U.S. v. Correa

• Decision Date: 18 September 2002
• Docket Number: No. CR.99-10416-EFH.,CR.99-10416-EFH.
• Citation: 220 F.Supp.2d 61
• Parties: UNITED STATES of America v. Robert CORREA and Shelton Lewis
• Court: U.S. District Court — District of Massachusetts

220 F.Supp.2d 61

UNITED STATES of America v. Robert CORREA and Shelton Lewis

No. CR.99-10416-EFH.

United States District Court, D. Massachusetts.

September 18, 2002.

Kevin J. Reddington, Law Offices of Kevin J. Reddington, Brockton, MA, for Robert Correa, Defendant.

Charles P. McGinty, Federal Defender Office, Leo Sorokin, Public Defender Office, Boston, MA, for Shelton Lewis, Defendant.

Donald L. Cabell, United States Attorney's Office, Boston, for U.S. Attorneys.

MEMORANDUM AND ORDER

HARRINGTON, Senior Judge,

Introduction

At issue in this Memorandum and Order is a motion by counsel for co-defendants Shelton Lewis and Robert Correa to suppress a September 9 telephone conversation between them.¹ The call was placed by Correa from the Plymouth County House of Correction ("Plymouth"), where Correa was detained, to an individual named Wilson. After Wilson accepted the call, Lewis took the receiver and talked with Correa. The call was recorded by Plymouth officials pursuant to its inmate telephone system policy. Law enforcement officials later listened to a recording of the call, as well as others made by Correa, with the assistance of a Plymouth employee. Because Correa consented to the monitoring and recording of his calls and because Plymouth's sharing of those recordings with law enforcement officials did not exceed the scope of Correa's consent, the motion to suppress the September 9 telephone conversation is denied. Further, even if the disclosure of the conversation to a member of the State Police and a member of the Brockton Police department had exceeded the scope of Correa's consent, that disclosure was proper under the law enforcement exception to Title III of the Omnibus Crime Control and Safe Streets Act of 1968. 18 U.S.C. § 2510(5)(a)(ii).

Background

Plymouth records all inmate calls, except those made to designated attorneys or clergy members, on reel-to-reel tapes. The calls also are subject to monitoring by prison employees.

The parties have stipulated that Massachusetts State Police Officer John Brooks and Detective Cummings of the Brockton Police Department went to Plymouth, where telephone systems administrator George Pyne played a recording of some of Correa's calls for them. The officers subsequently used what they heard to obtain a subpoena for cassette copies of the calls.

The telephone conversation between Correa and Lewis was recorded by Plymouth officials pursuant to the Plymouth Inmate Telephone System policy ("PCCF-482"). PCCF-482 was issued under authority granted to the superintendents of the Commonwealth's correction facilities by 103 C.M.R. 482, a regulation issued by the Department of Corrections and governing prison telephone access and use. Under the regulation, superintendents are to develop procedures to insure inmates have access to telephones, while ensuring the orderly and safe use of prison telephones. 103 C.M.R. 482.07(1).

Call monitoring and recording is explicitly authorized by 103 C.M.R. 482.07(3)(d). However, the regulation does not address the issue of whether law enforcement officials may be permitted, absent court order, to listen to inmate telephone calls. Instead, it is the Plymouth policy that states: "Criminal justice agencies outside the Plymouth County Sheriff's Department are allowed access to recorded tapes within the scope of their legally authorized request (i.e., court orders). Random or general access to monitored telephone conversations are [sic] strictly prohibited." PCCF-482 XVIII A.

Plymouth's recording and monitoring is not conducted surreptitiously. For example, when inmates protect calls to attorneys and clergy from this regime by placing excluded names and telephone numbers on a form entitled "Inmate List of Designated Telephone Numbers" ("Inmate List"), they see a notice stating that their use of an assigned pin number ("IPIN") to make calls from Plymouth constitutes consent to recording and monitoring. The notice states:

Your acceptance of the IPIN and use of the inmate telephones will be deemed as consent to the conditions and restrictions placed upon inmate telephone calls, including call monitoring, recording, and call detail.

In addition, prior to making calls, inmates sign and date forms expressly consenting to such recording and monitoring. Finally, under the Plymouth policy, inmates and the recipients of their calls hear the following message before being connected:

Nynex has a collect call from [name of inmate], an inmate at the Plymouth County House of Correction. To refuse this call, hang up. If you use three-way calling or call waiting, you will be disconnected. All call detail and conversation, excluding approved attorney calls, will be recorded. To accept this call, dial one now.

In this case, Lewis did not hear this announcement because he took the receiver after it was made. However, as discussed below, it is sufficient for purposes of this motion for the Court to concern itself only with Correa's consent.

Discussion

A. Scope of Consent

Counsel for the defendants argue that when Pyne allowed Brooks and Cummings to listen to the recording of the conversation, he violated Title III, which prohibits, subject to certain exceptions, the interception of telephone conversations without a court order. 18 U.S.C. §§ 2510-2521. As a basis for their motion to suppress, counsel rely on a provision of Title III prohibiting the use as evidence of wire or oral communications intercepted in violation of this law. 18 U.S.C. § 2515.

At oral argument, defense counsel apparently conceded, however, that at first blush the so-called "consent exception" to Title III applies here. 18 U.S.C. § 2511(2)(c) states:

It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.

It is no longer an open question in this Circuit whether inmates may be deemed to have consented to monitoring and recording under a system like that employed at Plymouth. See U.S. v. Footman, 215 F.3d 145, 154-55 (1st Cir.2000). Addressing the Concord state prison, the First Circuit found in Footman that prisoners there who had received such notices had consented to the monitoring and recording. Id.²

Faced with this precedent, counsel for the defendants argue that the sharing of the recordings with law enforcement prior to the issuance of the subpoena nevertheless exceeded the scope of Correa's consent, and therefore, the September 9 telephone conversation should be suppressed. Specifically, defense counsel contend that the scope of Correa's consent was limited by two factors: the purpose for which inmate calls are monitored and recorded, or the object of the recording, in search and seizure terms, and the prohibition against random or general access by law enforcement agencies contained in PCCF-482.

Regarding defense counsel's first proposed limitation, it is settled that "the scope of a search is generally defined by its expressed object." Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). However, Plymouth expressed no object for its monitoring and recording in any of the notices that form the basis for a finding of consent. Inmates, such as Correa, are told merely that all calls will be monitored and/or recorded. No indication of why the calls are recorded is given in the document entitled "Orientation to the Inmate Telephone System for Inmates," for example. Nor is a purpose stated in the Inmate Telephone List. The recorded message callers and recipients hear before a call is accepted by the recipient also fails to mention a reason for the recording. Finally, PCCF-482 express no object for the recording.

In an attempt to suggest an express object that would preclude sharing the content of the conversation with law enforcement officials, defense counsel points only to Cacicio v. Secretary of Public Safety, 422 Mass. 764, 768, 665 N.E.2d 85 (1996). According to defense counsel, Cacicio stands for the proposition that recording and monitoring may be used only to prevent inmates from using the telephones to plan escapes, organize drug trafficking, orchestrate criminal activities, and solicit murder; to prevent fraudulent use of third-party calls or telephone credit cards; and to prevent inmates from using telephones to harass members of the media, public officials, and victims. Id. However, these objects are merely the Supreme Judicial Court's description of the purpose of the regulation, which it distilled from an affidavit provided by the assistant deputy commissioner of secure facilities detailing some of the problems with the prison phone system prior to the regulation. See id. at 89 n. 8. This description by the Supreme Judicial Court of the Department of Corrections' purpose for recording is not part of what Plymouth tells its inmates about the telephone system. Nor is the Cacicio decision likely to be so familiar to inmates that prisoners such as Correa should be deemed to have impliedly limited their consent to recording only to the purposes catalogued by the Supreme Judicial Court.

Turning to defense counsel's second proposed limitation on the scope of Correa's consent, it cannot be disputed that Pyne violated PCCF-482 when he permitted Officer Brooks and Detective Cummings to listen to the recordings prior to the issuance of the subpoena. However, suppression does not necessarily follow. PCCF-482 was established, as noted earlier, under the power given correction facility superintendents by 103 C.M.R. 482. That regulation includes an important limitation: it does not create or confer any procedural or substantive rights or any private cause of action not otherwise granted by state or federal law. 103 C.M.R. 482.01. In effect, this provision of the regulation tells defendants they must look elsewhere for a...