assertion, unopposed by the Government, that he had a reasonable expectation of privacy in the contents of his pagers' memories. United States v. Chan, 830 F. Supp. 531, 535 (N.D. Cal. 1993); United States v. Blas, 1990 U.S. Dist. LEXIS 19961, 1990 WL 265179, No. 90-CR-162, at *21 (E.D. Wis. 1990).
1. Fourth Amendment
a. Pager # 1
As stated above, the seizure of Pager # 1 resulted from a search incident to Reyes' lawful arrest. Tr. at 12, 17. Under Chimel v. California, 395 U.S. 752, 763, 23 L. Ed. 2d 685, 89 S. Ct. 2034 (1969), when making a lawful arrest, police may conduct a warrantless search of the area within the arrestee's immediate control. When searching a container that is seized incident to arrest, "the general requirement for a warrant prior to the search of a container does not apply." Chan, 830 F. Supp. at 536 (citing New York v. Belton, 453 U.S. 454, 460-61, 69 L. Ed. 2d 768, 101 S. Ct. 2860 (1981)). However, in some instances, law enforcement agents may require a separate warrant to search a container seized incident to a lawful arrest. United States v. Chadwick, 433 U.S. 1, 12-13, 53 L. Ed. 2d 538, 97 S. Ct. 2476 (1977). In Chadwick, the defendant was arrested with a large footlocker by federal narcotics agents at a train station. While some agents took Chadwick to a federal building, other agents followed with the footlocker. From the moment of Chadwick's arrest, "the footlocker remained under the exclusive control of law enforcement officers at all times." Id. at 3-4. Ninety minutes after the arrest, and without a warrant, the agents opened the footlocker. Id. at 4. The Court ruled that under these circumstances, the search of the footlocker could not be considered incident to Chadwick's arrest and that the agents were therefore required to obtain a search warrant. Id. at 15. The Chan court summarized this holding by declaring that the Chadwick Court "adopted a narrow exception to the incident to arrest doctrine, holding that a warrantless search of seized property cannot be justified when the search is remote in time or place from the arrest." Chan, 830 F. Supp. at 535 (citing Chadwick, 433 U.S. at 13-15).
In the instant case, Agent Coad accessed the memory of Pager # 1 soon after another agent seized the pager from the bag attached to Reyes' wheelchair. While no witness testified as to the precise time of Reyes' arrest and the time that Agent Coad accessed the memory of Pager # 1, given the events described as taking place during that period, it is hard to imagine that more than twenty minutes elapsed. The search of Pager # 1's memory was not at all remote in time or place from Reyes' arrest. Therefore the narrow Chadwick exception does not apply, and the search of the memory of Pager # 1 was a valid search incident to Reyes' arrest. The Fourth Amendment does not require the suppression of numbers retrieved from that pager.
b. Pager # 2
As stated above, Pager # 2 was lawfully seized in the course of a vehicle search to which the driver of the car consented. Agent Murphy testified that he asked Salazar if Salazar minded if he [Murphy] looked in the car. Tr. at 118. Agent Coad similarly testified that he and Murphy asked Salazar if they could look inside the car. Both Murphy and Coad testified that Salazar allowed them to search the car. Tr. at 118, 132, 144. Coad found Pager # 2 in the back seat of the car. Tr. at 121, 144. The issue presented here is whether the scope of Salazar's consent to search the car encompassed Coad's warrantless search of the memory of Pager # 2.
The only case to address this issue in the context of pagers or similar devices is United States v. Galante, 1995 U.S. Dist. LEXIS 12376, 1995 WL 507249, 94 CR 633 (S.D.N.Y. Aug. 25, 1995) . In Galante, three agents were led to a car containing a driver and a passenger. One agent asked the occupants to get out of the car, asked the driver if the car was his, and asked if the agents could search the car. The driver said that the car was his and consented to the search. The search yielded a cellular telephone and a pager. One of the agents extracted a telephone number from both the pager and the telephone.
Id. at *2.
In arguing that the consent of the car owner to the search did not include consent to search the contents of the cellular telephone and pager, the defendant in Galante relied on Florida v. Jimeno, 500 U.S. 248, 114 L. Ed. 2d 297, 111 S. Ct. 1801 (1991). That case involved a police officer who stopped a car, told the driver (Jimeno) that he had reason to believe there were narcotics in the car, and asked Jimeno for permission to search the car. Jimeno, 500 U.S. at 249. Jimeno consented, and the officer's search yielded a kilogram of cocaine. Id. at 249-50. The Supreme Court held that where Jimeno granted permission to search without placing "any explicit limitation on the scope of the search," and where the officer had told Jimeno that he would be looking for narcotics, "it was objectively reasonable for the police to conclude that the general consent to search [Jimeno's] car included consent to search containers within that car which might bear drugs." Id. at 251. The Court thus allowed the cocaine to be admitted as evidence against Jimeno.
The defendant in Galante cited Jimeno for the proposition that because there was no evidence that the agents told any of the occupants of the car what they were searching for, general consent to search did not include consent to search the memory of the cellular telephone and pager. The Galante court refused to interpret Jimeno in this manner. Galante, 1995 U.S. Dist. LEXIS 12376, *5, 1995 WL 507249, at *3 Rather, the Galante court looked to United States v. Snow, 44 F.3d 133 (2d Cir. 1995), in which the Second Circuit interpreted Jimeno to mean "that a defendant's lack of knowledge of what the searching officer is searching for does not change the effect of a general consent." Id. (citing Snow, 44 F.3d at 135). The Snow court held that one who consents to a search of a car "should reasonably expect that readily-opened, closed containers discovered inside the car will be opened and examined." Snow, 44 F.3d at 135. The Galante court thus declined to suppress the number obtained from the search of the pager and the cellular telephone, citing the absence of any testimony that those items could not be readily "opened." Galante, 1995 U.S. Dist. LEXIS 12376, *8, *9, 1995 WL 507249, at *3, *3 n.4,.
Here, as in Galante, there is no evidence to suggest that either Coad or Murphy told Salazar what they were looking for. Therefore, according to Snow, Salazar's general consent must be taken to include consent to search the memory of Pager # 2. The Fourth Amendment does not require the suppression of numbers retrieved from that pager.
c. Pager # 3
The third pager was found among the items taken from Reyes' hotel room to the basement storage department of the Miami Hilton Hotel. Tr. at 167, 219. Agents Dugan and Horne testified that they found the pager late Sunday night, that the pager was on when they found it, that Horne kept the pager in her hotel room overnight, that the pager began to sound at 9:30 a.m. Monday, and that they retrieved approximately 97 numeric messages from the pager over the course of four days. Tr. at 168, 219, 277. Reyes testified that he left the third pager turned off. Tr. at 346.
The Government argues that exigent circumstances justified the agents' retrieval of numeric messages from Pager # 3. Gov't Mem. at 21-22 (citing United States v. MacDonald, 916 F.2d 766, 769 (2d Cir. 1990) (en banc), cert. denied, 498 U.S. 1119, 112 L. Ed. 2d 1177, 111 S. Ct. 1071 (1991); United States v. Zabare, 871 F.2d 282, 289-92 (2d Cir.), cert. denied, 493 U.S. 856, 107 L. Ed. 2d 119, 110 S. Ct. 161 (1989)). Specifically, the Government notes that pagers have a limited memory, and that Pager # 3 "would refuse to accept incoming messages if its storage capacity was full." Affirmation of Laurie Horne in Support of Government's Response to Defendants' Pretrial Motions, Aug. 1, 1995, P 6. In pointing out that "confederates and co-conspirators of [drug] traffickers" frequently leave messages on the pagers of suspects following an arrest, the Government implicitly argues that the pager messages could provide critical evidence or investigatory leads. Id.
In response, Reyes emphasizes his testimony that he left Pager # 3 turned off. Tr. at 346. Reyes then argues that because the agents turned on the pager, they themselves created any exigency. Therefore, Reyes argues, the Government cannot claim the benefit of the exception to the warrant requirement for exigent circumstances. The Eighth Circuit has held that
under the exigent circumstances exception, the warrant requirement is suspended "when--in the press of circumstances beyond a police officer's control--lives are threatened, a suspect's escape looms, or evidence is about to be destroyed . . . The police themselves, however, cannot create the exigency."
United States v. Johnson, 12 F.3d 760, 764 (8th Cir. 1993), cert. denied, 129 L. Ed. 2d 821, 114 S. Ct. 2689 (1994) (citing United States v. Duchi, 906 F.2d 1278, 1282 (8th Cir. 1990)). The Second Circuit initially took this view in United States v. Segura, 663 F.2d 411, 415 (2d Cir. 1981), but later circumscribed its position, deciding that "when law enforcement agents act in an entirely lawful manner, they do not impermissibly create exigent circumstances." MacDonald, 916 F.2d at 772. The issue then becomes whether Dugan's act of turning on Pager # 3 (assuming, as Reyes argues, that Dugan did so) was a lawful act. The search warrant for the storage department at the Miami Hilton did not authorize the agents to access the memory of Reyes' pager. See White Aff., Ex. B. Because no exception to the warrant requirement was applicable under these circumstances (for example, the search was not incident to Reyes' arrest, nor was it a consent search), if Dugan turned the pager on, that act was unlawful.
If Dugan was accurate in testifying that Pager # 3 was on when he found it at 10:30 p.m. Sunday, then the following would also be true: despite the fact that the pager had received no messages from 1 p.m. Friday afternoon (when Reyes left his hotel room; Tr. at 343)
until 9:30 a.m. Monday morning (Tr. at 219)--a span of more than 68 hours--starting on Monday morning, the pager received approximately 100 messages over the next four days (Tr. at 170). This is a rate of approximately 25 pages per day.
Such a scenario is highly improbable. I therefore conclude that Dugan's testimony is not credible. Dugan must have turned on the pager on Monday morning, while handling the pager (see Tr. at 278) before he placed it on the coffee table in Horne's room.
Consequently, Dugan himself created the exigency through the unlawful act of turning on Pager # 3. Dugan "created, or at least greatly increased the risk that evidence would be destroyed." Johnson, 12 F.3d at 765. Therefore, the agents cannot claim the benefit of the exigent circumstances exception, and the retrieval of numeric messages from Pager # 3 was unconstitutional.
See MacDonald, 916 F.2d at 772. Reyes' motion to suppress those numbers is granted.
2. Electronic Communications Privacy Act
In addition to the Fourth Amendment challenges to the retrieval of numbers from Reyes' pagers, Reyes also asserts that such retrieval violated the Electronic Communications Privacy Act ("ECPA"). In 1986, the ECPA amended the Omnibus Crime Control and Safe Streets Act of 1968, commonly referred to as the Federal Wiretap Act.
Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457, 460 (5th Cir. 1994). Title I of the ECPA proscribes "'intentionally intercepting . . . any wire, oral, or electronic communication', unless the intercept is authorized by court order." Id. (citing 18 U.S.C. § 2511(1)(a)). By contrast, Title II of the ECPA "generally proscribes unauthorized access to stored wire or electronic communications." Steve Jackson, 36 F.3d at 462. The first question, is whether the conduct of the ATF agents amounted to intercepting electronic communications or to accessing stored electronic communications.
Only one case has addressed precisely this distinction. In Steve Jackson, the Fifth Circuit analyzed the language of the ECPA as follows. In order to understand what it means to intercept an electronic communication, one must first examine the relevant statutory definitions. Interception means "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." 18 U.S.C. § 2510(4). An electronic communication is "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photooptical system . . . but does not include . . . any wire or oral communication . . . ."
18 U.S.C. § 2510(12). Electronic storage means "any temporary, intermediate storage of a wire or electronic communication incidental to the electronic transmission thereof . . . ." 18 U.S.C. § 2510(17).
Therefore, intercepting an electronic communication essentially means acquiring the transfer of data. Taken together, the definitions thus imply a requirement that the acquisition of the data be simultaneous with the original transmission of the data. As the Steve Jackson court stated,
Congress' use of the word "transfer" in the definition of "electronic communication" and its omission in that definition of the phrase "any electronic storage of such communication" (part of the definition of "wire communication") reflects that Congress did not intend for "intercept" to apply to "electronic communications" when those communications are in "electronic storage."