The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
Defendant James Marcello ("Defendant" or "Mr. Marcello") moves to suppress certain intercepted conversations and all evidence derived therefrom. He argues that the Government failed to comply with the sealing requirements contained in Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"), as amended, 18 U.S.C. § 2510 et seq, and that the recordings should therefore be suppressed.*fn1 The potential evidence in question was all intercepted while Mr. Marcello was incarcerated at FCI Milan, Michigan. The Government recorded conversations Mr. Marcello had with his brother and others in the prison visiting room.
In its response to Defendant's Motion to Suppress, the Government argues that it complied with Title III's sealing requirements. Nowhere in that response does the Government suggest that Title III might not apply. However, in a brief the Government later filed, in response to a motion made by a different defendant (Michael Marcello), the Government argued that Title III does not apply at all in the prison context. The Government argued, therefore, that Michael Marcello's motion to suppress should be denied irrespective of whether the sealing requirements in § 2518 were followed. In that later-filed response, the Government sought leave to retroactively apply the argument regarding Title III's applicability to James Marcello's motion.
I had originally scheduled a hearing solely to assess whether the Government complied with the sealing requirements. In light of the Government's new argument, I provided Defendant with an opportunity to file supplemental briefing. The hearing, which occurred on June 15, 2007, then addressed both (1) whether Title III applies in this context; and (2) assuming Title III does apply, whether the Government complied with the sealing requirements in § 2518(8).
The sealing requirement is contained in 18 U.S.C. § 2518(8)(a). It states, in pertinent part:
The contents of any wire, oral, or electronic communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device. The recording of the contents of any wire, oral, or electronic communication under this subsection shall be done in such a way as will protect the recording from editing or other alterations. Immediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing such order and sealed under his directions.
The Government argues, however, that "[w]ithout a legitimate and reasonable expectation of privacy, the Fourth Amendment is not invoked, and the protections of Title III do not apply." Indeed, the statute defines "oral communication" as "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation, but such term does not include any electronic communication." 18 U.S.C. § 2510(2) (emphasis added).*fn2
III. APPLICABILITY OF TITLE III
I find that Title III does not apply to the Government's interception of Mr. Marcello's conversations while he was incarcerated. The plain language of Title III reveals that, in the context of oral communications, the statute only applies when the participants in the conversation had a reasonable expectation of privacy. See 18 U.S.C. §§ 2510(2); 2518(8)(a). Mr. Marcello had no reasonable expectation of privacy while incarcerated at FCI Milan, thus, the statute does not apply.
I find that, because Mr. Marcello was incarcerated, he had no reasonable expectation of privacy. In Hudson v. Palmer, 468 U.S. 517, 525-26, the Supreme Court held that a prisoner does not have a reasonable expectation of privacy in his prison cell. If a prisoner does not have a reasonable expectation of privacy in his cell, then a fortiori, he does not have one in the common areas of the prison (e.g., the visiting rooms). The Fifth Circuit has also concluded that inmates do not have a reasonable expectation of privacy. United States v. Harrelson, 754 F.2d 1153, 1169 (5th Cir. 1985) (noting that "one who expects privacy under the circumstances of prison visiting is, if not actually foolish, exceptionally naïve"). In light of the fact that all of the conversations at issue here occurred while Mr. Marcello was incarcerated, I conclude that he did not have a reasonable expectation of privacy.
The Harrelson opinion also supports the broader conclusion that Title III does not apply here. Harrelson is the one case I found where a court actually issued a holding on facts that are on all fours with the situation here. In Harrelson, the incarcerated defendant's conversations with a visitor were surreptitiously recorded by an inmate in an adjacent cell. 754 F.2d 1169. The court held that Title III did not apply. Id. It reasoned that the conversations were not "oral communications" because the participants did not have a reasonable expectation of privacy as they spoke to each other in jail. Id. Like the Harrelson ...