§ 2510(5)(a)(ii). Although not necessary to this decision, I will discuss the application of this exception, because I disagree that Lieutenant Tasker's activities can be construed as operating in the ordinary course of business.
The Magistrate Judge found that the facility had a general policy of monitoring inmate calls, the prisoners were adequately notified of this policy, and Tasker had received Superintendent Mann's express permission to tape Green's conversations; thus, Tasker acted within his duties as a correctional officer. Tab 16 at 21. Defendants argue that this exception cannot be applied to the present case for two reasons. First, the recording of telephone conversations in a prison setting must be viewed as a type of administrative search. In New York v. Burger, 482 U.S. 691, 96 L. Ed. 2d 601, 107 S. Ct. 2636 (1987), the Supreme Court warned that a warrantless search by prison officials must be closely regulated. The regulations must serve a substantial government interest, such as security, within the prison. The search cannot be merely a pretext for a criminal investigation. Defendants distinguish telephone monitoring from the more closely regulated visitation, cell search, and correspondence interceptions and argue that the lack of regulations detailing the scope of telephone monitoring and taping do not survive Constitutional requirements for permissible administrative search. Tab 10 at 28-29.
Defendants' second argument is that the taping of Green's phone calls was not done for ordinary business reasons. Prison officials are given wide scope in determining what measures are necessary for their legitimate task of maintaining prison security. However, in this case the recording of Green's conversations was not done to advance prison security but rather to gather evidence in a criminal investigation.
In U.S. v. Vasta, 649 F. Supp. 974, 989-90 (S.D.N.Y. 1986), the monitoring and recording procedures of prisoners' phone calls were found not to be subject to the restrictions of Title III because the correctional officers doing the monitoring were law enforcement officers acting according to an institutionalized, publicized policy. On appeal, the Amen court affirmed that the Title III restrictions did not apply, but for the reason discussed above; the prisoners impliedly consented to the recording of their conversations based on the notice the prison gave of its monitoring activities. 831 F.2d at 379. The appellate court noted that it did not pass judgment on the applicability of the ordinary course of business exception "except so far as to express our reservation that the prison officials monitored the calls in the ordinary course of their duties." Id. at 378, n. 1.
The government cited several cases in which the routine monitoring of prison calls was found to be ordinary course of business. See United States v. Sababu, 891 F.2d 1308, 1328-29 (7th Cir. 1989); United States v. Paul, 614 F.2d 115, 117 (6th Cir.), cert. denied, 446 U.S. 941, 64 L. Ed. 2d 796, 100 S. Ct. 2165 (1980). In this case, however, the special attention paid to Donald Green's calls appear not at all routine or ordinary. According to the testimony of Lieutenant Tasker, inmate calls were ordinarily recorded on a reel-to-reel tape. Prison officials could listen in on the calls as they were being recorded or at the end of the day. In order to keep the tape-recording, it was necessary to either tape the conversation simultaneously onto a cassette tape or to copy the call from the reel-to-reel before it was taped over.
All of Green's phone calls were recorded on audio cassettes from the day he entered the prison, upon the suggestion of Tasker's fellow officer. A week later, Tasker requested and was granted permission to continue this practice, apparently indefinitely, in an informal meeting with Superintendent Mann. Despite the fact that Tasker allegedly overheard plans to conspire to commit murder, kidnapping, and large illegal drug sales, no prison official ever moved to cut off Green's telephone privileges or warn him that his conversations were being recorded and could be used against him. Instead, Tasker continued for more than one year to record Green's conversations and send them to the Buffalo Police and the F.B.I. for use in an ongoing criminal investigation.
These facts, including the focus on the calls of one particular prisoner, the extraordinarily long time period in which the taping continued, and the large volume of tapes sent out to other investigative agencies, all contrast starkly with prior cases in which a few calls were taped in the course of routine monitoring. Even given the deference prison officials must be accorded in making determinations of what is necessary for security at their facilities, it is difficult to see how Lt. Tasker's actions comported with those needs. Indeed, the government does not attempt to argue that Tasker made audio cassettes of all Green's calls in the interest of maintaining security, but only that Tasker qualified as a law enforcement officer and that the prison facility routinely monitored calls.
That Tasker's activities were not part of the prison's ordinary business is underscored by the fact that in New York State prisons, the monitoring of telephone calls is not subject to the same regulatory controls as other security measures which curtail inmate rights such as reviewing correspondence and limiting visitation. The Amen court voiced concern that tape-recording phone conversations for use in criminal investigations could be construed as ordinary business in a federal prison, which is governed by elaborate regulations regarding the monitoring and notification procedures and uses. The concern becomes greater in a state prison system with much less regulated methods for determining who should be recorded and for what purpose, especially since Shawangunk inmates receive less notification of these activities than do federal prisoners. Therefore, I do not find that Lieutenant Tasker was pursuing the prison's ordinary course of business in taping Green's calls as part of a criminal investigation which was clearly separate from the functions of the facility.
III. Fourth Amendment
Defendants argue that use of the tapes violates the Fourth Amendment rights of the noninmate defendants receiving the telephone calls. While the court may find that implied consent to tape-recording is enough for the inmates, it is inadequate for the party who has not consented. Defendants contend that permitting the use of implied consent in this context destroys the rationale that such "seizure" is authorized by the Fourth Amendment, provided one party is willing to cooperate with the government. Rathbun v. U.S., 355 U.S. 107, 2 L. Ed. 2d 134, 78 S. Ct. 161 (1957); U.S. v. White, 401 U.S. 745, 28 L. Ed. 2d 453, 91 S. Ct. 1122 (1971).
Defendant Derwin Rodgers filed separate briefs (Items 230 and 325) asserting that the prison tapes should be suppressed on Fourth Amendment grounds for the same reason that the ordinary course of business exception to Title III was not met. Rodgers relies on U.S. v. Cohen, 796 F.2d 20 (2d Cir. 1986), in which evidence obtained during a cell search requested by a United States Attorney was suppressed because it was not occasioned by the legitimate needs of institutional security.
I affirm the Magistrate Judge's ruling that the noninmate defendants' Fourth Amendment rights were not invaded by a warrantless interception of telephone calls made by inmates. Tab 16 at 23-24. "Contacts between inmates and noninmates may justify otherwise impermissible intrusions into the noninmates's privacy . . . Given the institution's strong interest in preserving security, we conclude that the interception of calls from inmate to noninmates does not violate the privacy rights of the noninmates." Willoughby, 860 F.2d at 21-22. Further, as the Magistrate Judge stated, the Amen court held that "prison inmates have no reasonable expectation of privacy. . . . It is reasonable to monitor prisoners' telephone conversations, particularly where they are told that the conversations are being monitored." 831 F.2d at 379-80. This holding effectively quashes any Fourth Amendment challenge by inmates to monitoring of their telephone communications.
For the reasons enumerated, I affirm Magistrate Judge Heckman's Report and Recommendation of September 16, 1993, denying defendants' joint motion to suppress evidence of the prison tapes based on Donald Green's implied consent to the monitoring and taping of his telephone calls.
JOHN T. CURTIN
United States District Judge
Dated: January 21, 1994