United States Court of Appeals
For the First Circuit
No. 07-1826
UNITED STATES OF AMERICA,
Appellant,
v.
LAWRENCE NOVAK,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Boudin, Circuit Judge,
O'Connor,* Associate Justice (Ret.),
and Selya, Senior Circuit Judge.
Mark T. Quinlivan, Assistant United States Attorney, with
whom Michael J. Sullivan, United States Attorney, was on brief
for appellant.
William J. Cintolo with whom Thomas R. Kiley and Cosgrove
Eisenberg & Kiley were on brief for appellee.
June 30, 2008
*
The Hon. Sandra Day O'Connor, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
O'CONNOR, Associate Justice (Retired). The government in
this case brings an extraordinary appeal: It asks us to reverse a
district court ruling barring from evidence recordings of phone
calls made between an attorney and his client. These calls were
recorded in clear violation of state and federal regulations. But
appellee, the attorney, has not raised a Sixth Amendment challenge,
and for Fourth Amendment purposes, his client consented to the
monitoring of his calls. On these narrow facts, we reverse the
determination of the district court that the calls must be
excluded.
I.
Scott Holyoke was a prisoner held in pretrial detention
at the Barnstable County Jail in Massachusetts. Holyoke was
represented by the Federal Defenders, and planned to plead guilty
to charges of methamphetamine trafficking. He did not, however,
wish to face sentencing with his state convictions on his record,
because under the Sentencing Guidelines, the effect of those
convictions on his criminal history would result in a longer prison
sentence.
For assistance with these state convictions, Holyoke
turned to appellee Lawrence Novak in 2005. Novak was a
Massachusetts attorney. All of Holyoke’s contact with Novak was
conducted through telephone calls made from the County Jail, which
randomly records and monitors inmate calls.
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Inmates are informed of the monitoring in two ways.
First, phones in the jail contain signs which state, “Calls are
subject to monitoring and recording.” Second, an automated message
is played at the beginning of every call that is not screened, which
warns the inmate that the call is subject to monitoring and
recording.
Notwithstanding these warnings, Massachusetts and the
Federal government have both promulgated regulations prohibiting
prison officials from monitoring phone calls between inmates and
their attorneys. 103 Mass. Code Regs. 482.08 (1994) (Massachusetts
regulation); see also 28 C.F.R. §540.102 (prohibiting monitoring
of attorney calls in federal prisons). In order to enforce those
regulations, the County Jail maintains a list of attorneys. Inmates
can request that officials add the phone number of their attorney
to the list so as to exempt all calls made to that number from
monitoring. Although Holyoke did not manually add Novak’s number
to the list, the list is supposed to contain all numbers in the
Massachusetts Lawyers Diary and Manual. That volume included
Lawrence Novak’s number. See Massachusetts Lawyers Diary and Manual
1105 (2004).
In an ideal world, the calls between Novak and Holyoke
would never have been monitored. This case would not be before us,
were it not for two errors that occurred. The first error appears
to be mechanical: Novak’s number was erroneously excluded from the
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list prison officials used to screen calls, and so the calls that
Holyoke made to Novak were recorded.
Because the recorded calls were not monitored in real
time, this error may have gone unnoticed. But the Massachusetts
State Police Officer who had been assigned to be part of the team
investigating Holyoke requested that the County Jail send him
recordings of all calls made by Holyoke. Those recordings included
calls made between Holyoke and Novak.
In the very first call that Holyoke made to Novak, Novak
identified himself as an attorney. The course of the calls
clarified that Holyoke was calling Novak in order to obtain his
services as a lawyer. And now we come to the second error: The
officer in question, upon realizing that he was listening to
privileged communications between a lawyer and his client, should
have immediately stopped listening to the recording.
But the officer did not do that. Instead, the officer
made the troubling choice to continue to monitor the calls between
Holyoke and Novak. During these calls, it became clear that Holyoke
wanted to remove his prior convictions from his record not by legal
means, but by having Novak file false affidavits in order to vacate
his prior convictions.
Upon hearing this information, government officials
approached Holyoke and asked for his cooperation in an investigation
into Novak himself. Holyoke agreed to further recordings of
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conversations between himself and Novak. During the course of those
later conversations, Novak agreed to launder what he was told were
the proceeds of drug trafficking, and to accept $60,000 of that
money in payment.
Novak was arrested and indicted on one count of
endeavoring to obstruct justice, in violation of 18 U.S.C. §1503,
and two counts of money laundering, in violation of 18 U.S.C.
§1956(a)(3)(B) and (C).
He filed a motion to suppress the recordings, claiming
that Holyoke’s consent to cooperate in the investigation was only
obtained after the officer unlawfully listened to their first few
conversations. Claiming that first instance of monitoring violated
the Fourth Amendment, Novak argued that the evidence of all the
calls should be suppressed as fruit of the poisonous tree.
The district court agreed with Novak, and suppressed the
evidence. United States v. Novak, 453 F. Supp. 2d 249, 260 (D.
Mass. 2006). The government now appeals.
II.
The question that the parties present to us today is not
whether we approve of the methods that law enforcement employed in
this case, or whether prisons have authority under either state law
or the Sixth Amendment of the United States Constitution to
regularly monitor phone calls made between attorneys and their
clients. While we recognize that the facts of this case may
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implicate these wider concerns, appellee Novak has limited his
arguments in favor of suppression to a Fourth Amendment claim. Our
holding is thus similarly circumscribed.
A telephone call can be monitored and recorded without
violating the Fourth Amendment so long as one participant in the
call consents to the monitoring. United States v. White, 401 U.S.
745, 752 (1971) (plurality opinion); cf. Griggs-Ryan v. Smith, 904
F.2d 112, 116 (1st Cir. 1990) (discussing consent in Title III
context but equating it to consent required for Fourth Amendment
purposes). Furthermore, inmates and pretrial detainees who have
been exposed to the sort of warnings that Holyoke saw here have been
deemed to have consented to monitoring. Cf. United States v.
Footman, 215 F.3d 145, 155 (1st Cir. 2000) (“[A] prison inmate’s
express acceptance of having his calls recorded as a condition of
using the telephone” counts as consent, notwithstanding any argument
as to duress). At the beginning of every call that Holyoke made,
including those to attorney Novak, he heard an automated message
advising that his calls were being monitored.1 Holyoke nonetheless
spoke to Novak after having heard the warning.
There is little question, given the state of First Circuit
precedent, that had Holyoke spoken to anyone other than an attorney
1
Novak’s office was also made aware of the monitoring through
this recorded message. Because the government chose not to argue
that Novak consented to monitoring of the call, we do not discuss
the significance of this point.
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from whom he was seeking legal advice, he would be deemed to have
consented to monitoring and recording of his calls. The question
we are now presented with is whether the analysis of Holyoke’s
consent changes because he was speaking with an attorney.
No doubt, the monitoring of Holyoke’s calls to his
attorney presents a significant Sixth Amendment issue. Cf. Swidler
& Berlin v. United States, 524 U.S. 399, 403 (1998) (discussing
importance of attorney-client privilege); United States v.
Mastroianni, 749 F.2d 900, 907 (1st Cir. 1984). Novak, however,
does not raise a Sixth Amendment challenge to the introduction of
these recordings; he claims, instead, that monitoring of the calls
violated his Fourth Amendment rights.
The district court below relied on the fact that both
state and federal governments have recognized the value of
unmonitored calls between an attorney and his client, and the state
of Massachusetts has barred monitoring of such calls by regulation.
See Novak, 453 F. Supp.2d at 259. We agree with the district court
that the calls between Novak and Holyoke should never have been
recorded under the applicable Massachusetts regulation. See 103
Mass. Code Regs. 482.08 (1994). (While Novak also implies that the
monitoring violated federal regulations, the federal regulation at
issue applies only to treatment in federal prisons. 28 U.S.C.
§500.1(c), (d).) We disagree, however, that the violation of state
law implies that Holyoke lacked the necessary consent.
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First, the Supreme Court has held that “when States go
above the Fourth Amendment minimum, the Constitution’s protections
concerning search and seizure remain the same.” Virginia v. Moore,
128 S. Ct. 1598, 1605 (2008). Here, there is no question that
Massachusetts law was violated. That does not, however, invalidate
Holyoke’s consent for Fourth Amendment purposes. In the absence of
the state regulations that Novak cites, we would find no Fourth
Amendment bar to the monitoring of phone calls. The state
regulation cannot alter Holyoke’s consent.
Second, there is no evidence that Holyoke was aware of
this state regulation, or that he believed his consent to monitoring
of phone calls was limited only to non-attorney-client calls. We
thus find no reason to believe that Holyoke’s consent was vitiated
by the prison officials’ failure to abide by the applicable
regulations.
The district court believed that the prison’s failure to
tell Holyoke of his right to exempt calls to his attorney from
monitoring nullified Holyoke’s consent. It stated that Holyoke did
not consent freely to the monitoring because he believed he had no
other option but to submit to recording if he wished to talk to
Novak by telephone. Under such circumstances, the district court
reasoned, “ ‘implied consent’ in this sense is not a free and
voluntary consent; it is instead no more than a choice between
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unattractive options. . . .” Novak, 453 F. Supp. 2d at 259 (quoting
Langton v. Hogan, 71 F.3d 930, 936 (1st Cir. 1995)).
This argument, however, proves too much. While the
district court found Novak and Holyoke had a protected interest in
the privacy of their conversation precisely because they were
attorney and client, under Title III, consent is also required for
monitoring of all prison calls. The district court’s argument that
Holyoke’s implied consent under these circumstances was invalid is
inconsistent with First Circuit precedent holding such consent to
be adequate, notwithstanding the smaller number of choices that an
inmate in that circumstance has. Footman, 215 F.3d at 155.
This Circuit has held that recordings obtained under
similar circumstances between an inmate and a non-attorney did not
violate the Fourth Amendment. Id. The inmate in Footman was given
no choice but to accept monitoring of the calls. Notwithstanding
his inability to opt out of monitoring, this Circuit held that his
consent was effective.
It is no doubt significant that one of the parties to the
conversation in this case is an attorney. That significance,
however, does not arise out of the Fourth Amendment’s prohibition
against unreasonable searches and seizures. Instead, it is attached
to the protections that the Sixth Amendment affords to the attorney-
client relationship. Holyoke’s consent, for Fourth Amendment
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purposes, was adequate to support the monitoring of his calls to
Novak.
Holyoke was made aware, both through posted signs and
recorded messages, that his calls would be monitored and recorded.
He did not ask prison officials if there was a way to communicate
with his attorney without having his calls monitored, nor did he ask
either his Federal Defender or Novak himself how to avoid the
monitoring of calls. He did not choose alternate means to
communicate with Novak, such as by letter or in person. Instead,
Holyoke initiated telephone calls to Novak and discussed sensitive
legal issues, despite the fact that every call he initiated started
with a recording stating that the call was subject to monitoring and
recording. Under these circumstances, we hold that Holyoke
consented to monitoring of his calls.
III.
Because Holyoke consented to monitoring of his calls,
those calls—including those made between Holyoke and his
attorney—can be introduced into evidence consistently with the
requirements of the Fourth Amendment.
We recognize that there are Constitutional dimensions to
the monitoring that occurred we do not discuss in this opinion. The
monitoring of these calls, made between an attorney and a client who
is seeking legal advice, is troubling. We thus reiterate that in
holding as we do, we do not express approval of the practice of
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monitoring calls between attorneys and clients in prisons and jails.
We have not found a Fourth Amendment problem in this particular
instance. Because Novak chose not to raise the question, we do not
decide whether, or to what extent, calls between attorneys and
clients made from prison can be monitored consistently with the
requirements of the Sixth Amendment.
REVERSED.
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