Opinion
8:01CR106
October 12, 2001
MEMORANDUM AND ORDER
This matter is before the court on defendant Montiel-Flores' objections, Filing No. 59, and the objections of the United States, Filing No. 62, to the report and recommendation of the magistrate, Filing No. 57. The magistrate granted in part and denied in part defendant Montiel-Flores' motion to suppress, Filing No. 28. The magistrate also filed an earlier report and recommendation, Filing No. 56, but no objections have been filed by any of the parties. The Indictment, Filing No. 1, charges defendant Montiel-Flores and co-defendants William Gienger and Jami Fitzgerald, in Count I, with knowingly and intentionally conspiring with the intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) (b)(1), and 21 U.S.C. § 846. Pursuant to 28 U.S.C. § 636 (b)(1)(C), I am to make a de novo determination of those portions of the report or specified proposed findings or recommendations to which the parties object. To that end, I have carefully reviewed the record, the transcripts of proceedings, the reports and recommendations of the magistrate, the briefs, the exhibits, and the relevant case law, and I conclude that the reports and recommendations of the magistrate should be adopted in part.
FACTS Initial Search — Gienger
The facts are a bit complicated as there are multiple searches, arrests and legal issues. On or about March 15, 2001, Officer Scott Beran and his partner Officer LeClair observed a vehicle fail to signal a turn. The officers signaled for the driver to pull over to the side of the road. The driver obliged. Beran asked the driver for the paperwork on the car. The driver indicated that he did not have the paperwork. When asked for his Social Security number, the driver indicated that he did not know it. Further, the driver gave his name as "Greg Gienger." Officer Beran believed that the driver had given him false information. A young boy was accompanying the driver of the car. Officer Beran asked the boy if he knew the name of the driver. The young boy indicated that the driver's name was "Greg Gienger."
The officers ran the plates and determined that the car did not belong to Geinger. Gienger suggested to the officers that they go to his house to obtain the paperwork for the car The officers and Gienger, who was cuffed, went to the street address provided by Gienger. At that address they found Gienger's mother and brother. The mother identified Gienger as "William Gienger" who also indicated that there was no paperwork at the house. A record check then showed that there was an outstanding felony and several misdemeanor warrants against Gienger. Gienger then offered to take the officers to his real residence and obtain the paperwork on the car. The officers agreed.
Gienger took the officers to a trailer located at 5330 North 16th Street. Theresa Reuling came to the door of the trailer. Gienger told Reuling that the paperwork was in a dresser drawer. She went inside to obtain the paperwork. Officer Beran testified that he was not comfortable with how Gienger described the location of the paperwork, and he was concerned that a firearm might be in the residence. For officer safety reasons, Beran decided, without first obtaining consent, to escort Reuling into the trailer.
Reuling walked to the bedroom, opened the drawer, and obtained the paperwork. While in the bedroom, Beran saw two bongs on a stand and a container of marijuana seeds. Officer Beran and Reuling then proceeded to the living room where Officer LeClair and William Gienger were seated on the couch. Beran indicated to Gienger that enough evidence existed to obtain a search warrant. He then asked Gienger for consent to search without a warrant, and Gienger agreed.
Beran then searched the residence. He found eighteen baggies with methamphetamine residue, empty baggies and syringes. Following the search, both Gienger and Reuling received Miranda warnings. When asked, Gienger indicated that the items found by the officers belonged to him. After determining that there was a felony warrant for Reuling, both Reuling and Gienger were taken to Central Station.
Search of Home — Gienger and Jami Fitzgerald
On or about March 19 and 20, 2001, Omaha police officers executed a search warrant on defendant Gienger's residence, a mobile home, which he shared with defendant Jami Fitzgerald. As the officers walked up to the residence, Gienger exited the front door He was then arrested and patted down for weapons. He was searched and the officers found $990.00 on his person and a baggie of methamphetamine. The officers entered the residence and found two adults and a number of children inside. The officers searched the residence and then left to take Gienger to the Central Office. The two women, Jami and Janice Fitzgerald, were not arrested and remained in the trailer.
Search and Arrest — Montiel-Flores
Following the arrest of Gienger and Reuling, Officer Langan sat in his vehicle to complete the paperwork from the search and arrest. He testified that a vehicle pulled into the driveway in front of the trailer. A man exited the car, turned and stared at Officer Langan, and walked to the rear of the trailer. Officer Langan testified that he was concerned for the safety of the women and children remaining in the trailer and felt like this person "was possibly prowling in the back yard." Tr 23:8-15. Further, because Officer Langan had just conducted an interior search of the residence, he knew that there was no back door to the trailer The driver, later identified as Montiel, returned from the side of the trailer, again looked at Langan, and returned to the back of the trailer. Officer Langan thought that this person kept looking at him in a suspicious way, and he called Officer Desler to return as backup. Officer Langan then activated his unmarked car's police lights, pulled up behind the driver's vehicle and approached the car. At the same time, Montiel had returned to his vehicle and was preparing to get into the car
Officer Langan asked Montiel for a driver's license. Montiel did not have a license in his possession. When asked for his name, Montiel gave what Officer Langan believed to be a fictitious one. Officer Desler then arrived on the scene. Officer Desler noticed two passengers in Montiel's vehicle. Langan then called for additional backup officers.
Langan asked Montiel for permission to search the vehicle. According to Langan, Montiel consented. Langan based this request on the fact that it was very late at night, a search had just occurred and methamphetamine found, and shortly thereafter, Montiel shows up and goes to the back of the trailer. The officers found $1,000.00 in the front seat, but no drugs were found. Officer Desler observed dead plants in the trunk. The officers then knocked on the door and asked Jami Fitzgerald if she knew Montiel. She denied knowing him.
Officer Langan then called Officer James Quaites who had gone to Central Station to interview Gienger. Gienger had indicated that he had a supplier known as "Chewy." Langan then described Montiel's vehicle, and Gienger indicated that the car was the one driven by his supplier. According to Gienger, that supplier had brought Gienger methamphetamine that day. Gienger indicated that Montiel had a quarter of a pound of methamphetamine in his possession and was returning to the Gienger house to sell Gienger some marijuana.
Langan then walked to the back of the trailer and discovered a small baggie of marijuana. The two occupants of Montiel's vehicle were identified as gang members, taken to another precinct, and released. Montiel was then arrested for giving false information and taken to Central Headquarters. Montiel was identified and it was determined that he had a misdemeanor warrant on file for his arrest. Montiel was arrested for the misdemeanor warrant and for giving false information to a police officer.
During the search of Montiel officers found a motel key. The motel room was then searched. Two persons were found in the room, including the daughter of Gienger The officers found no evidence in the motel room.
Montiel challenges the warrantless seizure of his person and the warrantless search of his car on the evening of March 19, 2001.
Intercepted Communications
Officer Desler testified that while working on another case, he went to the Douglas County Corrections Center (DCCC) to work with Officer Kevin Donlan. Donlan routinely monitors prisoner calls in order to obtain information related to his duties in the gang unit. Evidently, all calls at DCCC are monitored as well as recorded. While working with Donlan, a random recorded call was played. Desler recognized the voices of Gienger and Fitzgerald. He listened to the 15-minute conversation. Two other voices: entered the conversation, one known as "Chewy" and the other as "Christina.
There are two bullpens located in the Douglas County Corrections Center. The "dirty bullpen" contained a phone, and that bullpen is where prisoners are initially placed. This area of the prison has no signs indicating that the phone is being monitored, nor are the prisoners advised of this fact. There is no limitation on use of the phone in the dirty bullpen.
Other areas of the prison maintain signs informing prisoners that the phones are monitored. Once prisoners leave the dirty bull pen, all other phones have signs informing them that their calls are monitored. Further, prisoners are required to sign forms indicating their understanding that phones are monitored and are given copies of the policy regarding monitoring of their calls. After prisoners are transferred from the dirty bullpen, they are notified that calls are monitored in the clean bullpen.
Captain McPhillips testified that prisoner calls are monitored for specific reasons, such as allegations of harassment. Police officers must obtain permission from the DCCC in order to listen to recorded calls. The records kept by the DCCC do not distinguish between the dirty and clean bullpens. Following the recording in this case, the dirty bullpen now has an audible warning on the phone that indicates to the caller that the call will be monitored.
During the phone conversation, Gienger told Fitzgerald "that the shit that Chewy had" was hidden outside the residence underneath the trash can. There were additional discussions regarding items that the police had missed in their previous search, including drugs in the plants found in the car driven by Chewy.
After listening to the recordings, Desler called Officer Langan and then drove to the Gienger residence. Additional officers met him there. The screen door was closed and the inner door was open. Desler knocked on the door, and Michael Ryan answered the door. Desler asked to speak to Jami Fitzgerald. Ryan went to get Fitzgerald, and while doing so, Desler and his officers opened the door and entered the trailer. Desler believed that Ryan would destroy evidence, as Ryan was present at two previous searches, and on the tape recording Desler heard Christina state that Mike was "taking care of things."
Janice Fitzgerald then entered the living room. Janice Fitzgerald is Jami Fitzgerald's mother. Desler discussed the conversations he overheard as set forth above. He told her he knew there were drugs in the house, and he needed her permission to search the residence. According to the Janice Fitzgerald, both she and Michael Ryan were initially handcuffed. Janice Fitzgerald testified that her three-year-old grandson was present, and that Officer Desler told her that both of them would end up at police headquarters. Desler further indicated, according to Janice, that he did not intend to leave until he found the drugs. She gave consent, and then after being told by Desler what information was in the Omaha Police Department Permission to Search, she signed the consent to search form. Ex. 6. A search began and methamphetamine was discovered.
The officers also obtained a search warrant for Montiel's vehicle. Methamphetamine was found inside a stuffed animal which was buried in the plant in the car
FINDINGS OF THE MAGISTRATE A. Report and Recommendation — Gienger car stop — (Fillng No. 56)
The magistrate determined that Gienger did not challenge his initial traffic stop nor his subsequent arrest. He did, however, challenge Officer Beran's entry into his trailer He argued that the entry was unlawful and thus the evidence found and the statements made should have been suppressed. The magistrate determined that the government failed to meet its burden of showing exigent circumstances such as to justify warrantless entry into the residence. Welsh v. Wisconsin, 466 U.S. 740, 750 (1984). The magistrate determined that the offenses in this case were minor, Gienger was already in custody and under arrest, so the paperwork on the car was not going to assist him. Further, Officer Beran did not ask permission to enter the home. He told Ms. Reuling that he was entering the trailer, and he had no information that she was dangerous or that weapons existed. The magistrate then concluded that the government did not demonstrate exigent circumstances sufficient to permit a warrantless search of the residence. She suppressed the indicia of drug use observed by Officer Beran as well as the subsequent statements made by Gienger.
B. Report and Recommendation — March 19 2001, Initial Search and Seizure of Montiel and his Vehicle (Filing No. 57)
The magistrate determined that Officer Langan had a reasonable suspicion of criminal activity that justified the initial stop of Montiel. Terry v. Ohio, 392 U.S. 1, 21-22 (1968). According to Officer Langan, he knew that there was no back door to the trailer, and he believed that Montiel could be a prowler on the property. Further, it was very late at night. The magistrate concluded that the stop was reasonable under the totality of the circumstances.
According to Officer Langan, Montiel then gave permission to search his car. The officers found $1,000.00 and then learned of Gienger's statement regarding Montiel's alleged possession of methamphetamine and marijuana. The marijuana was then discovered behind the trailer. Montiel had given misinformation to the police officers regarding his identity. The magistrate determined that this was sufficient to arrest. United States v. Hathcock, 103 F.3d 715, 719 (8th Cir 1997). Additionally, the magistrate found that Montiel consented to the search of his vehicle and that no evidence of coercion or duress were involved.
C. Report and Recommendaion — Interception of Telephone Communicaions Filing No. 57)
As previously discussed, while in the dirty bull pen, the phone calls made by Gienger and Montiel were recorded. The magistrate determined that Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510-2521, was violated by the interception of the calls. This Act prohibits the recording of both oral and wire communications without a warrant unless an exception applies. 18 U.S.C. § 2510 and 2515. There are exceptions to this law which include consent and use by law enforcement in the ordinary course of duty. 18 U.S.C. § 2510 (a). The magistrate concluded first that the interceptions constituted wire communications under the statute. She further concluded that the law enforcement exception did not apply, as Captain McPhillips testified that there was no jail standards requirement that these calls be recorded. Further, the magistrate found that Gienger and Montiel did not consent to having their phone calls monitored, nor was there any argument by the government that security required the monitoring of these calls. The magistrate concluded that based on the facts in this case, the communications must be suppressed.
The magistrate next discussed whether the interception of these calls, which she determined to be illegal, required any evidence derived therefrom to be suppressed. It is clear that 18 U.S.C. § 2515 requires the suppression of any evidence acquired as a result of an illegally intercepted communication. The magistrate determined that "the information obtained from the illegal tape recordings provided the sole basis for the continued investigation." Filing No. 57 at 23. She recommended that Montiel's motion to suppress be denied as to the initial March 19, 2001, search of his vehicle and person and granted as to the interception and evidence relating to the search warrant issued on Montiel's vehicle. Further, the magistrate granted Gienger's motion to suppress, Filing No. 31, and paragraphs three through six of his first motion to suppress, Filing No. 30.
OBJECTIONS BY DEFENDANT MONTIEL
Defendant Montiel filed objections to the report and recommendation of the magistrate. Filing No. 59. Montiel first argues that the magistrate should have specifically found that the interception and recording constituted an illegal search under the Fourth Amendment to the United States Constitution. Second, he contends that it is unclear whether the magistrate's recommendation goes only to suppression of the fruits of the search warrant for Montiel's vehicle or whether it includes all of the fruits of the illegal interception and recording. This would include the second search of the Gienger residence. Third, Montiel contends that the magistrate erred in finding that the officer had reasonable suspicion to believe that he was about to engage in criminal activity. Fourth, Montiel alleges that he was unlawfully transported to Central Station for an "identity check." Therefore, argues Montiel, the subsequent search of his person would be unlawful. Fifth, Montiel objects to the magistrate's finding that he gave consent to search the vehicle on the evening that he was arrested.
OBJECTIONS BY THE UNITED STATES
The United States objects to the findings and conclusions of the magistrate with regard to the telephone calls that were monitored and intercepted in the dirty bull pen. First, the United States argues that the record supports a finding that the law enforcement exception does in fact apply. Captain McPhillips testified that EverCom, the company that installed and maintains the DCCC phone system, allows the prisoners to make "free telephone calls to their attorney, it also allows the timing of telephone calls, and it also provides us security measures with the taping of calls." Tr. at 205:17-32. He further stated: "It allows for if we have complaints that the staff is bringing in contraband, and we would track it that way. If an inmate is calling and threatening a witness, that can be tracked." Tr. at 207:12-18. He also testified that phone calls are monitored when they are advised that there is a threat to the security of the facility. Tr. at 240:18-20. On this basis, the United States argues that there is sufficient evidence to conclude that the law enforcement exception applies.
The United States also objects to the magistrate's finding that the persons in jail do not understand that their calls are being monitored. See Exhibits 8 and 9. Exhibit 8 states that the area is monitored. One entering the dirty bull pen could see that sign, according to Captain McPhillips. The United States argues that prisoners have a reduced right to privacy in this context. United States v. Peoples, 250 F.3d 630, 636-637 (8th Cir. 2001); United States v. Van Poyck, 77 F.3d 285, 291 (9th Cir 1996). See also, United States v. Amen, 831 F.2d 373, 379 (2nd Cir. 1987) (court discusses security concerns and monitoring of telephone conversations).
ANALYSIS A. Criminal Activity
Montiel argues that the magistrate had no reasonable basis upon which to base her determination that Officer Langan had reasonable suspicion of criminal activity on the part of Montiel. A police officer is permitted to stop a person if he has a reasonable suspicion that the person is about to engage in criminal activity. Terry v. Ohio, 392 U.S. 1, 21-22 (1968). The suspicion needed under Terry does not rise to the same level as that needed for probable cause. United States v. Gonzales, 220 F.3d 922, 925 (8th Cir. 2000). Reasonable suspicion does require ""a particularized and objective basis' for suspecting a person stopped of criminal activity." Ornelas v. United States, 517 U.S. 690, 696 (1996); United States v. Gonzales, 220 F.3d at 925.
I must determine whether the facts collectively indicate that reasonable suspicion existed. United States v. Cortez, 449 U.S. 411, 417 (1981). I find that Officer Langan had just assisted in executing a search warrant at that residence. Drugs were found on the premises.
Montiel entered the premises late at night in a car and then proceeded on two different occasions to go behind the trailer. Further, Officer Langan knew that there was no back door to this residence. Officer Langan also testified that he was worried about the safety of the women and children still in the trailer. Although I find this to be a very close issue, I conclude that these specific facts support a finding that reasonable suspicion of criminal activity existed in this case and adopt the findings of the magistrate in this regard.
B. Search of Vehicle
Officer Langan testified that Montiel, when asked, gave immediate permission to search the vehicle. The officers found $1,000.00 but did not find any drugs at that time. I must determine if the consent was given freely and voluntarily. United States v. Palacios-Suarez 149 F.3d 770, 772 (8th Cir 1998). Consent depends on the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Relevant characteristics to be considered include age, intelligence and education, chemical intoxication, whether the individual was informed of the right to withhold consent, and whether the suspect understood the rights of his criminal investigation. United States v. Smith, 2001 WL 909337 (8th Cir. August 14, 2001) United States v. Chaidez, 906 F.2d 377, 381 (8th Cir. 1990). Further, "To assess the environment surrounding the consent, we consider the length of time that the suspect was detained and questioned; whether the police intimidated the suspect; whether the suspect relied upon promises or misrepresentations made by the police; whether the suspect was in custody' when the consent was given; whether the encounter occurred in a public or secluded place; an whether or not the suspect objected to the search." United States v. Sanchez, 156 F.3d 875 878 (8th Cir. 1998). The burden is on the government to prove that the search was consensual or at least that the officers reasonably so believed. Florida v. Royer, 460 U.S. 491, 497 (1983).
I am particularly concerned about the testimony of Officer Langan, as well as the lack a testimony of any of the witnesses supporting the assertion of consent. Mark Langan testified under direct:
Q: Okay. And did he give you permission to search his car?
A: Yes.
Q: Can you recall for me, Sergeant, exactly the words you used when you asked Mr. Montiel-Flores if you could search his car?
A: I can't recall the exact words, but it basically would have been do you have a problem if we search your car.
Q: Okay.
A: or can we search your car. It really is difficult to recall exact words at this time.
Q: Okay.
A: But that's basically how I presented the question to him.
Q: And his response was what, Sergeant?
A: Without hesitation, that we could search his car.
Q: Now, why do you say without hesitation?
A: Some people that we ask for permission to search for houses or vehicles don't immediately grant it, some don't grant it, some ask questions about what will happen if they don't allow a search, and depending on the circumstances, that depends on the answer that we give. But this individual stated I could search his car without asking any questions or raising any objections or anything like that.
Q: Okay. Thank you. Can you recall for me the words — the exact words he used to convey that he had given what you believed to be his consent?
A: No, I can't recall the exact words.
Q: All right. When you asked him for permission to search, did you do so in the English language?
A: Yes.
Q: Did he convey his answer to you in the English or Spanish language?
A: English.
Tr 30:13-25-31:1-25.
Further, testimony by Officer Langan continued as follows:
Q: Okay. Why did you ask him if you could search his car?
A: Well, the vehicle had arrived at the scene of a previous drug search warrant — within minutes of a drug search where methamphetamine had been located. That coupled with the individual's actions where I observed him go twice into the back yard of the address to re-emerge to the front, knowing that there was no back door to the address, raised my suspicions to the point where I wanted to ask to see if he would allow the search of his vehicle.
Tr at 32:1-11.
Officer Langan also testified that when he first walked up to Montiel, Langan took his badge off of his belt and showed it to Montiel. He identified himself as an Omaha police officer and asked for a driver's license. When Montiel indicated he did not have a license, Langan asked for his name. Langan testified that these responses were given in broken English. Tr. at 80. Officer Desler substantiated the claim that Montiel spoke in broken English. Tr. at 152-153.
It does not appear from the record that any questions were asked of the three men concerning what they were doing on the premises. In fact Officer Langan testified that no questions of that type were asked by law enforcement to the two passengers in Montiel's vehicle. Tr. at 82. If Officer Langan suspected criminal activity; in particular burglary, and if he feared for the safety of the occupants, one would reasonably expect an inquiry of Montiel as to why he was on the premises. It is clear that Officer Langan believed this was a drug-related event. Consequently, he searched the car.
The only evidence contained in the transcript is testimony by Officer Langan that Montiel consented. Although the record lacks any direct evidence of coercion or duress, the consent was requested late at night in a remote area with one police officer who was armed, still in raid gear, strobe lights flashing, with Montiel's vehicle blocked in the driveway, and with what appears from the record to be at least a potential language issue that would require the officers to further inquire of Montiel. Officer Langan had not received information from Officer Quaites that Montiel could be a supplier. Furthermore, prior to the search none of the officers knocked on the door of the trailer to determine if the occupants knew Montiel or whether he had permission to be on the premisses. No evidence was elicited in the transcript, other than Officer Langan's statement that Montiel consented, that would permit the officers to have a reasonable belief that Montiel voluntarily consented. The record is nearly void in that regard. Because the government has failed to meet its burden of proof, I conclude that the evidence seized during the first search of Montiel's vehicle should be suppressed. I do not adopt the findings and recommendations of the magistrate on this issue.
C. Unlawful Identify Check
Montiel next argues that the police took him into custody for the sole purpose of conducting an unlawful identity check of him. Brown v. Texas, 443 U.S. 47, 52 (1979). Brown, relied upon by Montiel, is distinguishable, because the police officers had no reasonable suspicion or probable cause to detain the defendant and ask him to identify himself. In the case at hand, Officer Langan was able to articulate reasonable facts that caused him to be suspicious of the conduct exhibited by Montiel. I have already concluded that the initial stop was reasonable. Consequently, Officer Langan was permitted to make inquiry and request a license or identification. Adams v. Williams, 407 U.S. 143, 146 (1972); United States v. Tuley, 161 F.3d 513, 515 (8th Cir. 1998). First, Montiel had no identification on his person. Second, Langan testified that he did not believe Montiel had given his correct name. Montiel refused to give his home address and had given several dates of birth. Finally, when Officer Langan spoke with Officer Quaite, Officer Quaite indicated that Gienger identified his supplier's car as one that looked like Montiel's vehicle. Giving false information to a police officer constitutes grounds for arrest. United States v. Hatheock, 103 F.3d 715, 719 (9th Cir. 1997). Further, based on the collective knowledge of the officers, I agree with the magistrate that there existed probable cause to arrest Montiel. United States v. Gonzales, 220 F.3d 922, 925 (8th Cir. 2000).
D. Interception of Telephone Communications
Montiel requests that this court rule that the Fourth Amendment as well as the federal wiretap statutes, 18 U.S.C. § 2510-2521, are both a basis for illegal interception of communications in this case. Further, Montiel argues that all fruits should be suppressed for all defendants, including the second search of Geinger's residence. The United States argues that the magistrate erred in finding that the law enforcement exception is inapplicable, that the defendants did not have knowledge that the calls were being monitored, and concluding that the Fourth Amendment was violated by law enforcement listening to the defendants' phone calls.
It is clear that prisoners have a reduced expectation of privacy because of the needs of the prison. Hudson v. Palmer, 468 U.S. 517, 524 (1984). There must be a reasonable expectation of privacy in order for the oral communication to be protected. 18 U.S.C. § 2510 (2). Interception of communications cannot be a search under the Fourth Amendment or an "oral communication" under the federal wiretap law, absent a showing of a reasonable expectation of privacy. Smith v. Maryland, 442 U.S. 735, 739 (1979); United States v. Peoples, 250 F.3d 630, 636 (8th Cir. 2001). Inmates are entitled to notification that their telephone communications are being monitored. United States v. Workman, 80 F.3d 688, 693 (2nd Cir. 1996). Thus, the Fourth Amendment is triggered if there is a privacy interest where there is no notice or consent.
First, I agree with the magistrate that the calls in question in this case constitute "wire communications" within the meaning of 18 U.S.C. § 2510. Second, I agree that there is no evidence that the consent exception applies. The evidence offered by the government, Exhibits 8 and 9, did not give notice to prisoners that the calls in the dirty bull pen are being monitored. There were no notices posted in the dirty bull pen. Use of the phone in the dirty bull pen was generally unregulated. Those being held in the bull pen were not given information nor made to sign acknowledgments that they had notice of the monitoring. There was no audible warning when using the phone. Prisoners initially taken into custody were not so informed. It appears, in addition, that telephone calls from attorneys made from other than the attorneys' offices were at times monitored. Further, as pointed out by the magistrate, there was no testimony that the calls monitored from the dirty bull pen were conducted on the basis of security issues, and if anything, those calls were inadvertently intercepted. Filing No. 57, at 20; Testimony of Captain McPhillips.
The United States argues that the "law enforcement" exception should apply. However, the magistrate specifically found that the government did not argue that this exception applied. Fling No. 57 at 17. Captain McPhillips actually testified that there was no correctional policy directing the center to record telephone calls. Such monitoring must be done in the ordinary course of business. To be part of the user's ordinary course of business, to allow an exception, the use should be (1) for a legitimate business purpose, (2) routine, and (3) with notice. 18 U.S.C. § 2510 (5); Adams v. City of Battle Creek, 250 F.3d 980, 984 (6th Cir. 2001).
I conclude that the facts as outlined under the narrow set of circumstances in this case accorded the prisoners in the dirty bullpen a right of privacy in use of the telephone. This privacy extends to both the federal wiretap statute as well as the Fourth Amendment. Further, I conclude, as did the magistrate, that the information obtained by listening to the tape recordings was the only connection to the illegally obtained evidence. There was no other connection that would have caused the officers to return and., search Geinger's residence or Montiel's vehicle. As such, all evidence seized as a result of the telephone interceptions is hereby suppressed as to all fruits of the intercepts and as to all defendants. The magistrate's report and recommendation is adopted in this regard.
THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED THAT:
1. The magistrate's report and recommendation, Filing No. 56, is adopted;
2. The magistrate's report and recommendation, Filing No. 57, is adopted in part as set forth herein.