United States District Court, N.D. Georgia, Gainesville Division
RICHARD W. STORY, UNITED STATES DISTRICT JUDGE
matter is before the Court on the Report and Recommendation
of Magistrate Judge J. Clay Fuller [Doc. No. 288 in 2:16-CR-9
and Doc. No. 201 and Doc. No. 236 in 2:16-CR-10]. Defendants
have filed objections to the Report and Recommendation. In
reviewing a Report and Recommendation, the district court
"shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made." 28 U.S.C.
§ 636(b)(1). "Parties filing objections to a
magistrate's report and recommendation must specifically
identify those findings objected to. Frivolous, conclusive,
or general objections need not be considered by the district
court." United States v. Schultz. 565 F.3d
1353, 1361(11th Cir. 2009) (quoting Marsden v.
Moore, 847 F.2d 1536, 1548 (11th Cir. 1988)) (internal
quotation marks omitted). Absent objection, the district
judge "may accept, reject, or modify, in whole or in
part, the findings and recommendations made by the magistrate
[judge], " 28 U.S.C. § 636(b)(1), and need only
satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation.
accordance with 28 U.S.C. § 636(b)(1), the Court has
conducted a de novo review of those portions of the
R&R to which Defendants object and has reviewed the
remainder of the R&R for plain error. See United
States v. Slay. 714 F.2d 1093, 1095(11th Cir. 1983). The
Court hereby OVERRULES the objections and adopts the R&R
[Doc. No. 288 in 2:16-CR-9 and Doc. No. 201 and Doc. No. 236
in 2:16-CR-10] as the opinion and order of this Court.
However, the Court wishes the record to reflect that
Defendants made very persuasive arguments for suppression and
that this was a very close case. For the sake of the
appellate record, the Court will briefly address the
difficult issues raised in this case.
as to the issue of out-of-state interceptions that may have
occurred in this case, the primary Eleventh Circuit direction
on this issue is contained within United States v.
Pierre. 435 Fed.Appx. 905 (11th Cir. 2011), an
unpublished opinion. Pierre clearly stands for the
proposition that an "interception" of a cellular
telephone call occurs both at the location of the telephone
and at the site where law enforcement authorities hear and
record the call. This definition of "interception"
was also adopted by the Georgia Supreme Court in
Luangkhot v. State. 736 S.E.2d 397 (Ga. 2013). After
the 2013 amendment to Georgia's wiretap statute, it
appears that as long as the listening post is in the state of
Georgia, there is no jurisdictional problem. The Court notes
that in Pierre and in State v. McCormick.
719 So.2d 1220 (Fla. 5th DC A 1998), the Florida case cited
in Pierre. both the listening post and the phone
were apparently in the state of the issuing judge. Based on
the language of those decisions, however, the Court can see
no basis for distinguishing the situation in which the phone
is located outside the state. The Court notes that this
holding places basically no restriction on the jurisdiction
of a judge to issue a wiretap order so long as the listening
post is within the judge's jurisdiction.
as to the sealing requirements, 18 U.S.C. § 2518
provides that the recording must be "made available to
the judge issuing such [wiretap] order and sealed under his
directions." Here, the recordings were made available to
the judge and placed in an evidence bag, which the judge
initialed. Setting aside the timeliness issue, this receipt
and sealing of the recordings was not defective. The statute
provides that "[c]ustody shall be wherever the judge
orders." The Court finds that it is possible that a
judge could provide for custody of the recordings in the
authorization order, which in fact occurred in this case.
Although this is not the preferred procedure, which would
include a written order after the wiretaps have concluded,
this does not rise to the level that would warrant
as to the delay in sealing, this was the most problematic
issue for the Court. There is no question that the recordings
were not immediately presented to the judge after expiration
of the wiretap authorization order. See United States v.
Matthews. 431 F.3d 1296, 1307 (11th Cir. 2005)
("immediately" means "within one or two
days"). The case law is clear that the reason for this
rule is to prevent tampering with the wiretap recordings.
And, in this case, the Government had access to the
recordings. However, the recordings were retained by the
Clerk in a sealed bag with an unbroken seal.
considering whether the Government has provided a
"satisfactory explanation" for the delay in
sealing, the Eleventh Circuit has not articulated a standard.
As a result, the Court has examined persuasive authority from
other jurisdictions, most of which addresses excuses offered
by attorneys. After must reflection, the Court believes that
in this circumstance, in which a law enforcement officer
relied on a "go-by, " then submitted the proposed
order to the District Attorney for his review, and then
received the signed order from the judge, the law enforcement
officer can reasonably rely upon the order. This outcome
might well have been different if the Government official
were a lawyer, because the Court would likely find that a
lawyer would have an affirmative duty to do more to ensure
compliance with the statute. In this case, minimal research
would have informed a lawyer that a ten-day delay is
these issues alone warrant suppression. However, considered
cumulatively, the decision is much closer. The Court has
struggled with implicitly condoning the procedural errors
that occurred in this investigation, but after carefully
reviewing the briefing, the Report and Recommendation, and an
immense volume of case law, the Court finds that suppression
is not warranted.
reasons discussed above, Defendants' Motions to Suppress
[Doc. Nos. 109, 113, 134, 135, 136, 143, 157, 162, 207, 208,
209, 210, 214, 227, 237, and 271 in 2:16-CR-9 and Doc. Nos.
78, 85, 110, 111, 119, 127, 140, 167, 187, and 235 in
2:16-CR-10] are DENIED. These cases ...