Thursday, July 29th, 2010

Our Blips Aren’t Sealed

United States v. Amanuel, No. 06-1103-cr (2d Cir. July 29, 2010) (Cabranes, Katzmann, Hall, CJJ)

After a nearly eight-year journey through both the state and federal courts without being tried, the defendants here will finally have to face the music. In this decision, the circuit vacated most of the district court’s order suppressing the evidence against them.

The State Court Proceedings

In 2002, New York state police officers obtained a warrant to intercept a digital pager used by the defendants, who were suspected of drug trafficking. The officers were supposed to record the intercepted communications electronically, but did not do so. Instead, they visually monitored a clone pager and entered the intercepted information in a handwritten log. When the warrant expired, they gave 84 pages of this material to a state judge for sealing. Based on the contents of the logs, state prosecutors then obtained a warrant to monitor and record the defendants’ cell phones; information from those wiretaps provided probable cause for the issuance of search warrants, through which physical evidence was obtained.

Once the defendants were charged in state court, however, they successfully moved to suppress the evidence against them. Under state law, all electronic interceptions are supposed to be recorded electronically. Since the pager intercepts were not, the state court suppressed all evidence that derived both directly and indirectly from the pager interception warrant. Since that was all of the evidence against the defendants, the court dismissed the indictment.

The District Court Proceedings

The feds took up the case in 2005, and charged the defendants with a cocaine conspiracy. The defendants again moved to suppress, and the district court granted the motion. Like the state court, it suppressed all of the evidence. Although the court held that federal law, not state law, governed, it concluded that the handwritten logs were not “sealed” as required by the applicable wiretap statute, 18 U.S.C. § 2518(8)(a). Finding that this was a Fourth Amendment violation, the district court suppressed all the evidence – the pager intercepts as well as the wiretap and physical evidence that derived from them.

On this, the government’s appeal, the circuit held that only the pager intercepts should have been suppressed. It accordingly vacated the remainder of the suppression ruling.

The Circuit’s Rationale

The circuit began by agreeing with the district court that federal law, not state law governs, even though the eavesdropping warrant was issued by a state judge.

The court also agreed that the police had not complied with the relevant federal statute. Section 2518(8)(a) requires that intercepted electronic communications “shall, if possible,” be recorded electronically and in “such a way” that will protect the recordings from “editing or other alterations.” Immediately after expiration of the warrant authorization, the recordings are to be provided to the judge who issued the warrant and “sealed.”

The circuit held that the recording method here – handwritten transcription – did not satisfy § 2518(8)(a). The statute requires mechanical recording that “minimize[s] human involvement and limit[s] the opportunity for intentional alteration and human error.” The court also held that it would have been possible for the state police to record the intercepts properly. A recording device was available, and the state offered no explanation for why it was not used.

Next, the circuit agreed that the sealing requirement of the statute was not met. The state investigators did promptly give the handwritten log to the state judge for sealing. But the sealing requirement flows directly from the electronic recording requirement; records “that do not comply with the recording requirements … are not susceptible to sealing.” Accordingly, the “sealing contemplated by the statue simply was not possible” here. The sealing is supposed to protect the integrity of the recordings; since the handwritten logs already were of suspect integrity, their sealing would be “of little purpose.”

But the circuit disagreed with the district court’s remedy. The statute expressly provides that its own remedies are the only ones available for non-constitutional violations, and the district court erred in finding a constitutional violation. The sealing and recording requirements of § 2518(8)(a) are “evidentiary in nature” and were “enacted to ensure that the communications are admissible under the rules of evidence,” not to safeguard a constitutionally protected privacy right. While the failure to properly record and seal might in some cases “implicate a privacy right,” by itself it does not. And here, since there was a warrant and the defendants made no other privacy claim, there was no constitutional violation.

Thus, the district court erred in suppressing both the intercepted communications and all evidence derived from them. The defendants were entitled only to the statute’s more limited exclusionary remedy: the statute provides only that, absent a seal or a “satisfactory explanation,” the contents of the intercept cannot be used or disclosed in the ways prescribed by 18 U.S.C. § 2517(3). But that subsection discusses only the testimonial use and disclosure of the material. Subsections (1) and (2) are the ones that permit the disclosure use of intercepted communications for investigative purposes, and they are not covered by the remedial language. Accordingly, the exclusionary remedy here only applies to the unsealed pager intercepts themselves – the government cannot offer testimony regarding their contents. But the government is not precluded from offering evidence obtained through the warrants that were based on the pager interceptions.

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