U.S. v. Peoples, 98-00149-01-CR-W-6.
| Decision Date | 06 October 1999 |
| Docket Number | No. 98-00149-02-CR-W-6.,No. 98-00149-01-CR-W-6.,98-00149-01-CR-W-6.,98-00149-02-CR-W-6. |
| Citation | 71 F.Supp.2d 967 |
| Parties | UNITED STATES of America, Plaintiff, v. Cornelius PEOPLES and Xavier Lightfoot, Defendants. |
| Court | U.S. District Court — Western District of Missouri |
Matt Whitworth, Mark Miller, United States Attorney's Office, Kansas City, MO, for plaintiff.
Jay DeHardt, Kansas City, MO, William Odle, Kansas City, MO, for defendants.
The court has received Judge Larsen's reports and recommendations regarding the defendants' motions to suppress recordings of telephone and visitation conversations. Because trial is imminent the court heard argument (supplemented by limited additional briefing) and has studied the transcripts of hearings and reviewed exhibits. After de novo review the court will adopt the reports and recommendations and deny the motions.
The reports are exhaustive, both on the law and the evidence heard at the suppression hearings. Little needs to be added, by way of comment, qualification or elaboration.
Telephone conversation recordings taken in a prison setting (in this case pretrial detention at a contract facility) have now become rather routinely admissible, on an implied consent theory. In my experience, this occurred in United States v. Emery, 186 F.3d 921 (8th Cir.1999), and the Milton Terry Kelton litigation, United States v Swinney, 970 F.2d 494 (8th Cir.1992). Nothing about the reports and recommendations on that subject needs further discussion.
The trial use of recordings of visitation conversations is distinctly less usual, and initially may seem controversial and doubtful. I find nothing favorable to defendants, however, in litigation on this subject since the adverse ruling in the Patty Hearst case, United States v. Hearst, 563 F.2d 1331 (9th Cir.1977). As in this case, there were recordings of visitation conversation with a pretrial detainee, apparently without giving formal notice to the parties. Defendants contend Hearst is distinguishable because that was a Fourth Amendment case, whereas this case involves recordings at a nongovernmental prison in alleged violation of a statute. As pointed out by Judge Larsen, however, the capture and use of oral communications is governed by Fourth Amendment concepts. Assuming the Hearst case is consistent with the Fourth Amendment (), they would have to distinguish that case more probingly than to say this case is statutory.
It can be argued that Hearst does not authorize surveillance and taping rights when motivated by something other than "jail security and order." No argument was made in Hearst that the policy of recording in "`very publicized cases'" shows an inappropriate motivation. 563 F.2d at 1344, 1346 n. 11, 1347 n. 12. The issue of improper subjective motivation may, however, no longer be pertinent. Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). The severe attenuation of privacy interests in a penal context may well qualify for the general rule that "the Fourth Amendment's concern with `reasonableness' allows certain actions to be taken in certain circumstances, whatever the subjective intent." 517 U.S. at 814, 116 S.Ct. 1769.1
The recommended findings avoid considering such legal novelties. Judge Larsen recommended, and I find, that surveillance and recording of the visitation conversations here was a legitimate, fairly common practice, used in this case to advance appropriate penal interests, without FBI inducement. Knowledge that the FBI might also be interested in the results would not destroy the legitimacy of what occurred.
Defendants urgently advance a theory of pretext. It is an argument, but not a compelling one. For instance, there is no conflict between the warden's testimony that he had not personally authorized earlier surveillance and recording in the visiting room, and the testimony of others that they had routinely engaged in such activity on numerous occasions. Likewise, any confusion in the testimony about exact dates and hours of activity is hardly abnormal — the attorneys themselves got tangled in referencing names and years of past events.
Defendants' privacy expectations and arguments are not established. There was no testimony of subjective expectations.2 Absence of forewarning was apparently not a factor in Hearst, and is not controlling here. One may suppose it would be better practice to give such notice, but not as a matter of constitutional law (which mirrors the statutory protection here involved). The alleged appearance of privacy is also not controlling. Shielding conversations from other visitors and inmates would not fairly suggest that the prison management has no legitimate interest in the conversations. Again, the toilet stall analogy may be apt.
The theories about Kansas law are also far fetched, as an aid to creating reasonable expectations. Defendants have done little to establish that there was in fact a violation of Kansas law, much less a supposition that inmates and visitors are likely to be aware of such statutes or to suppose that they apply in a jailhouse context.
For reasons stated above and in the reports and recommendations the motions to suppress recordings of telephone and visitation conversations are hereby DENIED.
Before the court is defendant's motion to suppress recordings of telephone and visitation conversations on the grounds that (1) interception violated Title III of the Omnibus Crime Control and Safe Streets Act, (2) interception violated defendant's fourth amendment rights, and (3) interception violated Kansas criminal statutes 21 K.S.A. §§ 4001 and 4002. I find that (1) defendant had no legitimate expectation of privacy in any of the conversations recorded by CCA, (2) the telephone conversations were recorded with the implied consent of Xavier Lightfoot, (3) the in-person conversations were not wire communications or oral communications within the meaning of the federal wiretap law and were therefore not subject to the provisions of that law, and (4) the Kansas criminal statutes cited by defendant do not apply to this federal case. Therefore, defendant's motion to suppress the recorded conversations should be denied.
On July 8, 1998, a criminal complaint was filed charging defendant with one count of murdering Jovan Ross with intent to prevent Ross from testifying in an official proceeding, in violation of 18 U.S.C. § 1512(a)(1). Defendant was arrested on July 19, 1998. On July 23, 1998, an indictment was returned charging defendant with the murder of Jovan Ross. On September 11, 1998, a superseding indictment was returned charging defendant and Xavier Lightfoot with the murder of Jovan Ross in addition to one count of conspiracy to commit bank robbery, in violation of 18 U.S.C. § 371.
On March 1, 1999, defendant filed this motion to suppress (document number 156). On April 7, 1999, the government filed a response in opposition to defendant's motion (document number 214). The government points out that the monitoring at CCA was done on the initiative of CCA and not at the behest of the FBI, defendant had no expectation of privacy in the intercepted conversations during his visits to CCA, and CCA has a need to maintain discipline and order within its walls.
On April 14 and 29, 1999, I held a hearing on defendant's motion. Defendant was present in person, represented by Jay DeHardt and William Odle. The government was represented by Assistant United States Attorneys Mark Miller and Matt Whitworth. The parties called the following witnesses:
1. Roger Moore, Assistant Warden at CCA
2. FBI Special Agent Joan Neal
3. James Perry, Chief of Security at CCA
4. William Graf, Warden at CCA
5. Victor Hinke, Jr., former CCA employee.
In addition, the following exhibits were introduced:
P.Ex. 1 Book of transcripts Volume I
P.Ex. 1A Book of transcripts Volume II1
P.Ex. 2 Subpoena dated June 10, 19982
P.Ex. 2A Subpoena dated June 22, 1998
P.Ex. 3 Prisoner handbook
P.Ex. 4 Tape recording dated June 8, 1998
D.Ex. 5 Affidavit of Special Agent Joan Neal
D.Ex. 8 Lightfoot visitation list3
D.Ex. 9 Report of Special Agent Joan Neal dated June 10, 1998
D.Ex. 10 Report of Special Agent Joan Neal dated June 11, 1998
D.Ex. 12 Report of Special Agent Joan Neal dated June 24, 1998
D.Ex. 14 Photograph of visitation booth
D.Ex. 15 Photograph of visitation booth
D.Ex. 16 Photograph of computer to access t/c
D.Ex. 17 Photograph of visitor's recording system
D.Ex. 18 Photograph of t/c computer storage unit
D.Ex. 19 Photograph of t/c visitor's recording system
D.Ex. 20 Henderson termination letter
D.Ex. 21 Call detail dated June 10, 1998
D.Ex. 28 FBI document receipt of duplicate tapes from CCA dated August 5, 1998
D.Ex. 31 Prisoner Information Request dated June 1, 1998
D.Ex. 32 Appointment/visitation log dated May 26, 1998
D.Ex. 33 Grand Jury subpoena to CCA dated June 15, 1998 (same as plaintiff's exhibit 2)
D.Ex. 34 Copy of Kansas statutes on eavesdropping and breach of privacy
D.Ex. 35 Memorandum to Susan Elliott from CCA re: inmate assaults and fights, dated April 21, 1999
D.Ex. 36 Shift report dated June 10, 1998
D.Ex. 38 FBI 302 dated August 3, 1998
D.Ex. 39 Work order dated June 1, 1998
On June 11, 1999, defendant filed a reply brief (document number 310) arguing that the government cannot establish that CCA officers are law enforcement officers within the meaning of the federal wiretap law or that CCA is a law enforcement agency whose employees intercept calls in the ordinary course of their business which is excepted from the federal wiretap law. In addition, defendant argues that witnesses either were not credible or their testimony does not support the arguments raised...
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