State v. Picerno, C.A. No. P1-02-3047B (R.I. Super 3/10/2004)
| Decision Date | 10 March 2004 |
| Docket Number | C.A. No. P1-02-3047B,C.A. No. P1-02-3047A |
| Parties | STATE OF RHODE ISLAND v. ROBERT PICERNO STATE OF RHODE ISLAND v. JONATHAN OSTER |
| Court | Rhode Island Superior Court |
Before this Court for decision are pre-trial motions filed by defendants Robert Picerno and Jonathan Oster by which they seek to suppress from their respective trials the electronic wiretap surveillance evidence garnered by the State.1 Defendants argue, in support of their request for suppression of the wiretap evidence, that the State violated the Rhode Island Wiretap Statute, R.I. Gen. Laws §§12-5.1-1 et seq., by (1) failing to establish probable cause and necessity for the authorized interceptions (2) failing to properly minimize the interception of non-pertinent conversations during execution of the wiretap orders; (3) disclosing the wiretap evidence through the process of discovery in the criminal case; and (4) failing to properly seal and store certain of the wiretap recordings. The State has objected to the defendants' motions.
For the reasons set forth in this decision, this Court denies the defendants' motions to suppress to the extent they are premised on claims of lack of probable cause and necessity for the court-authorized interceptions, failure to minimize non-pertinent conversations and unlawful disclosure of wiretap evidence. It reserves decision with respect to the question of whether suppression is warranted for alleged sealing and storage violations, pending an evidentiary hearing.
In late 2001 and early 2002, the Attorney General for the State of Rhode Island sought authorization from the Presiding Justice of the Rhode Island Superior Court for the State Police to intercept the telephone conversations of defendant Picerno. On November 16, 2001, the Attorney General filed an application with the Presiding Justice, pursuant to the Rhode Island Wiretap Statute, R.I. Gen. Laws §12-5.1-2, for an order authorizing members of the State Police to intercept communications over a Sprint PCS wireless cellular telephone being used by defendant Picerno ("Sprint 113"). That application incorporated by reference an extensive forty-page affidavit of Detective Brian Casilli that detailed the facts and circumstances underlying the State's request for the wiretap authorization.2
On that same date, the Presiding Justice signed an order authorizing the interception of telephone communications requested in the application and affidavit for no longer than 30 days. (WT-2001-08). In that order, the Presiding Justice found, as required by the Rhode Island Wiretap Statute, R.I. Gen. Laws §12-5.1-4(a)(1)(4), that: (1) there was probable cause to believe that defendant Picerno and other unknown persons have committed, are committing or are about to commit the crimes of extortion, solicitation or acceptance of a bribe, and conspiracy to commit those crimes; (2) there was probable cause to believe that communications concerning those offenses would be obtained through the requested wiretap; (3) normal investigative procedures reasonably appear unlikely to succeed if tried; and (4) there was probable cause to believe that the facilities from which, or the place where, the wire electronic or oral communications are to be intercepted are being used, or are about to be used, in connection with the commission of those offenses. The order authorized the interception of communications that were for the purpose of committing the designated offenses and that would identify any co-conspirators, accomplices and agents of defendant Picerno. The order mandated that the application and order be sealed by the Presiding Justice and stored in a safe deposit box at his direction. It also required that weekly reports be filed with the Presiding Justice to show the progress made toward achievement of the stated objectives of the wiretap and to demonstrate the need for continued interception to gather further evidence of the designated offenses.
On December 14, 2001, the Attorney General filed an application with the Presiding Justice for an order extending the November 16, 2001 wiretap authorization order until December 22, 2001. That application incorporated by reference the earlier Casilli affidavit, dated November 16, 2001, as well as a supplemental forty-page affidavit from Detective Casilli that was dated December 14, 2001. The later Casilli affidavit detailed much of the pertinent information gathered as a result of the initial wiretap. On December 14, 2001, the Presiding Justice granted the State's extension request and issued an order, similar to that issued in connection with the first wiretap application, that authorized extension of the wiretap on defendant Picerno's cellular telephone until December 22, 2001.
As the State believed that defendant Picerno would be on vacation in Florida for an extended period of time, it did not seek to extend Sprint 113 beyond December 22, 2001 and allowed it to expire. Discovery filed by the State in these criminal cases indicates that the State Police filed detailed weekly reports regarding the progress of this wiretap with the Presiding Justice, kept detailed monitoring logs regarding its interceptions (that were introduced into evidence at the suppression hearing), and documented the chain of custody regarding the tapes comprising Sprint 113. The parties do not dispute that these tapes were sealed and stored by the State in accordance with the directions of the Presiding Justice.
On January 18, 2001, the State filed another wiretap application, together with a thirty-page affidavit from Detective Casilli (that detailed much of the pertinent information garnered as a result of the extension of the initial wiretap) and copies of his two prior affidavits. It obtained another order from the Presiding Justice (Acting) authorizing it to intercept communications over defendant Picerno's same Sprint cellular telephone for a maximum of 30 days ("Sprint 114").
On January 28, 2002, the Presiding Justice issued an order that authorized the State Police to intercept communications over defendant Picerno's home telephone for a maximum of twenty days. (WT 2002-02). This order was issued based on the State's application and submission of the three prior Casilli affidavits and his new eleven-page affidavit that detailed the evidence gathered from the renewed wiretap on defendant Picerno's cellular telephone. ("Verizon 115").3
On February 15, 2001, the Presiding Justice extended the wiretap authorized on January 18, 2001 with respect to defendant Picerno's cellular telephone for another thirty days (Sprint 114). This extension was based on the State's application and submission of Detective Casilli's prior affidavits together with a new thirty-page affidavit of Detective Casilli that detailed the evidence obtained by the State pursuant to the two most recently authorized wiretaps that were in place on defendant Picerno's cellular telephone and his home telephone.
The State Police maintained the wiretaps on both defendant Picerno's cellular telephone (Sprint 114) and his home telephone (Verizon 115) until sometime during the day following his arrest on February 16, 2002.4 Overall, the State Police intercepted a total of 1,576 calls from the Sprint 113, Sprint 114, and Verizon 115 wiretaps.
Discovery filed by the State in these criminal cases indicates that the State Police filed detailed weekly reports regarding the progress of Sprint 114 with the Presiding Justice, continued to keep monitoring logs regarding these interceptions and documented the chain of custody regarding the tape recordings comprising the Sprint 114 and Verizon 115 wiretaps. The State concedes that the box containing these tape recordings that had been sealed previously at the direction of the Presiding Justice did not remain under seal and was not stored in accordance with those directions; it maintains, however, that each of the individual tapes that comprise the Sprint 114 and Verizon 115 wiretaps were sealed in accordance with the Presiding Justice's directions and remain under seal.
Defendants Picerno and Oster move to suppress the contents of all of these intercepted conversations (Sprint 113, Sprint 114 and Verizon 115) from their respective trials. Because the defendants filed their motions to suppress the electronic surveillance evidence with this Court as part of their pre-trial motions, the Court transferred the motions to the Presiding Justice pursuant to R.I. Gen. Laws § 12-5.1-12(c).5 The Presiding Justice then transferred the motions to this Court and designated this Court to hear and decide the motions. See R.I. Gen. Laws § 12-5.1-12(c). This Court heard arguments on all issues raised by the defendants on January 14, 2004, except defendants' so-called "minimization" arguments. On January 15, 2004, to expedite and streamline defendants' minimization challenges, all parties agreed to a sequence of briefing due to the issue's unique burdens of production and voluminous documentation.6
In the instant motions, defendants Picerno and Oster seek to exclude the wiretap evidence on a number of grounds. Defendants first challenge the wiretap authorizations, arguing that the applications and affidavits fail on their face to satisfy the statutory requirements of probable cause and necessity. Second, the defendants argue that, in executing the wiretap orders, the State failed to properly minimize the interception of non-pertinent communications. Finally, the defendants seek to suppress the wiretap evidence on grounds that the State failed to comply with the sealing, storage, and disclosure requirements of the Rhode Island Wiretap Statute, R.I. Gen. Laws, §12-5.1-1 et seq.
The Rhode Island Supreme Court has held that Rhode Island citizens have "a double barreled source of protection which safeguards their privacy from unauthorized and unwarranted...
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