Appellant United States appeals from the November 23, 2005, and February 1, 2006, decisions of the United States District Court for the Western District of New York (Siragusa, J.) granting the Defendants-Appellees' motion to suppress any and all evidence derived from a March 19, 2002, New York State digital pager intercept warrant. We hold that the failure to record electronically and to seal the recordings of electronic pager communications in accordance with 18 U.S.C. § 2518(8)(a) does not amount to a constitutional violation, and the limitations imposed by 18 U.S.C. § 2518(10)(c) preclude the suppression of the evidence derived from the pager interceptions; instead, pursuant to 18 U.S.C. § 2517(3), only the evidence of the intercepted electronic communications is excluded from disclosure at trial or other proceedings.
The opinion of the court was delivered by: Hall, Circuit Judge
BEFORE: CABRANES, KATZMANN, HALL, Circuit Judges.
In this appeal we consider whether state law enforcement investigators' failure properly to record and seal digital pager electronic interceptions, as prescribed by a state eavesdropping warrant and federal statute, should result in suppression of the pager interceptions and the evidence derived from them.*fn1 This case comes to us on the government's interlocutory appeal of the November 23, 2005, and February 1, 2006, decisions of the United States District Court for the Western District of New York (Charles J. Siragusa, Judge) which granted DefendantsAppellees' motions to suppress all evidence derived from the New York State pager eavesdropping warrant. In granting the motion to suppress, the district court found that the investigators' failure to record electronically and to seal the pager interceptions rose to the level of a constitutional violation. Although we agree with the district court that federal rather than state law governs, we disagree with the court's disposition of the motion to suppress. The failure properly to record and seal these electronic interceptions is not a constitutional violation that merits suppression under 18 U.S.C. § 2518(10)(c). Rather, the appropriate remedy for a violation of this type is found in the exclusionary remedy contained in 18 U.S.C. § 2518(8)(a).
On March 19, 2002, state police investigators tracking a suspected cocaine distribution conspiracy in Rochester, New York, obtained a thirty-day eavesdropping warrant from Monroe County Court Judge Patricia Marks. The warrant authorized the interception of a digital pager belonging to Joseph Amanuel and used by Donald R. Minni. The terms of the warrant required that "the interceptions will be captured on a computer maintained by the [N]ew York State Police, and the computer system shall make a record of every digital message intercepted from the target pager and all such records will be kept and stored by computer." The warrant further ordered that "any and all electronic communications or fragments thereof which are intercepted and monitored . . . shall be fully and completely listed and recorded in a manner which will protect the records from editing and alteration." The warrant also authorized the monitoring of communications via a duplicate or "clone" paging device, which would display the same information as that shown on the device being monitored. On April 18, 2002, Monroe County Court Judge Richard A. Keenan continued the Order of Authorization for an additional thirty days.
Contrary to the specific electronic recording requirements stated in the eavesdropping warrant, investigators did not record electronically intercepted pager communications on a computer. Instead, an investigator visually monitored the clone pager and entered the intercepted information in a handwritten log. The State submitted eighty-four pages of handwritten logs to Judge Keenan for sealing when the pager interception warrant continuation order expired.
The State then made an ex parte application for a wiretap warrant to monitor and record three different cellular phones used by Minni and Amanuel. In support of this request, the State presented Judge Keenan with information obtained during its ongoing investigation, including information obtained from visually monitoring the clone pager. Judge Keenan granted the wiretap application on May 30, 2002, and renewed it on June 7, 2002. In turn, these wiretaps provided information used to support the issuance of search warrants whose execution ultimately resulted in the seizure of incriminating physical evidence.
On November 27, 2002, after the conclusion of the investigation, a Monroe County grand jury returned an indictment charging Rodrique Amanuel, Minni, Scott Demeyer, and others with various drug-related offenses. During the state court proceedings, the defendants each moved to suppress the evidence derived from the improperly recorded pager interceptions. In response, the State explained that an electronic pager recording device had not been available in the Monroe County area at the time of the investigation. The State conceded, however, that such a device had been available in Albany, New York. It offered no explanation as to why the investigators had not used the Albany pager recorder.
New York State Supreme Court Justice Kenneth R. Fisher granted the defendants' motions to suppress evidence from the pager interceptions because the visual monitoring and handwritten logs of the pager interception warrant violated the recording requirements of § 700.35(3) of New York Criminal Procedure Law, which requires that the interceptions "if possible, be recorded on tape or wire or other comparable device." N.Y. Crim. Proc. Law § 700.35(3) (McKinney 1995).*fn2 Justice Fisher then dismissed the indictments against all of the defendants, because all of the evidence in the State's case derived either directly or indirectly from the pager interception warrant.
Following dismissal of the state indictment, federal prosecutors assumed control of the case. On May 19, 2005, a federal grand jury returned an indictment charging Amanuel, Minni, and Demeyer with conspiracy to possess with intent to distribute more than five hundred (500) grams of a substance containing cocaine, in violation of 21 U.S.C. §§ 841 and 846. In the district court, the defendants moved, as they had previously done in state court, to suppress all evidence derived from the March 19, 2002 pager interception warrant.
In November 2005, the district court granted the defendants' motion to suppress both the interceptions and all evidence derived therefrom. United States v. Amanuel, 418 F. Supp. 2d 244 (W.D.N.Y. 2005). In granting the defendants' motion, the district court held as an initial matter that in federal court, the use of state wiretap warrants is controlled by federal rather than state law. In applying federal law, the district court ruled that handwritten logs cannot qualify as "sealed" in compliance with 18 U.S.C. § 2518(8)(a). Id. at 250-51. The district court further held that the "wholesale disregard of the recording requirement" amounted to "a violation of constitutional magnitude" under 18 U.S.C. § 2518(10)(c) and, therefore, required suppression of all evidence derived from the March 19, 2002 warrant. Id. at 249, 252.
The court then considered the Government's motion for reconsideration based on the good faith exception. United States v. Amanuel, No. 05-CR-6075, 2006 WL 266560 (W.D.N.Y. Feb. 1, 2006); see generally Illinois v. Krull, 480 U.S. 340 (1987) (holding that the exclusionary rule did not apply to a good-faith violation of the Fourth Amendment by police officers); United States v. Leon, 468 U.S. 897 (1984) (same). It held that the exception did not apply because the Government's "willful . . . improper ...