United States v. Banks

• Decision Date: 29 August 2014
• Docket Number: Case No. 5:13-cr-40060-DDC
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. ALBERT DEWAYNE BANKS et al. Defendant.
• Court: U.S. District Court — District of Kansas

UNITED STATES OF AMERICA, Plaintiff, v. ALBERT DEWAYNE BANKS et al. Defendant.

Case No. 5:13-cr-40060-DDC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

August 29, 2014

MEMORANDUM AND ORDER

Defendants Taylor, Thompson, and Makdins have filed motions to suppress intercepted text messages, and other defendants have joined their motions (Doc. 351, 356, 375). Defendants argue, among other things, that the Court must suppress text message evidence because investigators intercepted them pursuant to orders, which, on their face, authorized interception of wire communications only. For the reasons set forth below, the Court denies defendants' motions to suppress text message evidence on this basis.

Background

Investigators obtained wiretap orders in the final months of a thirteen-month investigation into a suspected narcotics-trafficking conspiracy. The investigation was a joint effort by the Kansas Bureau of Investigation ("KBI"), the Junction City Police Department, the Geary County Sherriff's office, and the Riley County Police Department. Beginning in March of 2013, investigators submitted applications for wiretap orders to Judge Platt, a judge in Kansas' Eighth Judicial District. Judge Platt issued a total of eight wiretap orders under the authorizationgranted by the Kansas wiretap statute, K.S.A. § 22-2514 et seq. The dates of issuance and expiration of each of the orders are set forth below:

• Thompson Order #1 (1783) - Issued March 5; Expired April 4.¹

• Banks Order #1 (6704) - Issued March 5; Expired April 4.²

• Ivory Order #1 (7176) - Issued April 2; Expired May 2.³

• Ponds Order #1 (0088) - Issued April 2; Expired May 2.⁴

• Thompson Order #2 (1783) - Issued April 4; Expired May 4.⁵

• Ivory Order #2 (7015) - Issued April 12; Expired May 12.⁶

• Banks Order #2 (9771) - Issued April 12; Expired May 12.⁷

• Thompson Order #3 (2893) - Issued April 16; Expired May 16.⁸

Each order provided authorized interception of "wire communications." See, e.g., Doc. 379-1 at 3. No orders authorized interception of "electronic communications." Nonetheless, investigators believed that the orders permitted the interception of text messages, and service providers in fact intercepted text messages sent to and from the target phones throughout the duration of each wiretap order.

Analysis

A. Governing Law

"Title III of the Omnibus Crime Control and Safe Streets Act, codified in 18 U.S.C. § 2510 et seq., which preempts the field of electronic surveillance regulation, allows for concurrent state regulation, subject, at the minimum, to the federal regulatory requirements" State v. Willis, 643 P.2d 1112, 1114 (Kan. Ct. App. 1982). "Although a state may adopt a wiretap statue with standards more stringent than the federal requirements, a state may not adopt more permissive standards." Id. "Accordingly, where there are at issue provisions of a state wiretap statute which conform to their counterparts in the federal act, federal case authority has precedential value at least equivalent to state case authority, if any. Hence, federal case law in this area is generally, if not universally, treated as controlling authority." Id. The Court finds that K.S.A. § 22-2516 and 18 U.S.C. § 2518(8)(a) are identical with respect to the issues the motions raise.

Both statutes govern interception of "wire, oral, and electronic communications." See K.S.A § 22-2514(1) et seq; 18 U.S.C. § 2510 et seq. Defendants rightly point out that the statutes distinguish between wire and oral communications: "'wire communication' refers "to any aural transfer . . . ." K.S.A § 22-2514(1); 18 U.S.C. § 2510. In contrast, "'electronic communication' means any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature . . . but does not include: [a]ny wire or oral communication; . . . ." K.S.A § 22-2514(11); 18 U.S.C. § 2510(12). Defendants are also correct that text messages constitute "electronic communication" and not "wire communication" because they involve no "aural transfer." See United States v. Jones, 451 F. Supp. 2d 71, 75 (D.D.C. 2006) (text messages constitute "electronic communications"). Significantly, the statutory suppressionremedy in both the Kansas wiretap statute and Title III apply to wire and oral communications only.

Any aggrieved person in any trial, hearing or proceeding in or before any court, department, officer, agency, regulatory body or other authority of the United States, this state, or a political subdivision thereof, may move to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that: . . . (iii) the interception was not made in conformity with the order of authorization.

K.S.A. § 22-2516(9)(a) (emphasis added); 18 U.S.C. § 2518(8)(a) (same).

The statutes do mandate suppression of intercepted electronic communication for certain violations. See, e.g., K.S.A. § 22-2516(8)(a) (failure to seal recordings of intercepted wire, oral, or electronic communications immediately requires suppression of such evidence). But where the alleged violation is that "the interception was not made in conformity with the order of authorization," as defendants allege here, the statutory suppression remedy extends to wire and oral communications only. Id. at § 22-2516(9)(a). The omission of "electronic communications" from the suppression provision was not a mere oversight. The statute goes on to clarify that:

The remedies and sanctions described in this chapter with respect to the interception of electronic communications are the only judicial remedies and sanctions for nonconstitutional violations of this act involving such communications.

K.S.A. § 22-2516(12) (emphasis added); see also 18 U.S.C. § 2518(10)(c) (same).

Case law interpreting the identical Title III provisions supports this conclusion. See, e.g., United States v. Steiger, 318 F.3d 1039, 1051 (11th Cir. 2003) (citing United States v. Meriwether, 917 F.2d 955, 960 (6th Cir. 1990) ("The ECPA does not provide an independent statutory remedy of suppression for interceptions of electronic communications); United States v. Reyes, 922 F. Supp. 818, 837 (S.D.N.Y. 1996) (holding that exclusion of evidence is not aremedy for the ECPA violation)). In general, "Fourth Amendment precedent is highly relevant in deciding whether an authorizing [wiretap] order is valid and whether a defect in wording is of a kind that threatens the central interests sought to be protected." United States v. Cunningham, 113 F.3d 289, 294 (1st Cir. 1997). Such precedent is especially relevant to this case, because the Fourth Amendment's exclusionary rule offers the only suppression remedy available for interception of electronic communications. K.S.A. § 22-2516(12); 18 U.S.C. § 2518(10)(c). Accordingly, the Court looks to Fourth Amendment precedent, including any applicable exceptions to the exclusionary rule, to determine whether Judge Platt's failure to include "electronic communications" in the wiretap order requires suppression of intercepted text messages.⁹

B. The Existence of a Constitutional Violation

Because the statutory suppression remedy does not extend to nonconstitutional violations involving electronic communications, the Court must resolve two questions: (1) whether the interception of text messages arose to a constitutional violation; and (2) if so, whether the exclusionary remedy of the Fourth Amendment applies.

For a court to suppress evidence based on a violation of the Fourth Amendment, a defendant bears the burden to prove an unlawful search and that he had a legitimate expectation of privacy in the searched item. United States v. McKennon, 814 F.2d 1539, 1542 (11th Cir. 1987). To establish a reasonable expectation of privacy, the defendant must show that: (1) he manifested "a subjective expectation of privacy;" and (2) society recognizes that expectation as "legitimate." Id. at 1543. If the defendant establishes an expectation of privacy, then the burden shifts to the government to show that the search was reasonable under a recognized exception to the warrant requirement. United States v. Harris, 526 F.3d 1334, 1338 (11th Cir. 2008).

The Tenth Circuit has not decided whether individuals have a legitimate expectation of privacy in text messages. But other circuits have so held, see United States v. Finley, 477 F.3d 250, 259 (5th Cir. 2007), as have several district courts. See United States v. Davis, 787 F. Supp. 2d 1165, 1170 (D. Or. 2011); United States v. Morales-Ortiz, 376 F. Supp. 2d 1131, 1140 (D.N.M. 2004). The Supreme Court has suggested, but has not held, that individuals have a reasonable expectation of privacy in text messages. City of Ontario, Cal. v. Quon, 560 U.S. 746, 760 (2010) (noting that "text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification," but declining to find a reasonable expectation of privacy a police officer's text messages stored on a department-issued cell phone). For the purposes of this analysis, the Court assumes defendants have established an expectation of privacy in their text messages, and that society recognizes their expectation as legitimate. United States v. Reza, 315 F. App'x 745, 747 (10th Cir. 2009) (Courts have discretion "to proceed directly to an analysis of the good-faith exception without first addressing the underlying Fourth Amendment question."). Thegovernment therefore bears the burden to show that the search was reasonable under a recognized exception to the warrant requirement. See Harris, 526 F.3d at 1338.

C. The "Good-Faith" Exception

The government presented evidence that investigators intercepted text messages based on a mutual understanding with Judge Platt. This understanding, the government argues, brings investigator's conduct within the "good-faith" exception to the warrant requirement articulated in United States v. Leon, 468 U.S. 897 (1984)....