inmates retain ". . . some residuum of Fourth Amendment protection." Id. at 4. Although the First Circuit Court made that ruling, it declined to define the scope of Fourth Amendment protection in a penitentiary, finding that the scope must be determined on a case-by-case basis. Id. at 4. Perhaps one reason why the Chamorro court was reluctant to define the scope of protection was that the United States Supreme Court had not yet decided ". . . whether and to what extent an inmate's privacy interest in his cell is protected by the Fourth Amendment." Id. at 3.
Since Chamarro, the Supreme Court has addressed that issue. In Hudson v. Palmer, 468 U.S. 517, 82 L. Ed. 2d 393, 104 S. Ct. 3194 (1984), the Court held that a prisoner has no legitimate expectation of privacy in his prison cell which warrants Fourth Amendment protection from unreasonable searches and seizures. Id. at 526. The basis for this holding seems to be a recognition by the Supreme Court of the security problems in penitentiaries and the need for prison officials to be able to take whatever steps are necessary to preserve safety in prisons. For instance, the Court noted that prison officials ". . . must be ever alert to attempts to introduce drugs and other contraband into the premises which, we can judicially notice, is one of the most perplexing problems of prisons today . . ." Id. at 527.
While the holding in Hudson may be limited to a prisoner's expectation of privacy in his cell, the reasoning in Hudson can be applied to this case. The recognition by the court of a reasonable expectation of privacy in telephone conversations placed from penitentiary telephones would frustrate the objectives of the Bureau of Prisons, as set forth at 28 C.F.R. §§ 540.100-540.105.
It is clear in those regulations that it is the aim of the Bureau of Prisons to enhance the security of federal prisons through monitoring and recording of telephone conversations. The fact that the inmates are made aware of this policy through the signs posted by the telephones is even more reason not to find a legitimate expectation of privacy.
Defendants have drawn the court's attention to the case of Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967), in which the Supreme Court held that the recording of telephone conversations placed from a public telephone violated the petitioner's Fourth Amendment protection. In reaching that decision, the Court found that "one who occupies [a phone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast into the world." Id. at 352.
The court's finding in the instant case does not conflict with Katz. The expectation of privacy which Katz attributed to the user of a public telephone booth does not carry over to the user of a penitentiary telephone. Therefore, the Katz holding does not compel the court to find that the monitoring and recording of defendants' conversations constituted an unreasonable search and seizure.
C. Husband-Wife Immunity
Defendants argue that the use of the tape recordings of the married defendants' conversations as evidence would violate the husband-wife privilege which is recognized at common law and therefore by F.R.E. 501.
There are two distinct aspects of the husband-wife privilege. The first is that a spouse may not be compelled to testify against the other spouse. This aspect of the privilege may be waived by the testifying spouse, in whose control the privilege rests. The second aspect is that confidential communications between spouses are privileged from disclosure at trial. United States v. Ammar, 714 F.2d 238, 258 (3d Cir. 1983).
As to the first aspect of the privilege, defendants claim that the introduction at trial of the tapes of conversation between spouses is the same as compelling one spouse to testify against another. The only case to which defendants refer in support of that proposition is Hunter v. Hunter, 169 Pa.Super. 498, 83 A.2d 401 (1951). In Hunter, the Pennsylvania Superior Court held that surreptitiously recorded conversations between a husband and his wife would not be admitted as evidence in a divorce proceeding because the conversations which were recorded were confidential. The Superior Court did not find that admission of the tapes would be the same as compelling one spouse to testify against the other. Rather, the basis of the holding was the second aspect of the husband-wife privilege, which forbids disclosure of confidential communications. Thus, Hunter is inapposite here. See, United States v. Geller, 560 F. Supp. 1309, 1326 (E.D.Pa. 1983), aff'd, 745 F.2d 49 (3d Cir. 1984), cert. denied, 469 U.S. 1109, 105 S. Ct. 786, 83 L. Ed. 2d 780 (1985).
Defendants do not cite any other cases in support of their position. Additionally, it is the opinion of this court that the tape recordings at issue are evidentiary, rather than testimonial, in nature. Therefore, the court finds that their introduction will not constitute the compulsion of a witness to testify against his or her spouse.
As to the second aspect of the husband-wife privilege, the court notes that the conversations which the government plans to introduce as evidence allegedly relate to the conspiracy with which all defendants are charged. The Third Circuit Court has specifically ruled that ". . . communications between spouses pertaining to ongoing or future criminal activity, are not protected against disclosure by the privilege for confidential marital communications." United States v. Ammar, 714 F.2d 238, 258 (3d Cir. 1983), cert. denied, 464 U.S. 936, 104 S. Ct. 344, 78 L. Ed. 2d 311 (1983). Compelled by this clear ruling, the court must take a position contrary to the one taken in United States v. Geller, supra.
In Geller, the District Court for the Eastern District of Pennsylvania ordered that tapes of conversations between two defendants who were married would be suppressed in a criminal trial involving the couple. The court's order was based on a finding that the Third Circuit Court, in the case of Appeal of Malfitano, 633 F.2d 276 (3d Cir. 1980), had ruled that conspiratorial utterings between spouses are privileged. Geller, 560 F. Supp. at 1327. While Malfitano does say that a spouse-conspirator cannot be compelled to testify against her husband, Malfitano, 633 F.2d at 280, this court is unable to find any language in that case which indicates that conversations between spouses are privileged from disclosure despite their involvement in a conspiracy. In other words, Malfitano does not address the second aspect of the husband-wife privilege. See, Malfitano, 633 F.2d at 277, n. 2; and Ammar, 714 F.2d at 258. Thus, Geller is not persuasive, and the court finds that under the holding in Ammar the confidential communications privilege does not warrant the suppression of the tape recordings of conversations between the four married defendants.
Defendants argue that because the tape recordings are at times "inaudible, unintelligible and incomplete", their introduction as evidence would create undue prejudice. In order to consider this argument of defendants more carefully, the court listened to one of the tapes.
It is the opinion of the court that the quality of the tape recordings are not so poor as to warrant their suppression. As to the possibility of incompleteness or errors in the transcripts which accompany the tapes, the court will instruct the jury that the transcripts have been provided only to assist the aural comprehension of the tapes and that where the transcripts differ from what the jury hears, the jurors are to be "governed" by what they hear. United States v. Ruppel, 666 F.2d 261, 272 (5th Cir. 1982), cert. denied, 458 U.S. 1107, 73 L. Ed. 2d 1369, 102 S. Ct. 3487 (1982), reh'g denied, 458 U.S. 1132, 73 L. Ed. 2d 1402, 103 S. Ct. 17 (1982).
On the basis of the preceding discussion, the defendants' Motion to Suppress the Audio Tapes of their telephone conversations has been denied.
Sylvia H. Rambo, United States District Judge
Dated: October 9, 1986