106 F. Supp.2d 92 (2000) | Cited 0 times | D. Maine | July 31, 2000


Presently before the Court are several motions to suppress recordedconversations gathered by the Government under the authority of anOrder Authorizing the Interception of Wire Communications ("theOrder") (Exhibit 1C). The Order was issued pursuant to Title III ofthe Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510et seq. ("Title III"). These motions represent the second roundof motions to suppress the fruits of this wiretap. The Court deniedthe initial motions in a Memorandum of Decision ("the FirstDecision") (Docket No. 193). By the First Decision, and a conferenceof counsel on April 28, 2000, the Court invited Defendants to submitadditional motions to suppress with respect to two issues that hadnot been raised by the initial motions, but which the Court hadidentified during the course of deciding the initial motions. Inparticular, the Court noted: (1) that the Application forInterception of Wire Communications ("the Application") failed torequest permission to use civilian monitors or otherwise inform theissuing judge that such civilian monitors would be used and, as aresult, the language of the Order on its face prohibited theinterception of telephone calls by civilian monitors; and (2) thatbased on the testimony from the evidentiary hearing held with respectto the initial motions, the civilian monitors apparently were notsupervised by law enforcement officers as Title III requires. SeeFirst Decision at n. 14.

Given that this was the first Title III wiretap in this district,and that the issues identified by the Court raised serious concernsabout the propriety of this entire wiretap, the Court determined thatthe best course of action would be to permit Defendants to submitadditional motions to suppress so that the two unresolved issuesidentified by the Court in the First Decision could be adequatelyexamined. In response to this invitation, the Court received severalmotions. Specifically, Defendant Donald Smith has filed a motion(Docket No. 201), Defendant Chaffee has filed a motion (Docket No.202), Defendant Santana has filed a motion (Docket No. 207),Defendant Amado Lopez has filed a motion (Docket No. 209), DefendantOwen has filed a motion (Docket No. 212), and Defendants Mounts andMelendez have filed a joint motion (Docket No. 213) (collectively,"the Motions"). Additionally, Defendant Renaldo Lopez has filed amotion (Docket No. 210) to join the motionsof Defendant Amado Lopez,as well as the joint motion of Defendants Mounts and Melendez. TheCourt held a two-day evidentiary hearing regarding the issuesgenerated by these Motions.

Based on the evidence gathered in the hearings relative to theinitial motions,1 as well as the additional evidentiary hearingheld with respect to the Motions presently before the Court, theCourt makes the following findings of fact.

Pursuant to the requirements of Title III, the Government submittedan application to Chief Judge Hornby as part of its efforts to obtaina wiretap order. The Application requested, in pertinent part, that

this Court [Judge Hornby] issue an Order authorizing special agents of the United States Drug Enforcement Administration and other investigative and law enforcement officers, assisted, if necessary, by qualified translators, to intercept and record wire communications to and from the cellular telephone[s] . . . subscribed to by Orlando Santana, Jr. . . .

Application (Exhibit 1A) at 5. Nowhere in the Application is thereany explicit or implicit request that the issuing judge grantpermission for the use of civilian monitors to intercept telephonecalls during the proposed wiretap.

Based on the Government's Application, Judge Hornby permitted thewiretap by issuing the Order. The Order provides:

Wherefore, it is hereby Ordered that special agents of the United States Drug Enforcement Administration and other investigative and law enforcement officers, assisted, if necessary, by qualified translators, pursuant to the application of the Assistant United States Attorney Jonathan A. Toof, are authorized to intercept and record wire communications to and from the cellular telephone . . . assigned and billed to Orlando Santana, Jr. . . .

Order at 2-3.

The wiretap plant was operated for approximately twenty days. Eachday, monitoring took place from roughly 10:00 a.m. to 2:00 a.m. thefollowing morning. Two civilian monitors were hired by the Governmentto intercept the calls.2 The civilian monitors worked togethersixteen hours a day for the duration of the wiretap. Their dutiesincluded operating the interception and recording equipment,listening to all calls, transcribing the calls onto log sheets,minimizing nonpertinent calls,3 and translating Spanishconversation into English.

The wiretap plant was overseen by assigned shift supervisors. Eachday was split into two eight-hour shifts, with a different shiftsupervisor assigned to each shift. The position of shift supervisorwas filled by Drug Enforcement Administration Special Agents andexperienced law enforcement officers from the Brunswick PoliceDepartment. The shift supervisors were responsible for opening andclosing the plant, securing the tape recordings in evidence bags anda locker, reviewing and signing the log sheets, dispatchingsurveillance teams as necessary, reporting important investigatorydevelopments to thecase agents, and supervising the civilian monitors.

With the exception of trips to the bathroom, the shift supervisorstestified that they were always present in the monitoring plant whilethe wiretap was operational, and the civilian monitors were not leftalone. The one apparent exception is an instance where DrugEnforcement Administration Special Agent McHugh left the plant forten to fifteen minutes to conduct routine surveillance. In additionto the shift supervisors, one or both of the case agents wereregularly present at the plant to monitor the calls or carry outother investigatory activities. Additionally, surveillance teamsroutinely spent down time at the wiretap plant listening tointercepted telephone calls.

While recording the conversation, the monitoring equipmentsimultaneously broadcasted the monitored conversation over a speaker.The calls were audible throughout the room in which the plant waslocated. Accordingly, the civilian monitors, the shift supervisors,and any other law enforcement officers present at the plant couldlisten to each telephone call as it was intercepted. The shiftsupervisors testified that they were familiar with the minimizationinstructions, understood that it was one of their responsibilities toensure minimization efforts were carried out, and would haveinstructed the civilian monitors to minimize a nonpertinent call ifnecessary. However, such instructions from the shift supervisors tothe civilian monitors were apparently unnecessary for two reasons.First, the shift supervisors testified that the civilian monitorswere proficient and professional, and they did not need to beprompted to minimize nonpertinent calls. Second, because a vastmajority of the calls were pertinent to the investigation, the shiftsupervisors and the civilian monitors agreed that very few of theintercepted telephone calls required minimization. Finally, a vastmajority of the telephone calls intercepted were in English, suchthat the civilian monitors were required to translate very few callsfrom Spanish into English.

The Court begins its analysis with the first issue generated by theFirst Decision — that the Government's Application failed to disclosethe Government's intention to use civilian monitors and, as a result,that the use of the civilian monitors represented a violation of theexpress language of the Order, which permitted only law enforcementofficers to intercept calls. Because these two potential violationsrelate to the plain language of two documents — the Application andthe Order — no evidence provided at the second evidentiary hearingoffers further insight into these matters.

In response to the present Motions that raise these issues, theGovernment points out that Title III includes no express requirementthat the Government disclose to the issuing judge, either in itsapplication or otherwise, its intention to use civilian monitors toconduct the wiretap. According to the Government, the failure toinform Judge Hornby in the Application of its intent to use civilianmonitors was an oversight, but it does not constitute a violation ofTitle III.4

Despite the Government's disclosure in the Application of itsintention to use translators, the Court remains troubled by theGovernment's failure to disclose its intent to use civilian monitors.A judge reading the Application would reasonably conclude from thelanguage of the Application that law enforcement officers would beintercepting all telephone calls, with translators standing by to beused only as needed. Obviously, that is not how this wiretap wasexecuted. This Application provided the issuing judge with no noticethat civilian monitors were to conduct the entire intercept.

Despite the absence of a statutory requirement that the use ofcivilian monitors pursuant to § 2518(5) be disclosed in anapplication for a wiretap, this Court believes that such a disclosureis required. The Court reaches this conclusion based on the overallscheme of Title III, which places rigorous burdens on the Governmentand law enforcement officers seeking to employ a wiretap. Morespecifically, this Court finds that an issuing judge is unable toeffectively fulfill his or her statutory duty to ensure that awiretap is conducted properly unless the judge is made aware thatcivilian monitors are being used. Therefore, the Court holds thatimplicit in Title III is a requirement that the Government inform theissuing judge of its intent to use civilian monitors, either in theapplication or by a separate written communication to the issuingjudge, if, subsequent to the issuance of an intercept order, theGovernment decides to seek approval for the use of civilian monitors.

Similarly, the Court finds that civilian monitors may interceptcommunications only if the order authorizing interception expresslyprovides for the use of such monitors. Indeed, the absence of suchexpress authority leads to a violation of the order — as happened inthis case. The Order in this case allowed "special agents of theUnited States Drug Enforcement Administration and other investigativeand law enforcement officers, assisted, if necessary, by qualifiedtranslators . . . to intercept and record wire communications." Orderat 2-3. Yet it is undisputed that the civilian monitors interceptedevery call recorded during this wiretap. Accordingly, the Courtreaffirms its conclusion in the First Decision that the use ofcivilian monitors to intercept calls was a violation of the plainlanguage of the Order in this case. Even though the civilian monitorsfulfilled two roles in this process — as monitors and translators —the Court remains satisfied that the Order was violated. The Orderexpressly states that translators will assist if necessary, yet it isundisputed that very few of the calls intercepted requiredtranslation, such that there was no need for the civilians tointercept every call in their role as translators. As the Court readsthe language of the Order, translators are permitted to translatecalls as necessary — nothing more. This language does not envisionthat because Spanish may be used in some calls, the translators willintercept every incoming call, even when no translation is necessary.More to the point, the language of this Order plainly does notcontemplate that civilian monitors will be exercising their judgmentto decide which calls require minimization.

Having found these two violations — the failure to disclose the useof civilian monitors in the Application and the use of civilianmonitors contrary to the language of the Order — the Court now mustdetermine the appropriate remedy. Title III includes a remedyprovision whereby an aggrieved person may move to suppress thecontents of intercepted conversations. The statute provides that

[a]ny 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, a State, or a political subdivision thereof, may move to suppress the contents of any wire or oral communication intercepted pursuant to this chapter, or evidence derived therefrom, on the grounds that —

(i) the communication was unlawfully intercepted; (ii) the order or authorization or approval under which it was intercepted is insufficient on its face; or (iii) the interception was not made in conformity with the order of authorization or approval. . . .

If the motion is granted, the contents of the intercepted wire or oral communication, or evidence derived therefrom, shall be treated as having been obtained in violation of this chapter.

18 U.S.C. § 2518(10)(a).

With respect to the insufficiency of the Application, the Courtfinds that such aviolation could implicate only § 2518(10)(a)(i),whereas the use of civilian monitors to intercept calls contrary tothe plain language of the Order implicates § 2518(10)(a)(iii).

With regard to § 2518(10)(a)(i), the Supreme Court has held that"not every failure to comply fully with any requirement provided inTitle III would render the interception of wire or oralcommunications `unlawful.'" United States v. Donovan, 429 U.S. 413,433, 97 S.Ct. 658, 671 (1977) (quoting United States v. Chavez,416 U.S. 562, 574-75, 94 S.Ct. 1849, 1856 (1974)). Consequently,"suppression is required only for a failure to satisfy any of thosestatutory requirements that directly and substantially implement thecongressional intention to limit the use of intercept procedures tothose situations clearly calling for the employment of thisextraordinary investigative device." Donovan, 429 U.S. at 433-34(quoting United States v. Giordano, 416 U.S. 505, 527, 94 S.Ct. 1820,1832 (1974)).

Applying the rule of Donovan to this case, the Court concludes thatthe failure of the Government to disclose in the Application itsintent to use civilian monitors does not mean that communicationswere "unlawfully intercepted" under § 2518(10)(a)(i). Although theCourt has determined that Title III implicitly requires theGovernment to reveal to the issuing judge its intent to use civilianmonitors, the Court cannot say that such an implied requirement"directly and substantially" implements "the congressional intentionto limit the use of intercept procedures to those situations clearlycalling for the employment of this extraordinary investigativedevice." Donovan, 429 U.S. at 433-34. Indeed, that the Court hasinferred this requirement from the general scheme of Title IIIessentially dictates a finding that suppression is not warrantedunder the test set forth in Donovan. Accordingly, although the Courtfinds that the Application was deficient, such deficiency did notresult in unlawful interceptions, and therefore suppression is notappropriate per § 2518(10)(a).5

Turning to the violation of the language of the Order, the Courtconcludes that the use of civilian monitors to intercept callscontrary to the plain language of the Order implicates §2518(10)(a)(iii), which addresses those interceptions "not made inconformity with the order of authorization or approval." Although itis tempting to simply apply the rule of Donovan again, a carefulreading of Donovan — as well as of the cases upon which it is based —demonstrates that its holding is limited to alleged violations under§ 2518(10)(a)(i) and does not apply to an alleged violation under §2518(10)(a)(iii). See United States v. Lucht, 18 F.3d 541, 547-48(8th Cir. 1994). The question becomes, then, what standard the Courtshould apply in light of the Court's finding that the use of civilianmonitors violated the plain language of the Order. Obviously §2518(a)(iii) should not be read to require suppression of everyinterception "not made in conformity" with a wiretap order regardlessof the degree to which the manner of interception does not conform toan intercept order. Yet, the Court has been unable to unearth caselaw that provides guidance in this regard. In Lucht, instead of theDonovan test, the court applied well-established minimizationstandards — as the facts in that case generated minimization issues.See Lucht, 18 F.3d at 547-48. However, the minimization standards arenot directly analogous to this issue for two reasons. First, to theextent that improper minimization implicates § 2518(5), a failure toproperly minimize could be characterized as an unlawful interceptionunder § 2518(10)(a)(i), as opposed to a failure to comply with theinterception order per § 2518(10)(a)(iii). Second, to the extent thatan analysis of minimization standards does address a possible failureto comply with the interception order (because, for example, theorder includes or references distinct minimization instructions), theanalysis decides whether the minimization efforts, taken as a whole,constitute a violation of the order, not — as is the case here —whether the violation of the order is sufficiently serious as torequire suppression. Again, the Court has already found a violationof the Order, and the only remaining issue is what is the appropriatesanction.

At least one court has held that § 2518(10)(a)(iii) dictates thatany violation of the intercept order requires suppression. In UnitedStates v. Borch, 695 F. Supp. 898, (E.D.Mich. 1988), Judge Churchill,interpreting United States v. George, 465 F.2d 772 (6th Cir. 1972),held that "subsection (iii), by its own language, unmistakablycontemplates suppression whenever an interception is not made inconformity with the order of authorization or approval." Borch, 695F. Supp. at 902 (internal quotation marks omitted) (emphasis added).However, the Court of Appeals for the Sixth Circuit, in reversing theBorch decision on other grounds, noted that Judge Churchill had readGeorge "too broadly." United States v. Baranek, 903 F.2d 1068, n. 4(6th Cir. 1990). The Baranek court went on to say that they were "notprepared to hold, as did . . . [J]udge [Churchill], that anydeparture from the order or authorization will result, ipso facto, insuppression." Id. Unfortunately, the Baranek court did not explorewhat kinds of "departures" from the order would require suppression,and what kinds would not.

The Court is persuaded by the Baranek court's conclusion that notevery failure to comply with an interception order dictatessuppression. The plain language of § 2518(10)(a) does not demandsuppression if a court finds that any of the requirements ofsubsections (i), (ii), or (iii) have been satisfied; instead, theprovision merely sets forth the grounds upon which a person withstanding may seek suppression. The Court does not understand §2518(10)(a) to strip courts of all discretion to evaluate therelevant facts and circumstances in order to determine if suppressionis appropriate in the circumstances of a particular case.6Accordingly, the Court will evaluate the violation of the Order todetermine if suppression is appropriate.7

The Court begins its analysis by noting that the violation — here,having civilian monitors intercept telephone calls despite theOrder's requirement that law enforcement officers conduct theintercepts — is more than a minor or technical violation. The use ofcivilian monitors to intercept every telephone call monitored duringthis wiretap, despite clear language in the Order to the contrary,represents a significant failure to follow Judge Hornby's Order.8However, the Court is also satisfied from the evidence that theviolation was inadvertent, as opposed to a conscious decision by theGovernment or law enforcement officers to take action they knew to becontrary to an intercept order. Additionally, and most importantly,because the Court, after a full evidentiary hearing, has determinedthat the minimization efforts of the civilian monitors and the lawenforcement officers were sufficient, it has been established thatDefendants suffered no actual prejudice as a result of this violationof the Order.9 In the First Decision, this Court held that theminimization efforts during the course of this wiretap were adequate.Nothing presented in the second hearing alters this Court'sconclusion that the minimization efforts were adequate. Because theuse of civilian monitors did not result in inadequate minimization,Defendants suffered no prejudice as a result of the use of civilianmonitors contrary to the plain language of Judge Hornby's Order.Taken as a whole, the Court does not believe that this violation issufficiently serious that justice requires suppression of the entirewiretap.

The Court now turns to the second issue generated by its FirstDecision, as well as by the present Motions: whether the civilianmonitors were adequately supervised by law enforcement officers, asrequired by Title III. Section 2518(5) of Title III provides, in part, that

[a]n interception under this chapter may be conducted in whole or in part by Government personnel, or by an individual operating under a contract with the Government, acting under the supervision of an investigative or law enforcement officer authorized to conduct the interception.

Title III provides no definition of "supervision" as it is used in §2518(5). Furthermore, no other provision of Title III provides theCourt with direct guidance in determining what degree and quality ofsupervision are required by this section.

In the First Decision, this Court concluded that the supervisionrequired by § 2518(5) must be meaningful and active supervision. TheCourt based this conclusion on the general scheme and purpose ofTitle III. Specifically, this Court concluded that Congressunderstood that a wiretap order represented one of the most invasivelaw enforcement techniques. Accordingly, Title III is replete withsafeguards that work before a wiretap order is granted, during theexecution of the order, and even after the wiretap has ceased. Forexample, Title III requires high-level Department of Justice approvalbefore an application may be submitted to a court, § 2516; itrequires the issuing judge to make detailed findings before the orderis issued, § 2518(3); it requires that nonpertinent calls beminimized during interception, § 2518(5); and it requires that thetapes be sealed and provided to the court promptly followingcompletion of the wiretap, § 2518(5)(a). Given these expresssafeguards, the Court concluded in the First Decision that Congress,in requiring that civilian monitors be supervised, must have intendedthat such supervision be meaningful, active, and continuous, giventhat when civilian monitors are used, any lesser level of supervisioncould result in vital minimization efforts being conducted by personslacking any law enforcement training.

The Court acknowledges that it reached this conclusion in the FirstDecision without the benefit of the legislative history — albeit abrief history — of the amendment to § 2518(5) of Title III thatpermitted the use of civilian monitors to conduct wiretaps. Theprovision allowing civilian monitors to intercept calls was added toTitle III in 1986. After briefly explaining the effect of theamendment, the only legislative document referencing this provisionindicates that the change, requested by the Federal Bureau ofInvestigation, "is designed to free field agents from the relativelyroutine activity of monitoring interceptions so that they can engagein other law enforcement activities." House Report No. 99-647, 99thCong., 2d Sess., 1986 U.S.C.C.A.N. 3555. In light of this short butdirect statement of Congress's intent, the Court must reconsider itsearly conclusion regarding the meaning of "supervision" in § 2518(5).The language of the House Report plainly indicates that Congressintended that supervision of civilian monitors need not becontinuous, nor active, contrary to this Court's previous holding.Obviously Congress intended that civilian monitors could be leftalone — presumably for extensive periods — so that the lawenforcement officers, who would otherwise be conducting theinterceptions themselves, may "engage in other law enforcementactivities." Indeed, were the Court to hold that supervising lawenforcement officers must always be present to supervise civilianmonitors, such a finding would be contrary to the plain legislativeintent evidenced by the House Report.

With this new understanding of what Congress intended to beadequate supervision of civilian monitors under § 2518(5), the Courtexamines the actual supervision provided to the two civilian monitorsthat executed the wiretap in this case. Here, the civilian monitorswere, in essence, constantly supervised throughout the execution ofthe wiretap. All the shift supervisors understood that supervision ofthe civilian monitors was one of their responsibilities, and there isno persuasive evidence to suggest that any of the shift supervisorsfailed to carry out this duty. Additionally, the two case agents, andnumerous other law enforcement officers involved in the investigationand familiar with the minimization instructions, were regularlypresent at the plant, could hear the intercepted calls, and werecapable of providing supervision to the civilian monitors ifnecessary. Accordingly, the Court concludes that the supervision ofthe civilian monitors in this case was more than adequate to meet therequirements of § 2518(5), as explained by the House Report.

Although the Court is constrained to follow the apparent intent ofCongress, the Court is not constrained to agree with it. The Courtfinds it ironic that a process that begins with a requirement thatthe Attorney General or another high-level Department of Justiceofficial provide authorization before the Government may even submita wiretap application could end with a civilian, lacking lawenforcement training, or lacking any education whatsoever,essentially executing the interceptions. The Court finds such aprofound disconnect to be the result of an amendment that passed withno debate, and with no apparent understanding of the history andpurposes of Title III.

The House Report's reference to the process of monitoring calls as"relatively routine" demonstrates a profound misunderstanding of theminimizationrequirements of Title III. Congress may be correct torefer to the process of recording calls and transcribing them as"relatively routine," but monitoring calls includes the additionalrequirement of minimizing nonpertinent and privileged calls. Theminimization effort should be anything but routine. It requiresconstant vigilance to protect the fundamental privacy rights of thosepeople whose communications are being intercepted — including manywho are not named targets of the criminal investigation and who maynever engage in criminal conduct. In essence, minimization requiresthe exercise of instantaneous, sound, legal judgment with respect topotentially complex matters — such as privilege — in order to protectfundamental constitutional rights. The Court cannot agree that theexercise of judgment in that context is "routine" — indeed, if itbecomes routine, then it is not being done properly. Further, theCourt cannot agree with Congress's decision to leave that judgmententirely in the hands of civilians without a single educational ortraining requirement.10

It is apparent to the Court that, in the real world, once thebenefit of the 1986 amendment is utilized by the Government inexecuting a wiretap, the original level of privacy protectionintended by the Congress in enacting the statute becomes ephemeral,if it does not evaporate entirely. The use of private, independentcontractors, potentially without law enforcement experience, mustnecessarily seriously impair the ability of Title III, as aninstrument of an effective legal policy, to guard against unwarrantedinvasion of privacy in the course of investigating criminal activity.The amendment, ostensibly enacted at the behest of the Federal Bureauof Investigation because field agents find the monitoring function inwiretap exercises required by Title III to be unhappily tedious duty,purports to serve the preservation of privacy by requiring"supervision of an investigative or law enforcement officerauthorized to conduct the investigation." 18 U.S.C. § 2518(5). Thelegislative history specifically reflects, however, that the purposeof the amendment is to "free" field agents from their monitoringduties "so that they can engage in other law enforcement activities."House Report No. 99-647, 99th Cong., 2d Sess., 1986 U.S.C.C.A.N.3555. That statement of purpose probably negates, in practical terms,any realistic likelihood of precise, minute, and continuoussupervision of the civilian contract personnel who actively do themonitoring because doing "other law enforcement activities" willalmost certainly take the officers, at least occasionally, out of theenvironment where the monitoring is taking place or divert theirattention for periods of time from the actual interception and itsmonitoring so that their supervision cannot be fully continuous andattentive to the intercepted language. Thus, the standard ofsupervision contemplated by Congress by the amendment is obviouslylooser than that level of attention required to actually perform themonitoring function. The amendment can only be construed to implementa reasonable level of substantial and actual supervision consistentwith the field agents' need to perform other investigatory duties.Clearly, the required level of supervision is not envisaged toreflect that level of attention and focus required of those whoactually execute the monitoring function. Further, the amendmentpermits the substitution of persons of unknown competence, training,and motive for sworn, experienced officers in whom the Court can haveconfidence as being properly trained, competent to execute themonitoring functions, and under an oath and a duty to act inaccordance with the law and the terms of the orders of the Court.

The combined impact of these two considerations generated by theamendment effectively eviscerates, in practical terms, so much of thecongressional mandate as was originally intended by Title III toassiduously guard, by the statute's minimization requirement, theproperly-to-be-protected privacy interests of those investigated forcrime, as well as the privacy interests of innocents who maycommunicate with the investigatory subjects. Hence, the amendmentrenders the statute, in practice, a more imperfect vehicle for therealization of one of its principal purposes than it was originally.The responsibility for this diminution in the effectiveness of thestatute rests with the Congress which made the 1986 amendment.

The rectification of these perceived deficiencies in the statute,as amended, is properly within the legislative role of the Congress,if it wishes to do so. The Court cannot undertake to rewrite thestatute to obviate them, the language of and factual and policypredicate for the 1986 amendment being clearly stated. The Court'sonly proper function in the narrow context of construing therequirement of Title III, in the circumstances of this case, is todetermine if this wiretap was accomplished by the execution of thatlevel of supervision of the civilian monitors contemplated by TitleIII. Having done so, the Court has concluded that the supervision ofthe civilian monitors was sufficient.

Accordingly, the Court ORDERS that the Motions to Suppress ofDefendant Donald Smith (Docket No. 201), Defendant Chaffee (DocketNo. 202), Defendant Santana (Docket No. 207), Defendant Amado Lopez(Docket No. 209), Defendant Owen (Docket No. 212), and DefendantsMounts and Melendez (Docket No. 213) be, and they are hereby,DENIED.11

1. All parties agreed that the evidence gathered in the firstevidentiary hearing would be considered as part of the record for thepresent Motions as well.

2. Section 2518(5) of Title III provides, in part, that

[a]n interception under this chapter may be conducted in whole or in part by Government personnel, or by an individual operating under a contract with the Government, acting under the supervision of an investigative or law enforcement officer authorized to conduct the interception.

3. Minimization is the process by which intercepted telephonecalls that do not pertain to the criminal investigation are notrecorded or listened to for any longer than necessary. Theminimization requirement is set forth in section 2518(5) of TitleIII. For a more detail discussion of minimization, see the Court'sFirst Decision.

4. In its brief, the Government indicates that it intends in allfuture applications to advise the issuing judge of any intent to usecivilian monitors.

5. In addition to the rule of Donovan, the Court notes thefollowing supplemental justifications for not ordering suppression asa result of the defective Application. First, there was no legalauthority that compelled the Government to disclose its intention touse civilian monitors at the time the Application was submitted toJudge Hornby. Second, the Court is satisfied that there was no intenton the part of the Government to deceive or mislead Judge Hornby withrespect to its intent to use civilian monitors to carry out thiswiretap. Indeed, given the express statutory authorization foremploying civilian monitors, there is no reason to believe theissuing judge would not have permitted the use of civilian monitorshad the Application so requested.

6. As an example, in Borch, the violation of the order related toonly one intercepted conversation, such that the district court judgesuppressed only one phone call. In this case, however, the violationof the order relates to every intercepted call. The Court does notbelieve that Congress, in enacting § 2518(10)(a) intended to divestthe courts of the ability to weigh the severity and the breadth of aviolation of the order, such that minor noncompliance with the order,such as recording the intercepted conversations on compact disks whenthe order required audio tapes, commands suppression of the entire wiretap.

7. With respect to § 2518(10)(a)(i), the Donovan Court essentiallymaintained, within the courts, some discretion to determine what itmeans to be an "unlawful" interception. Similar discretion is lesslikely to be available with respect to alleged failures to complywith the intercept order, pursuant to § 2518(10)(a)(iii), as anaction typically either does or does not conform with the interceptorder. Accordingly, this Court's holding that it may assess therelative seriousness of a failure to conform with the intercept orderto determine if suppression is warranted is consistent with Donovan.Both holdings preserve within the courts some amount of discretion todecide if suppression is the proper remedy for a failing on the partof the Government.

8. Indeed, it was the perceived gravity of this nonconformitywhich, in large part, caused the Court to initiate this second roundof suppression motions.

9. By this reasoning, the Court does not intend to suggest thatfailure to comply with an intercept order should result insuppression only if the defendant suffered actual prejudice as aresult. The Court believes the gravity of each alleged violation ofan intercept order must be analyzed in context. Here, based onprevious findings of this Court, it has been established that the useof civilian monitors resulted in no actual prejudice to Defendants.Accordingly, it is entirely appropriate for the Court to consider andrely on that fact in analyzing the severity of this violation of the Order.

10. In the end, it may be preferable to have sufficiently trainedand experienced civilians conduct wiretap interceptions — as theycould be more proficient than law enforcement officers who may haveno experience in this field, or who may work on only one or twowiretaps over the course of a career. Indeed, in this case there isno doubt that the civilian monitors had more experience conductingwiretaps than all of the law enforcement personnel involved, saveSpecial Agent Boyle. One of the concerns the Court has after hearinghow this wiretap was executed, however, is that inexperienced lawenforcement officers will defer, perhaps unwisely, to civilianmonitors who are familiar with the equipment and have experienceconducting wiretaps, but who have no law enforcement training,expertise, or knowledge regarding concepts such as privilege, asidefrom that gained from reading minimization instructions.

11. Defendant Renaldo Lopez has moved to join the motion of AmadoLopez and the joint motion of Defendants Mounts and Melendez, but hasnot, independently, moved to suppress evidence. Accordingly, theCourt grants Defendant Renaldo Lopez's Motion to Join. However, allmotions Defendant Renaldo Lopez has joined are denied by this order.

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