 16, 2002, the Financial Crimes Unit of the Rhode Island State Police ("FCU"), working in conjunction with the Rhode Island Department of Attorney General ("the Department"), terminated the final two wiretaps authorized for this case. This was the FCU's first wiretap investigation. The FCU utilized one wiretap to intercept communications over Robert Picerno's cellular telephone and used the other wiretap to intercept communications over Robert Picerno's home telephone. Those wiretaps are labeled as "Sprint 114" and "Verizon 115," respectively.6
At the time the State shut down the wiretaps, Coutcher was operating a facility that the State Police used to intercept communications pursuant to wiretap authorizations. This facility ("intercept post" or "post") was a secure building inside an old National Guard hanger. The State Police constructed the post for the purpose of intercepting communications. Inside the intercept post was a room in which the State Police intercepted, recorded, and temporarily stored recorded communications for ongoing wiretap investigations ("wiretap room"). The wiretap room is somewhat fortified. A padlocked, seven-foot chain-link fence, topped with barbwire, cordoned off the intercept post. Once inside this fence, the outside door to the post was locked and required a key. Inside this outer door was a so-called "bay" area leading to the wiretap room. Access to the wiretap room was controlled by another locked door, which required a separate key. Maintenance personnel could gain access to the bay area but only investigators assigned to the wiretap room had its access key. In addition, other state police personnel had access to the hanger, but only wiretap monitors had access to the intercept post.
At 11:55 a.m. on Saturday, February 16, 2002, Coutcher received orders to shut down the wiretaps. Coutcher shut down the intercepting devices and then emptied all of the previously recorded communications, which were recorded on cassette tapes ("tapes" or "recordings"), out of a metal cabinet inside the wiretap room.7 Coutcher counted the tapes to ensure that the number of tapes he collected matched the number of tapes in the logs that the monitors had used to document events throughout the wiretaps. He accounted for all of the tapes; thirty-one tapes comprised the Sprint 114 wiretap and forty tapes comprised the Verizon 115 wiretap.
While intercepting communications, the State Police simultaneously recorded the conversations on a separate set of duplicate tapes that it kept for investigatory purposes. See State v. Campbell, 528 A.2d 321, 330 (R.I. 1987) (). Detective Casilli testified that one or two of the tapes among the set of duplicate recordings maintained by the State Police were blank for unknown reasons but that all other copies matched the originals. "[S]ome slight technical discrepancies between two simultaneous recordings. . ." are harmless, absent a claim of prejudice, id.; however, where, as here, the discrepancies are inexplicable and extend to the entirety of one or two tapes, the Court must weigh those factors when considering the integrity of the tapes. See infra.
Coutcher next placed the original tapes inside one "banker's box" and transported them to the FCU at State Police Headquarters. At State Police Headquarters, Coutcher did not store the tapes in the State Police evidence room. Rather, he stored the box of original tapes in a locked fireproof cabinet to which only he had access. Coutcher next accessed the tapes to inventory them on the following day, Monday, February 18, 2002. He placed the tapes on a table, counted the tapes, and checked to ensure that each tape was in its correct case. Coutcher determined that he had possession of all of the tapes comprising the Sprint 114 and Verizon 115 wiretaps. Other than keeping count of the tapes, however, no one kept paperwork documenting the custody and transfer of each individual tape.
The next day, Tuesday, February 19, 2002, Coutcher met with Detective Casilli, who was also a detective with the FCU. Detective Casilli's duty was to take possession of the tapes and transport them to the chambers of the Honorable Joseph F. Rodgers, Jr., Presiding Justice of the Rhode Island Superior Court, where the tapes would be sealed. Detective Casilli and Coutcher first counted and organized the tapes. Detective Casilli then transported the tapes to the Superior Court. Once there, Detective Casilli met in chambers with the Presiding Justice, Neronha, and Desnoyers.
At this time, pursuant to R.I. Gen. Laws § 12-5.1-8(a), all of the recordings from the Sprint 114 and Verizon 115 wiretaps that were presented to the Court were sealed under the Presiding Justice's direction. Neither the tapes and their seals nor demonstrative evidence depicting the tapes and their seals were introduced into evidence in the Evidentiary Hearing before this Court. According to the testimony, however, the Presiding Justice had the tapes sealed with white, address-style labels bearing the signature of the Presiding Justice and Neronha. The labels had adhesive on the backside and peeled off of sheets that measured 8½ by 11 inches. The Presiding Justice and Neronha continuously signed labels (without regard to the number of labels that were necessary to seal the cassette tapes) while Desnoyers affixed the signed labels in some fashion to each plastic case that held an individual cassette recording. Detective Casilli may have assisted Desnoyers in affixing the labels.
After all of the tapes were sealed, they were placed in a box ("the Box"), and one of the four parties in attendance — it is not clear who — sealed the Box with a signed label or signed labels. Inexplicably, neither the Box and its seals nor demonstrative evidence depicting the Box and seals were introduced into evidence at the Evidentiary Hearing. The evidence thus is unclear as to the number of labels used to seal the Box; yet it seems that signed labels, which remained unused after sealing the tapes, may have been used in some fashion to seal the Box. Although it is not...
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