United States District Court, S.D. California
ORDER DENYING MOTION TO SUPPRESS [Dkt. No. 182]
ROGER T. BENITEZ, District Judge.
Now before the Court is Defendant's motion to suppress all wire and electronic surveillance evidence (filed December 2, 2014). Defendant's motion to suppress is denied.
According to the Government, in the spring of 2012, a law enforcement task force began investigating a conspiracy to distribute methamphetamine and collect "tax" money from drug dealers that operated with associates both inside and outside state and local detention and prison custodial facilities. As a result of the investigation, approximately 70 individuals have been charged. During the investigation, a number of wiretap orders were applied for and issued by judges in this and other United States District Courts. According to the Indictment, Garibay was not incarcerated at the time of the investigation, but he may have been communicating telephonically to associates that were incarcerated.
Defendant now seeks to suppress evidence of telephone conversations between himself and others. According to the motion, Defendant's communications were captured on target telephones #1, 2, 3, 4, 5, 6, and 7. He seeks to suppress the interceptions obtained by wiretap orders dated July 24, 2012 and August 23, 2012. All nine wiretap orders in this district were issued by United States District Judges Hon. Irma E. Gonzalez and Thomas J. Whelan. Defendant does not identify a particular interception for which he seeks suppression. The Government does not contest Defendant's standing to challenge the admissibility of wiretap evidence.
I. THE FOURTH AMENDMENT DOES NOT PROTECT CELLULAR TELEPHONE COMMUNICATIONS BY A PRISONER
Defendant does not argue a Fourth Amendment right to suppression of his telephone conversations. He relies, instead, on the wiretap statute. Nevertheless, it is important to note that in most cases the Fourth Amendment protects the rights of the people "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Its protection extends to telephone conversations and requires the government to obtain a warrant before electronically eavesdropping.
However, the protection applies only if a person has a reasonable expectation of privacy in not having his words or conversation overheard. See Katz v. United States, 389 U.S. 347 (1967). No court has ruled that a prison inmate (or a person communicating by telephone with an inmate) has a reasonable expectation of privacy for communications the inmate makes by cellular telephone. Defendant cites no case. Indeed, the United States Supreme Court decided that the Fourth Amendment proscription against unreasonable searches does not apply to a person within the walls of the prison cell. See Hudson v. Palmer, 468 U.S. 517, 525-26 (1984) ("[W]e hold that society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and that, accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell. The recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions.").
Under Palmer, Defendant may have no Fourth Amendment right to privacy while communicating with an incarcerated person.
II. A COMMUNICATION THROUGH USE OF A CONTRABAND CELL PHONE BY A PRISONER IS NOT COVERED BY 18 U.S.C. § 2518 ("TITLE III")
Defendant argues that the wiretap application supporting each wiretap order, which led to the interception of his cellular telephone communications, did not satisfy Title III. See Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510 et seq. ("The Wiretap Act" or "Title III"). As a general matter, Title III prohibits electronic surveillance by the federal government except under defined circumstances. The Act also provides for suppression of evidence in three instances enumerated in 18 U.S.C. § 2518(10)(a). Defendant explicitly relies on (i) and (ii) of § 2518(10)(a) to suppress.
Whether Title III applies to cellular telephone communications by or between prison inmates is a question of first impression. Title III was enacted in 1968, before the invention of the cellular telephone. It was enacted to protect the Fourth Amendment right to privacy for telephone conversations (as recognized in Katz v. United States, 389 U.S. 347 (1967)). See Gelbard v. United States, 408 U.S. 41, 47 (1972) (legislative history is clear that Congress was concerned about "safeguard[ing] the privacy of innocent persons."); see also United States v. Forrester, 616 F.3d 929, 945 (9th Cir. 2010) ("Supreme Court has routinely acknowledged that § 2518... was enacted specifically to meet the constitutional requirements for electronic surveillance enunciated by the Supreme Court in Berger [ v. New York ] and Katz v. United States . "). While there have been more recent amendments, Title III still does not specifically mention cellular telephones.
The Ninth Circuit has acknowledged that a conventional wiretap order may apply to a cellular telephone in ordinary circumstances, and that a "roving wiretap" order is not required for a cell phone even though a cell phone has no fixed location. See United States v. Oliva, 705 F.3d 390, 400-01 & n.4 (9th Cir. 2012) ("As noted earlier, under Title III, the district court may authorize a standard intercept of communications over a land line or cellular telephone only if the government's application includes a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted.' § 2518(1)(b)(ii)."); see also United States v. Goodwin, 141 F.3d 394, 403 (2nd Cir. 1997) (assuming that Title III applies to cellular telephones and deciding that for a cellular telephone, the Government did not need to obtain a "roving wiretap."). But no court has addressed the applicability of Title III to a cellular telephone being used by a prisoner.
And no court has considered the impact of Congressional action in 2010 defining a mobile phone to be contraband for federal prisoners. See Cell Phone Contraband Act of 2010, P. L. 111-225 [S 1749], August 10, 2010 (amending 18 U.S.C. § 1791); see also Statement by Senator Feinstein, 155 Cong. Rec. $10112-01, 2009 WL 3171677 ("This bill would close this loophole by defining cell phones as contraband material under Federal law. As a result, any person smuggling or in possession of a cell phone could potentially serve up to a year in prison. A cell phone should never be in the hands of a prisoner. The presence of these cell phones poses a grave safety concern for staff, inmates, and the public. We know that inmates ...