The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This matter is now before the Court on the government's motion that the Court reconsider its Decision and Order (Docket #39) entered on November 23, 2005, in which the Court granted each defendant's application to suppress any and all evidence derived from the March 19, 2002 state eavesdropping warrant. Specifically, the government maintains that, since the Court did not initially consider its "good faith" argument, reconsideration is appropriate.
The standard for deciding a motion to reconsider in the civil context is relevant for deciding a motion to reconsider in a criminal case. See United States v. D'Armond, 80 F. Supp. 2d 1157, 1170 (D.Kan.1999). "'The standard for granting [a motion to reconsider] is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked--matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.'" Latouche v. North Country Union High School Dist., 131 F. Supp. 2d 568, 569 (D.Vt.2001) (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir.1995)).
United States v. Fell, 372 F. Supp .2d 773, 779 (D.Vt. 2005). In this case, the government did raise a good faith argument pursuant to United States v. Leon, 468 U.S. 897 (1984) which the Court did not address in its November 23, 2005 Decision and Order. Therefore, the Court will grant the government's application and reconsider whether suppression should be denied based upon the Leon good faith exception.
The government maintains that:
Even if the affidavit in support of the wiretap warrant for defendant's telephones improperly relied on the clone pager information, the evidence obtained from the telephone wiretaps should still not be suppressed because law enforcement officers relied in good faith on the telephone wiretaps. Under United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 83 L.Ed. 2d 677 (1984), evidence seized pursuant to a warrant which is later found not to be insufficient [sic] or otherwise defective will not be suppressed if the agents enforcing the warrant relied in good faith on the warrant. (Government's Motion for Reconsideration of Order Suppressing Wiretap Evidence, December 8, 2005 at 3.) In a court appearance on December 15, 2005, the government expanded on its written argument and offered that, there were two orders authorizing pager intercepts. Judge Marks signed the first one, Judge Keenan signed the continuing order. Judge Keenan's continuation order included the same language about having to record. On May 17th Investigator Jackson goes to seal 84 pages of the logs and seals them in front of Judge Keenan, and that's in the book that I gave you. Judge Keenan signed the order authorizing the sealing, and in the order, the order specifically states he acknowledged that Investigator Lawrence Jackson, "produced to this Court 84 pages of written entries of paged numeric messages sealed constituting the full and complete contents of each and every numeric message intercepted." It's in the order that Judge Keenan signed. It's also in the minutes of the sealing, that's in there as well, that were prepared at the time of the sealing. After that happened on May 17th, 2002, two weeks later, on May 30th, when the investigators go and apply for the wiretap warrants, the Judge to whom they applied was Judge Keenan.
So did they have a conversation wherein Investigator Jackson told Judge Keenan, "Judge Keenan, I want you to know that we didn't record it in the way you worded it in the order?" No, that didn't happen.
But Judge Keenan had notice; when he signed the wiretap authorization orders on May 30th, he knew that the clone pager information had been recorded by paper log because he was the Judge before whom that was sealed. And moreover, Judge Keenan, because he had signed the continuation order, which order contained the language requiring the officers to record via computer, knew that the way the pager information was recorded was inconsistent with what he had ordered in his continuation order. (Transcript of December 15, 2005 Court Proceeding, at 7-8.) The government then summarized its position as follows:
Now, I guess my point is that, yes, they didn't comply with the terms of the order, and I am not going to stand here and tell you they had valid reasons; it was in writing, they did not comply. But when they applied for that wiretap authorization order, at that point they've got the same judge who signed the continuation order, who signed the sealing order, who knew that the clone pagers had been recorded by paper and not by computer. At that time, the question is when they got that wiretap authorization order did they know that the wiretap was illegal, was invalid, should not have been issued, should have been suppressed; and I submit to the Court, given the facts and in spite of that in this case, they didn't know that because Judge Keenan, the same judge as on the prior warrant signed, and moreover never raises questions about the officer's good faith at the relevant time. (Transcript of December 15, 2005 Court Proceeding, at 20.) Essentially the government is arguing that since, when Judge Keenan signed the wiretap authorizations, he knew or should have known that the ...