Criminal procedure - government may not introduce evidence derived from illegal private wiretaps despite its "clean hands" - United States v. Crabtree.

AuthorHunter, Jonathan

Criminal Procedure--Government May Not Introduce Evidence Derived from Illegal Private Wiretaps Despite Its "Clean Hands"--United States v. Crabtree, 565 F.3d 887 (4th Cir. 2009)

Congress strictly regulates telephone surveillance--or "wiretapping"--through the comprehensive Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III). (1) One of Title III's primary enforcement mechanisms is [section] 2515, an exclusionary rule that calls for suppression of any evidence derived from unauthorized wiretaps. (2) In United States v. Crabtree (3) the United States Court of Appeals for the Fourth Circuit considered whether [section] 2515 prohibits the government from introducing evidence derived from illegal private wiretaps in a criminal proceeding. (4) The court held that [section] 2515 requires suppression of all illegally intercepted communications, even where the government was not the interceptor but rather a mere passive recipient of privately intercepted communications. (5)

Daniel Crabtree made incriminating phone calls from the telephone of his live-in girlfriend, Betty Starnes, while on supervised release from prison.6 Unbeknownst to Crabtree, Starnes recorded these calls and notified Crabtree's probation officer that she had tape recordings of Crabtree threatening to burn her house and truck. (7) Based in part on these recordings, the probation officer initiated proceedings to revoke Crabtree's supervised release, alleging that Crabtree had violated the terms of his release. (8)

At the revocation hearing, Crabtree moved to exclude Starnes's tapes from evidence. (9) Crabtree based his motion on [section] 2515 of Title III, arguing that because Starnes recorded his calls in violation of Title III, [section] 2515 required the court to suppress the illegally intercepted conversations. (10) The district court agreed that Starnes had violated Title III, but nevertheless allowed the government to introduce the tapes it had innocently received, finding an implied "clean hands" exception to [section] 2515. (11) The district court went on to find that Crabtree had committed all of the alleged violations, and sentenced him to twenty-four months imprisonment plus an additional three-year supervised release. (12) On appeal, the Fourth Circuit--holding that [section] 2515 contains no clean hands exception--vacated the district court's judgment and remanded for further proceedings without consideration of the illegally intercepted communications. (13)

Since the advent of wiretapping over a century ago, courts and lawmakers have sought to strike the appropriate balance between law enforcement interests and privacy interests. (14) Title III--enacted for the dual purpose of protecting the privacy of communications and setting uniform standards for the authorization of wiretapping--represents Congress's most recent effort to achieve that balance. (15) Congress designed Title III to authorize wiretapping in the fight against organized crime within the strictures of the Fourth Amendment's bar on unreasonable searches and seizures. (16) In the interests of privacy, Title III broadly prohibits interception of telephone conversations or intentional use or disclosure of the contents of such conversations. (17) Consistent with its dual purpose, however, the protections of Title III are not absolute. (18) For example, Title III provides an exception for law enforcement officials investigating specified serious crimes, but only after application to a judge and a showing of probable cause. (19)

Section 2515 is a statutory exclusionary rule central to the operation of Title III. (20) Section 2515 provides that the contents of communications intercepted in violation of Title III, along with any evidence derived therefrom, are inadmissible in any proceeding. (21) Congress modeled [section] 2515 after the judicially created Fourth Amendment exclusionary rule. (22) Exclusion of illegally intercepted communications under [section] 2515 serves to protect privacy and preserve the integrity of the courts. (23) Although [section] 2515 appears to be an absolute bar to the admissibility of illegally intercepted communications, courts have recognized limited exceptions to the exclusionary rule for purposes such as impeaching defendants. (24)

Remedy Would Change Computer Crime Law, 54 Hastings L.J. 805, 815 (2003) (noting difficulty of obtaining warrant to access contents of communications under Title III); see also Sapp, supra, at 186 (calling Title III warrant requirements more restrictive than Fourth Amendment counterparts).

The circuit courts have generally rejected the argument that [section] 2515 contains a clean hands exception for evidence intercepted illegally but without government involvement. (25) In United States v. Murdock, (26) however, the Sixth Circuit recognized such an exception, reasoning that suppression would have no deterrent effect on the government where the government was merely a passive recipient of illegally intercepted evidence. (27) The Sixth Circuit also drew support from the fact that the Fourth Amendment exclusionary rule does not apply to evidence uncovered by private searches, even if those searches were unreasonable. (28)

In United States v. Crabtree, the Fourth Circuit held that the plain language of [section] 2515 requires suppression of illegally intercepted communications, even if the government was not involved in their interception. (29) The court saw no "gaps or shadows" in the plain and unambiguous language of the statute in which to find a clean hands exception. (30) Because a literal interpretation of [section] 2515 would not produce an outcome contrary to Congress's intent or lead to absurd results, the court saw no reason to consult Title III's legislative history in its analysis. (31) The court reasoned that reading [section] 2515 without the clean hands exception comported with Title III's protection of privacy, even if it precluded a criminal conviction. (32)

Looking beyond the plain language of [section] 2515, the court saw no suggestion that Congress intended a clean hands exception. (33) Despite reference to the Fourth Amendment in the legislative history of [section] 2515, the court noted that Title III explicitly applies to private parties as well as governments, and thus refused to limit its scope to that of the Fourth Amendment exclusionary rule. (34) The court rejected the Sixth Circuit's argument that [section] 2515 serves only to deter the government from executing illegal wiretaps. (35) The court reasoned that while suppression of third-party recordings would not deter the government, it nevertheless would deter vindictive private parties seeking to turn over incriminating evidence to the government. (36) The court went on to reject the government's argument that the Fourth Circuit's prior recognition of an impeachment exception to [section] 2515 required it to recognize a clean hands exception, noting that otherwise inadmissible material is often admissible for impeachment purposes. (37) The court thus concluded that the district court should have excluded all evidence flowing from Starnes's illegal wiretap in accordance with the plain language of [section] 2515. (38)

In United States v. Crabtree, the Fourth Circuit properly interpreted [section] 2515 according to its plain language, disallowing government use of illegally obtained communications as criminal evidence. (39) This literal interpretation of [section] 2515 furthers Congress's intent to protect privacy and set uniform legal standards for wiretapping, and prevents circumvention of the strict wiretapping authorization procedure Congress crafted for law enforcement officials. (40) The Fourth Circuit appropriately refused to seize upon isolated and vague references to the Fourth Amendment in the legislative history of Title III to contradict the unambiguous language of [section] 2515. (41) Title III expressly regulates both private and governmental conduct, thus providing decidedly broader protections than those of the Fourth Amendment, which regulates governmental conduct only. (42)

The court adequately countered the Sixth...

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