US v. Green, 92-CR-159C.

• Decision Date: 21 January 1994
• Docket Number: No. 92-CR-159C.,92-CR-159C.
• Parties: UNITED STATES of America v. Donald GREEN, a/k/a "Sly," "Stone;" Darryl Johnson, a/k/a "Reese;" Derwin Rodgers, a/k/a "D.D.," "D;" Harold Smallwood, a/k/a "Skip," "Big Skip;" Edward P. Burton, a/k/a "Blue;" Jens Jamison, a/k/a "Chauncey;" David Williams, a/k/a "Dave Dog;" Defendants.
• Court: U.S. District Court — Western District of New York

842 F. Supp. 68

UNITED STATES of America v. Donald GREEN, a/k/a "Sly," "Stone;" Darryl Johnson, a/k/a "Reese;" Derwin Rodgers, a/k/a "D.D.," "D;" Harold Smallwood, a/k/a "Skip," "Big Skip;" Edward P. Burton, a/k/a "Blue;" Jens Jamison, a/k/a "Chauncey;" David Williams, a/k/a "Dave Dog;" Defendants.

No. 92-CR-159C.

United States District Court, W.D. New York.

January 21, 1994.

Patrick H. NeMoyer, U.S. Atty. (William J. Hochul, Jr., Asst. U.S. Atty., of counsel), Buffalo, NY, for U.S.

Terry Granger and Alan S. Hoffman, Buffalo, NY, for defendant Donald Green.

Alan D. Goldstein and Daniel M. Griebel, Buffalo, NY, for defendant Darryl Johnson.

E. Carey Cantwell, Buffalo, NY, for defendant Derwin Rodgers.

Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria (Herbert L. Greenman, of counsel), Buffalo, NY, for defendant Harold Smallwood.

Walsh & Fleming (Robert G. Walsh, of counsel), Buffalo, NY, for defendant Edward Burton.

Murray & Coleman (Glenn E. Murray, of counsel), Buffalo, NY, for defendant Jens Jamison.

Anthony F. Leonardo, Rochester, NY, for defendant David Williams.

CURTIN, District Judge.

BACKGROUND

On January 11, 1993, defendants Donald Green, et al., moved to suppress all evidence of telephone conversations initiated by Green and others¹ while inmates of Shawangunk Correctional Facility, as well as any evidence gathered as a result of information gleaned from those conversations. Defendants claim that this evidence was obtained in violation of the Fourth Amendment of the United States Constitution,² as well as the New York State Constitution. They also claim that both Lieutenant Tasker — who made the tape-recordings and forwarded them to the Buffalo Police Department and the F.B.I. — and Superintendent Mann — who at least nominally oversaw Tasker's operation — violated 18 U.S.C. §§ 2510-2521 ("Title III") by respectively conducting and approving wiretapping surveillance without a court order.

The government responded that the tape-recording of inmate conversations without a warrant was proper under two statutory exceptions to the Title III requirement. First, the inmates were informed that their calls would be monitored, so their subsequent use of the telephone system implied consent under § 2511(2)(c). Second, Lieutenant Tasker made the tapes as part of the prison's ordinary course of business pursuant to § 2510(5)(a)(ii). The government further argues that because prisoners do not have a reasonable expectation of privacy, electronic monitoring and tape-recording of their telephone conversations do not constitute violations of either the United States or the New York State Constitution.

The Magistrate Judge held a hearing to determine the extent of the notice given to inmates at the facility regarding telephone monitoring and taping. The government offered into evidence an Inmate Orientation Handbook which explained the telephone system and stated that all conversations would be monitored. However, the manual did not indicate that the calls would be tape-recorded, nor was any warning given that use of the phones constituted consent to the monitoring.³ The government also produced a signed acknowledgment of receipt of the handbook by Green and a log entry showing that Green attended an orientation session in which the phone system was reviewed. The size, appearance, position, and contents of the notices placed near the telephones which alerted callers to the prison's monitoring capabilities were documented. Finally, the government introduced a transcript of portions of several tapes (Govt. Ex. 1) which demonstrated that Green was aware of the monitoring and warned the parties on the line to be careful about what they said.

The defendants countered the government's assertion that notice was adequate to constitute implied consent with testimony from other inmates. These witnesses admitted that they knew prison officials could listen to conversations but stated that they were told the calls would not be taped. The defendants also presented some evidence to indicate that the placement of the posted notices may not have met the New York State prison requirements, that Green's orientation session had occurred after the taping of his conversations began, and that the pertinent information on monitoring was never covered during orientation. Appendix, Tab 18 at 7. The defendants also objected to introduction of the excerpted transcript.

On September 16, 1993, the Magistrate Judge issued a Report and Recommendation that defendants' suppression motion be denied in its entirety. The Magistrate Judge found that the notices placed near the telephones, combined with the information given in the orientation manual and session, were sufficient to constitute implied consent to the monitoring and taping of phone conversations. Finding implied consent, the Magistrate Judge ruled that tape-recordings could properly be used as evidence absent a warrant because the procedure satisfied the consent exception to Title III, 18 U.S.C. § 2511(2)(c). The Magistrate Judge also ruled that Lieutenant Tasker taped Green's telephone calls as part of the facility's ordinary course of business. The defendants now appeal this recommendation to this court, which must make a de novo review of both the law and the facts at issue.

DISCUSSION

I. Federal v. State Law

The New York State Constitution, Art. 1, § 12 protects a right to privacy of telephone conversations. Defendants argue that this court is bound by the State's more stringent standard which does not permit use of evidence obtained through tape-recordings of phone conversations when there is only implied consent by one party. See United States v. Sotomayor, 592 F.2d 1219 (2d Cir. 1979).

The government argues that Sotomayor only applies to state officials acting under a state court wiretap order issued pursuant to a state wiretap statute. See U.S. v. Falsetti, 721 F.Supp. 452, 456 (W.D.N.Y.1988). It claims that the facility staff's conduct comported with the pertinent New York regulations, which expressly authorize the policy of monitoring and taping inmates' telephone conversations. The New York wiretapping statute does not give prisoners greater protection than Title III.

The Magistrate Judge concluded that even if there were a conflict between state and federal law, the Title III provisions which specifically permit use of consensual recordings control over state eavesdropping regulations. U.S. v. McNulty, 729 F.2d 1243 (10th Cir.1984). Tab 16 at 11. I agree that federal law controls whether the tape-recorded interception of telephone conversations at a New York state prison can be used as evidence in federal court.

II. Title III

18 U.S.C. §§ 2510-2521 ("Title III") generally prohibits the intentional interception of telephone conversations in the absence of a court order. This prohibition extends to prison communications. U.S. v. Amen, 831 F.2d 373 (2d Cir.1987), cert. denied, 485 U.S. 1021, 108 S.Ct. 1573, 99 L.Ed.2d 889 (1988). The government relies on two exceptions to the Title III requirement to argue that the tapes may be admissible.

A. Prior Consent Exception

Section 2511(2)(c) states that it is not unlawful "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." The government argues that the tape-recordings were proper without a warrant because the inmates were on notice that their telephone calls were being monitored and that such notice constitutes implied consent.

Defendants attempt to distinguish acquiescence from consent and argue that neither the defendants who were inmates of Shawangunk or those receiving telephones calls ever consented to the tape-recording. They maintain that the inmates were never informed that the telephone conversations would be recorded and used against them in a criminal investigation. Tab 10 at 8-22.

Two Second Circuit Court of Appeals cases are controlling on this issue. In U.S. v. Amen, the court ruled that advance notice to prisoners that their telephone calls could be monitored and recorded and that use of the phone system constituted consent to such monitoring sufficed to meet the requirements of the consent exception under Title III. 831 F.2d at 378-79. U.S. v. Willoughby, 860 F.2d 15, 20-21 (2d Cir.1988), sanctioned the use of the tapes against nonprisoners receiving inmate calls as long as consent is found on the inmate's part.

The defendants in both Willoughby and Amen were fully informed of the monitoring and recording system. More importantly, they were notified that their phone conversations would be tape-recorded, could be used against them, and that such advance notification constituted consent. In both cases, the notices posted above the telephones explicitly stated that the Bureau of Prisons had the authority to monitor calls and that "`use of institutional telephones constitutes consent to this monitoring....'" 860 F.2d at 20. In Willoughby, this notification of implied consent was repeated in the orientation session and in a form signed by inmates.

It is clear that inmates at Shawangunk received less notice of the prison's capacity to record the telephone conversations than did inmates in either Willoughby or Amen. Shawangunk inmates were informed that the prison system maintained the ability to monitor their phone calls with notices posted close to the telephones, and a brief mention in the orientation handbook and possibly at an orientation meeting. However, they were never told that use of the phone system constituted consent to be recorded, or that the prison could use the tapes as incriminating evidence in a criminal investigation against them.

The government argues that even without explicit notice that use of the telephones constituted consent, Green knew that the phones were monitored and that any...