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January 21, 1994



The opinion of the court was delivered by: JOHN T. CURTIN

On January 11, 1993, defendants Donald Green, et al., moved to suppress all evidence of telephone conversations initiated by Green and others *fn1" while inmates of Shawangunk Correctional Facility, as well as any evidence gathered as a result of information gleaned from those conversations. Defendants claim that this evidence was obtained in violation of the Fourth Amendment of the United States Constitution, *fn2" as well as the New York State Constitution. They also claim that both Lieutenant Tasker--who made the tape-recordings and forwarded them to the Buffalo Police Department and the F.B.I.--and Superintendent Mann--who at least nominally oversaw Tasker's operation--violated 18 U.S.C. §§ 2510-2521 ("Title III") by respectively conducting and approving wiretapping surveillance without a court order.

 The government responded that the tape-recording of inmate conversations without a warrant was proper under two statutory exceptions to the Title III requirement. First, the inmates were informed that their calls would be monitored, so their subsequent use of the telephone system implied consent under § 2511(2)(c). Second, Lieutenant Tasker made the tapes as part of the prison's ordinary course of business pursuant to § 2510(5)(a)(ii). The government further argues that because prisoners do not have a reasonable expectation of privacy, electronic monitoring and tape-recording of their telephone conversations do not constitute violations of either the United States or the New York State Constitution.

 The Magistrate Judge held a hearing to determine the extent of the notice given to inmates at the facility regarding telephone monitoring and taping. The government offered into evidence an Inmate Orientation Handbook which explained the telephone system and stated that all conversations would be monitored. However, the manual did not indicate that the calls would be tape-recorded, nor was any warning given that use of the phones constituted consent to the monitoring. *fn3" The government also produced a signed acknowledgment of receipt of the handbook by Green and a log entry showing that Green attended an orientation session in which the phone system was reviewed. The size, appearance, position, and contents of the notices placed near the telephones which alerted callers to the prison's monitoring capabilities were documented. Finally, the government introduced a transcript of portions of several tapes (Govt. Ex. 1) which demonstrated that Green was aware of the monitoring and warned the parties on the line to be careful about what they said.

 The defendants countered the government's assertion that notice was adequate to constitute implied consent with testimony from other inmates. These witnesses admitted that they knew prison officials could listen to conversations but stated that they were told the calls would not be taped. The defendants also presented some evidence to indicate that the placement of the posted notices may not have met the New York State prison requirements, that Green's orientation session had occurred after the taping of his conversations began, and that the pertinent information on monitoring was never covered during orientation. Appendix, Tab 18 at 7. The defendants also objected to introduction of the excerpted transcript.

 On September 16, 1993, the Magistrate Judge issued a Report and Recommendation that defendants' suppression motion be denied in its entirety. The Magistrate Judge found that the notices placed near the telephones, combined with the information given in the orientation manual and session, were sufficient to constitute implied consent to the monitoring and taping of phone conversations. Finding implied consent, the Magistrate Judge ruled that tape-recordings could properly be used as evidence absent a warrant because the procedure satisfied the consent exception to Title III, 18 U.S.C. § 2511(2)(c). The Magistrate Judge also ruled that Lieutenant Tasker taped Green's telephone calls as part of the facility's ordinary course of business. The defendants now appeal this recommendation to this court, which must make a de novo review of both the law and the facts at issue.


 I. Federal v. State Law

 The New York State Constitution, Art. 1, § 12 protects a right to privacy of telephone conversations. Defendants argue that this court is bound by the State's more stringent standard which does not permit use of evidence obtained through tape- recordings of phone conversations when there is only implied consent by one party. See United States v. Sotomayor, 592 F.2d 1219 (2d Cir. 1979).

 The Magistrate Judge concluded that even if there were a conflict between state and federal law, the Title III provisions which specifically permit use of consensual recordings control over state eavesdropping regulations. U.S. v. McNulty, 729 F.2d 1243 (10th Cir. 1984). Tab 16 at 11. I agree that federal law controls whether the tape-recorded interception of telephone conversations at a New York state prison can be used as evidence in federal court.

 II. Title III

 18 U.S.C. §§ 2510-2521 ("Title III") generally prohibits the intentional interception of telephone conversations in the absence of a court order. This prohibition extends to prison communications. U.S. v. Amen, 831 F.2d 373 (2d Cir. 1987), cert. denied, 485 U.S. 1021 (1988). The government relies on two ...

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