Wednesday, May 20, 2009

Non-Governmental Interception of Phone Calls Requires Suppression

US v. Crabtree: Crabtree was on supervised release, living with his girlfriend. When she became suspicious about Crabtree's relationship with his ex-wife, she began taping his phone calls. Among other things, the calls showed Crabtree threatened to burn down the ex's home and truck (I assume - it's difficult to say whether the threat was to the ex or the girlfriend, from the way the opinion is written) and set up a third party to be arrested. The girlfriend called Crabtree's probation officer to report that she was throwing him out of the house and turned over the recordings. Crabtree was charged with 13 supervised release violations, the most serious of which sprang from the recorded phone calls. After considering those recordings, the district court revoked Crabtree's term of supervised release and sentenced him to 24 months in prison.

On appeal, the Fourth Circuit vacated and remanded for further proceedings. First, the court noted that the girlfriend clearly violated the wiretap provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 because neither Crabtree nor his ex consented to the recording and the girlfriend was not a party to the conversations. Second, the court noted that 18 USC 2515 generally excludes the use of evidence procured in violation of Title III. Finally, the court rejected the district court's reading of a "clean hands" exception into section 2515. Noting that the circuits are split on whether such an exception exists, the Fourth sides with the majority and agrees that it does not. The language of 2515 is clear and has no "gaps or shadows in the language that might leave lurking a clean-hands exception."

Although there were other violations found by the district court, those based on the recordings were the most serious and thus required remand.

Congrats to the defender office in the Western District of Virginia on the win!

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