The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER
Pending now before the Court is DEFENDANT'S MOTION TO SUPPRESS TAPE RECORDED TELEPHONE CONVERSATIONS FROM THE ALLEGHENY COUNTY JAIL AND THE CAMBRIA COUNTY PRISON (Doc. No. 90), the government's brief in opposition to the motion (filed at Doc. No. 158), Defendant's reply to the government's response (Doc. No. 184), and the Government's sur-response to Defendant's reply (Doc. No. 190). On May 25, 2010, an evidentiary hearing was ordered to consider the motion, and the hearing was conducted on June 7, 2010. All parties were represented by counsel who presented and argued the issues skillfully and effectively. At the conclusion of the hearing, the Court granted Defendant's request to file a supplemental brief in support of her motion. Defendant filed her supplemental brief on June 23, 2010 (Doc. No. 213), to which the government responded on June 28, 2010 (Doc. No. 217). Also pending before the Court is DEFENDANT'S MOTION FOR IDENTIFICATION OF JAIL CALLS (Doc. No. 104), and the government's response thereto (Doc. No. 163). The motions are ripe for disposition.
Defendant moves to suppress the statements which she made in recorded telephone conversations while incarcerated because, as she avers, the statements were obtained in violation of her rights under the Due Process Clause of the Fourteenth Amendment, her rights against self-incrimination and to testify on her own behalf under the Fifth Amendment, her right to counsel under the Sixth Amendment, and her rights to be free from unlawful searches and seizures under the Fourth Amendment. Based upon the testimony and evidence presented during the suppression hearing and applicable law, the Court issues the following Findings of Fact and Conclusions of Law pursuant to Federal Rule of Criminal Procedure 12(d). For the reasons that follow, the Court will deny Defendant's motions.
This criminal case arose out of the tragic shooting of FBI Special Agent Samuel Hicks on November 19, 2008. On that date, Hicks and other law enforcement officers were attempting to execute an arrest warrant for Robert Ralph Korbe at the Korbe residence, 111 Woods Run Road, Indiana Township, Pennsylvania, which he shared with his wife, Christina Korbe ("Defendant") and their two young children. The Court makes the following findings of fact:
1. On November 19, 2008, Defendant was arrested and incarcerated at the Allegheny County Jail ("ACJ"). On or about December 20, 2008, Defendant was transferred to the Cambria County Prison ("CCP") in Ebensburg, Pennsylvania.
2. Captain Thomas Leicht is employed by the Allegheny Count Bureau of Corrections and serves as the Director of Internal Affairs at the ACJ. He testified about the operation of the inmate telephone system at the jail. Inter alia, Captain Leicht maintains the ACJ's internal monitoring and recording system and serves as a liaison to outside agencies which may seek tapes of inmates' outgoing calls. His uncontradicted testimony establishes the following facts.
3. The ACJ provides telephones for the use of inmates. The telephones are located in the common areas of each housing pod within the jail.*fn1
4. There are no incoming calls. All calls are outgoing collect calls and all calls are recorded unless an inmate affirmatively demonstrates that the subject matter of the call will be confidential, e.g., a conversation with an attorney.
5. Recordings of the calls are maintained in a digital format on a computer hard drive for approximately one year, at which time the calls are recorded over. Once this occurs, the calls are lost unless prior to being recorded over, the calls are downloaded and preserved on separate storage media such as a computer compact disk.
6. Inmates are provided with considerable notice that their outgoing calls will be recorded.
7. The ACJ has an orientation program for newly arrived residents, typically provided within the first forty-eight (48) hours of an inmate's arrival into the jail. The orientation consists of a video presentation in which the procedures within the jail are explained, including the inmate handbook, what is expected of inmates, and the use of the inmate telephone system.
8. The Allegheny County Inmate Handbook, which each inmate is specifically advised to read and understand, is prominently displayed in each housing pod of the jail, and it also explains the use of the inmate telephone system. The handbook, updated February 2001, was admitted into evidence as Government Exhibit 1 ("GE 1").
9. Chapter 5 of the handbook is entitled "Outside Communication" and explains the following rules for the use of telephones by inmates:
a. A bank of telephones is provided for the use of inmates in the Day Room area (a common area within each housing unit);
b. Only collect calls may be made from these phones; and, c. The inmate phone system "automatically monitors all outgoing calls from the housing units."
10. The ACJ is an institution accredited through American Correctional Association ("ACA"). On January 15, 2008, the ACJ issued Policy # 62, "Inmate Phone System/Attorney Calls/Intake Phone Card", consistent with ACA standards.
11. Policy # 62 sets forth, inter alia, the following procedural guidelines:
A. "All inmate phone calls must be collect calls";
B. "All inmate phone calls will be recorded, pursuant to the Wiretapping and Electronic Surveillance Act, 18 Pa.C. 5.5701"*fn2 ;
C. Attorney phone calls will not be recorded when procedural guidelines are followed."
A copy of Policy # 62 was admitted into evidence as GE 3. Copies of Policy # 62 are available in each housing unit for review by inmates and staff.
12. Policy # 62 also notes that "Inmate telephone calls are a privilege, which may be curtailed or rescinded for administrative or disciplinary reasons".
13. Placards are conspicuously posted upon each telephone which state, "ALL CALLS ARE RECORDED."
14. As explained in both the Inmate Handbook and Policy # 62, the only exception to the policy of monitoring and recording of inmate phone calls are those calls between inmates and their attorneys.
15. To assure that the attorney/client privilege is not violated, the inmate phone system recognizes whether the inmate has dialed an attorney's office phone number, and if so, the phone call is neither monitored nor recorded.*fn3
16. Additionally, a message which advises that the call will be recorded is heard prior to, and at periodic intervals throughout, each outgoing call. The recipient of the collect call from the jail must hear the message before accepting the call.
17. Defendant was aware that the non-attorney phone calls she made from the ACJ were being monitored by the FBI.
18. During the evidentiary hearing, the United States introduced a transcript at GE 11 of a phone call made by Defendant from the ACJ on November 23, 2008, in which she explicitly stated, "There's somebody - they're listening to every call I make. ... The, the FBI. The FBI's listening to every [obscenity] word I say."
19. The telephone system enables the jail's staff to contemporaneously listen to inmates' telephone conversations. However, this capability is not utilized by the Internal Affairs staff as a matter of course, in light of the tremendous volume of telephone calls that are made daily.
20. Circumstances in which calls may be monitored by staff include those situations involving calls being made from inmates who have been identified by an outside law enforcement agency as potentially involved in criminal behavior, and also those situations involving high profile inmates charged with homicide.
21. In general, the safety and security of the ACJ are the purposes for recording inmates' telephone calls. Examples of safety and security issues considered of primary importance to the Internal Affairs Office include such topics as escape, violence toward other inmates, violence toward staff, improper interaction between staff and inmates, the introduction and presence of contraband, and improper interaction between inmates (such as gang-related activities).
22. The concerns regarding the safety and security of the ACJ are more attenuated in those situations involving inmates suspected of engaging in criminal activity while incarcerated and ...