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UNITED STATES v. CLARK

October 9, 1986

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN CLARK, a/k/a AMWAR, a/k/a YAHYA; ECO HERNANDEZ; BRENDA MINOR, a/k/a DEBBIE BAKER, a/k/a SHIRLEY BROWN; CYNTHIA BARMONT, a/k/a CATHY ADKINS, a/k/a LATEEFA; ROBERT PRESTON, a/k/a BALIL; OJETTA MINOR; GIRARD THOMPSON, a/k/a SABIR; JOSE SALDANA; ANGELO WEEDEN, a/k/a MUKMEN; EUGENE HARRIS, a/k/a NATEEM; and NAOMI HARRIS, a/k/a CHRISTINE JOHNSON, Defendants



The opinion of the court was delivered by: RAMBO

 Background

 On April 17, 1986, the above-named defendants were indicted on thirty-five counts relating to the alleged introduction of marijuana into the Lewisburg Federal Penitentiary. Of the eleven defendants, six were inmates of the penitentiary at the time the indictment was filed. During the course of the investigation which preceded the Indictment, telephone conversations between the defendants who were inmates and others who were outside the penitentiary were recorded. The government plans to introduce several of these recordings as evidence in the upcoming trial. Before the court is the motion of all defendants to suppress the audio tapes. The motion has been fully briefed and is ripe for disposition.

 The motion raises the following issues: (1) whether the recording of telephone conversations between inmates and non-inmates violates the provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520 (hereinafter referred to as Title III); (2) whether the recording violated defendants' Fourth Amendment protection; (3) whether use of the tapes as evidence at trial would violate the common law husband-wife privileges; and (4) whether the tapes are of such poor quality that their use as evidence would be more prejudicial than probative. The court will address each of these issues.

 Discussion

 A. Title III

 Title III, at 18 U.S.C. § 2511, generally provides that the interception of "any wire or oral communication" is prohibited. In § 2515, the Act further prohibits the use of illegally intercepted communications as evidence. Several exceptions to these rules are found throughout the Act. The two which are discussed in briefs are the law enforcement exclusion and the consent exclusion.

 The consent exclusion is found at 18 U.S.C. § 2511(2)(c). According to that section, an interception of a communication is not illegal if "one of the parties to the communication has given prior consent to such interception." It is not necessary to decide here whether defendants consented to have their telephone conversations intercepted and recorded, because the issue of Title III violations can be answered in light of the law enforcement exclusion.

 As noted by defendants, an exception from the coverage of Title III is found at 18 U.S.C. § 2510(5)(a)(ii) for "an investigative or law enforcement officer" who is using equipment for the interception of communications "in the ordinary course of his duties." An "investigative or law enforcement officer" is defined as,

 
. . . any officer of the United States or of a State or political subdivision thereof, who is empowered by law to conduct investigations or to make arrests for offenses enumerated in this chapter, and any attorney authorized by law to prosecute or participate in the prosecution of such offenses . . .

 18 U.S.C. § 2510(7).

 Defendants contend that the recordings at issue fail to qualify under the law enforcement exclusion for two reasons. First, defendants argue that prison employees do not qualify as investigative or law enforcement officers under the definition quoted above. *fn1"

 
It is beyond question that as a part of managing and regulating the day-to-day activities of a correctional institution, prison officials must be empowered to investigate potential criminal violations in order to preserve the security and orderly management of the institution; in fact, the Bureau of Prisons' regulations expressly provide specific procedures for investigating suspected criminal activity. 28 C.F.R. § 541.12(b). The Court ...

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