Appellate Law

CA1: Justice O?Conner writes opinion on wiretap act

By S. COTUS

US v. Conley, No. 07-2587 (6/26/08).  This opinion is written by Justice O?Conner (retired).  It begins, ?Appellant claims the introduction into evidence of phone calls between him and Kenneth Durgin, an inmate in a correctional facility, violated the Federal Wiretap Act, 18 U.S.C. § 2510 et seq.?  It fails because she finds that the defendant consented, because ?The inmate in that case signed a form indicating that he understood that any use of the telephone, except in calling an attorney, would be subject to monitoring. Stickers posted near telephones reminded inmates their calls were monitored.?  Justice O?Conner goes through the various ways he consented.

A more interesting issue is whether the calls should be suppressed because ?Only those prisoner telephone calls suspected to be related to the investigation may be monitored.?  This comes from prison policy and District Court caselaw.  There Jusice O?Conner struggles to explain why this ?scope? issue isn?t an issue.  Eventually she concludes that ?preventing crime? is a good enough reason to conclude that the monitoring was a good enough reason for a prison administrator to agree to such a search and we need to defer to prison administrators. 

Another interesting issue is whether a corrections officer had the authority to disclose the monitoring to the feds.  He argues that since no court authorized this wiretapping, there could not be sharing of the information.  She says that 18 U.S.C. § 2517 allows disclosure between cops if the information is obtained ?by any means allowed in this chapter? and that chapter includes stuff taps obtained by consent.

Full post as published by Appellate Law and Practice on June 30, 2008 (boomark / email).