The opinion of the court was delivered by: James B. Zagel United States District Judge
MEMORANDUM OPINION AND ORDER
The defendant William F. Cellini, Sr. seeks suppression of evidence acquired under Title III warrants. The motion is directed to the manner in which the statutory requirement of minimization was met and the period of time the overhearing continued in effect.
The warrant was applied for in April 2004. There was a showing of probable cause (not challenged here) to find that Stuart Levine, Peter Hurtgen and Jacob Kiferbaum were engaged in an ongoing scheme to ensure that Kiferbaum's construction company would become the builder of a hospital and medical structure for Edward Hospital ("Edward"). Building the structure required approval for a certificate of need by the Illinois Health Facilities Planning Board, of which Levine was an influential member. In December 2003, Edward's application to build was denied because it had not hired Kiferbaum.*fn1
The warrant was signed on April 7, in advance of the scheduled April 21 meeting of the Planning Board.
There were overhears of three interceptees discussing the specifics of the plan to ensure that Kiferbaum got the contract. There were other conversations, as well, alluding to the details of the Edward application for a certificate of need.The application for a certificate was denied in part and continued in part. Edward Hospital was upset.
The Government sought an extension of the warrant to cover the June meeting.The number of interceptees grew significantlybut did not include the defendant Cellini. Judge Kocoras granted the extension on May 6. During this extension period there were five calls between Levine and Cellini intercepted under the warrant. The content of the calls did not include discussion of Edward or Mercy.
The minimization provisions, commonly appearing in Title III warrants, are required by the statute authorizing these interceptions. The court orders required that "all monitoring of wire communications shall be conducted in such a way as to minimize the interception and disclosure of the communications intercepted to those communications relevant to the pending investigation . . . as further described in the attached affidavit."
The standard minimization language is terse, so the prevailing practice has been to issue minimization instructions to the agents who will monitor the interceptions and who sign acknowledgment of the instructions. The instructions here said: "If [a] conversation is unclear but may relate to other criminal activities, interception should cease after [a short period of minutes] unless it can be determined within that time that the conversation does in fact relate to other criminal activities, in which case interception may continue." Moreover, later in the instructions, the agents were told:
We do not have authorization to overhear evidence concerning the commission or planning of crimes other than those defined above as illegal activities. Our authorization is limited to the interception of conversations between our named subjects and co-conspirators, accomplices, aiders and abettors, or participants concerning the illegal activities. In the event, however, that while you are attempting to determine whether a given conversation is pertinent, you intercept a conversation involving another serious crime--for example, assault, robbery, homicide or hijacking--listen to and record that conversation. Then notify the Supervising Agent and Supervising Attorney immediately.
The defendant Cellini asserts, and I assume to be true, that his recorded conversations with Levine concerned only the Teachers Retirement System ("TRS") and efforts by an investment manager to receive an allocation of TRS funds to invest for TRS.*fn2 These recordings were the result of instructions that told the agents to listen and record all calls that agents believed may have related to criminal activity unrelated to the investigation.
The minimization instruction, argues the Government, did not permit overhearing conversation of any crime. Rather it permitted agents who were properly overhearing a conversation to continue (past the time limit for non-pertinent calls) to monitor conversations that involved a crime, even one that was not part of the subject offenses. What is not permitted is to monitor a call beyond the permitted 'test period' when it appears during the 'test period' not to concern criminal matters. The agents have authority to do periodic spot checks to see if the conversation has turned to the criminal matters which are the subject of the Title III warrant.
The instruction permits agents to monitor all conversations for a reasonable period not to exceed two minutes to determine whether one of the subject persons is present and participating in the conversation and whether the conversation concerns criminal activities. If the conversation does not concern criminal activities or is otherwise privileged, the overhear must stop. Listening and recording devices must be turned off. The two-minute period is a maximum limit. If it ...