4th Circuit To Hear Oral Argument On Denial Of Suppression Of Wiretap Evidence – Will Address Government Interception Of ‘Non-Pertinent’ And Privileged Communications

On January 30, 2013, the United States Court of Appeals for the Fourth Circuit will hear oral argument on the matter of U.S. v. Michael White, Case No. 11-5181. One of the questions before the Court will be whether the United States District Court for the District of Maryland erred in denying appellants’ motions to suppress evidence derived from wiretaps, including a call from a client to his attorney’s voice mail.

During pre-trial proceedings in the underlying matter, defendants filed motions to suppress evidence derived from wiretaps that had been authorized by interception orders. The interception orders required minimization of any “nonpertinent” or “privileged” calls. Defendants alleged that agents violated the terms of the orders in that not one of the over 11,000 calls monitored during a three month period was minimized and at least one call from a target (later defendant) to his attorney’s voice mail was deliberately monitored, in violation of the order to minimize privileged calls, resulting in the discovery of “pertinent” information.

The government denied that agents had not minimized any calls. Further, the government argued that the call from a defendant to his attorney’s voice mail was not privileged (and therefore the agents did not violate the minimization guidelines by monitoring the call) because it consisted only of a defendant inquiring about the date of a civil case; it was not a “conversation” between attorney and client as it did not address the subject matter of the defendant’s legal problems.  According to the government, the call was pertinent in that the defendant provided a different phone number to his attorney than the number from which he had called, however, no evidence was derived from the intercepted voice mail.  Moreover, the government argued that even if there was a violation of the minimization instructions, the only remedy available to the defendants was suppression of the calls that should have been minimized, not, as defendants requested, suppression of the entire wiretap. The government indicated that it did not intend to introduce any of the challenged calls, including the call to the attorney’s voice mail.

The district court denied the defendants’ motions to suppress evidence derived from the wiretaps.  The court found that there was no showing of any “minimization issues.” Additionally, the court ruled that “at most some of those calls would be suppressed, but there is absolutely no basis to suggest that the entire wiretap would be suppressed.”  The court informed defense counsel that the matter could be addressed again at trial if counsel felt there were calls being introduced that violated the minimization guidelines.

Defendants were ultimately convicted of conspiring to distribute cocaine and cocaine base in violation of 21 U.S.C. § 846.  Defendants appealed to the Fourth Circuit, arguing, amongst other things, that the court erred by not finding that a call from a client to his attorney’s voice mail was privileged and by not inquiring whether evidence had been “derived from” that privileged communication simply because the government did not intend to introduce the improperly monitored calls at trial. Defendants further contend that Title III requires suppression of evidence derived from the unlawfully intercepted calls, and not merely exclusion of the calls themselves.