UNITED STATES v. ORTIZ LOPEZ (2023)

SEALED MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS

Defendant Ricardo Santiago Ortiz-Lopez moves to suppress the contents of certain incriminating conversations he had in his company truck, which his employer recorded using a camera it installed in the truck's dashboard. Mot., ECF No. 80. For the following reasons, the Court GRANTS the Motion.

I. BACKGROUND 1

The Government alleges that, on April 23, 2022, Defendant drove a commercial tractor-trailer owned by his employer, Outwest Express Trucking, LLC, to a Border Patrol checkpoint located within the United States. See Crim. Compl., ECF No. 1, at 2;² see also Mot. at 2 (characterizing Defendant as an Outwest employee). The Government claims that Border Patrol performed an immigration inspection and discovered 48 undocumented aliens hiding in the truck's trailer. Crim. Compl. at 2. The Government thus charges Defendant with unlawfully transporting aliens, as well as conspiracy to do the same. Indictment, ECF No. 26.

Outwest's trucks—including the one that Defendant allegedly used to transport aliens—contain dashboard cameras that are capable of recording both video and audio. Mot. at 2; Report Investigation (“ROI”), ECF No. 80-2, at 3. Defendant claims that, at his new driver orientation training, Outwest informed him that the trucks contained cameras, but assured him that they “only recorded the very limited seconds surrounding ‘triggering events’ such as a hard break [sic], unusual acceleration, collisions, and vehicle accidents,” which this Court will call “adverse traffic events” for short. Mot. at 2. According to Defendant, Outwest “assured trainees that the cameras only captured and saved the triggering event data when the cameras detected some kind of risky driving, and only transmitted those few seconds of video surrounding the triggering event to a manager if a traffic incident occurred.” Id. Defendant insists that Outwest told him that “the triggering footage was only saved long enough to resolve the traffic dispute or train the employee on the relevant safety point, and that Outwest does not otherwise collect, permanently store, or continuously monitor video footage.” Id. at 2–3.

The Government does not dispute that Outwest told Defendant that the dashboard cameras would not record video or audio except during adverse traffic events.³ See Resp., ECF No. 86, at 7–8 & n.1. For instance, the Government does not ask the Court to hold an evidentiary hearing at which Outwest personnel would testify that they never told Defendant that the cameras would only activate when they detected unsafe driving and would record only small snippets of audio and video. See id. The Court therefore proceeds on the assumption that Outwest did indeed assure Defendant that it would not otherwise record his actions and communications in his truck.

Outwest's assurances were inaccurate. Outwest in fact recorded a substantial amount of audio and video of the events leading up to Defendant's arrival at the Border Patrol checkpoint and ultimately provided that footage to Homeland Security Investigation agents. ROI at 1–4. That footage reportedly depicts Defendant having incriminating conversations with (1) an unidentified person via Defendant's cellular phone, and (2) his co-defendant Juan Orlando Galindo-Torres,⁴ who was riding in the truck's passenger seat.⁵

The agents asked Outwest personnel whether Outwest requires its drivers to sign a form acknowledging that Outwest records audio and video inside its trucks. Id. at 3. Outwest reportedly replied that it now has a policy requiring drivers to sign such an acknowledgement form, but it didn't have such a policy when it hired and trained Defendant. Id.

Defendant claims that, because he “never consented to being recorded” other than for brief periods during adverse traffic events, “never knew his ․ communications could be or were being recorded,” and “did not consent to the collection, storage, review, or distribution of any recordings of his conversations,” Outwest unlawfully “intercepted his ․ communications in violation of” the Federal Wiretap Act (the “Act”)⁶ “and provided them to the Government in violation of that Act.” Mot. at 3. On that ground, Defendant moves to suppress the contents of not only his telephone conversations, but also his in-person communications with his co-defendant in the truck.⁷ Id. at 1; Reply, ECF No. 89, at 4.

II. DISCUSSION

A. Applicable Law

With various exceptions, the Act makes it unlawful for “any person” to “intentionally intercept[ ] ․ any wire [or] oral ․ communication.” 18 U.S.C. § 2511(1)(a). “ ‘[I]ntercept’ means the aural or other acquisition of the contents of any wire ․ or oral communication through the use of any electronic, mechanical, or other device.” Id. § 2510(4). Notably, the Act applies not just to governmental interceptions of wire and oral communications, but also to interceptions by private parties. See, e.g., Chandler v. U.S. Army, 125 F.3d 1296, 1298, 1302 (9th Cir. 1997).

1. “Oral” Versus “Wire” Communications

The Act defines an “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.”⁸ 18 U.S.C. § 2510(2).

A “wire communication,” by contrast, is

any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce.

Id. § 2510(1).

Unlike “oral communications,” whether a communication qualifies as a “wire communication” does not depend on whether the communicator expects “that such communication is not subject to interception.” Compare id. § 2510(2), with id. § 2510(1). In other words, “interception ․ of wire communications is forbidden regardless of the speaker's expectation of privacy.” Briggs v. Am. Air Filter Co., 630 F.2d 414, 417 & n.4 (5th Cir. 1980).

2. The Prior Consent Exception

There are several significant exceptions to the Act's prohibition against intercepting wire and oral communications.⁹ As particularly relevant to this case, it is—with an exception not applicable here—“not ․ unlawful under” the Act “for a person not acting under color of law ¹⁰ to intercept a wire, oral, or electronic communication ․ where one of the parties to the communication has given prior consent to such interception.” 18 U.S.C. § 2511(2)(d) (emphasis added).

3. The Act's Evidentiary Exclusion Provisions

The Act affords various remedies to persons whose communications are intercepted in violation of the Act. As relevant here, “[w]henever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial ․ before any court ․ if the disclosure of that information would” violate the Act. Id. § 2515. To effectuate that prohibition, the Act authorizes “[a]ny aggrieved person ¹¹ in any trial ․ before any court” to “move to suppress the contents of any wire or oral communication intercepted pursuant to [the Act], or evidence derived therefrom, on the grounds that ․ the communication was unlawfully intercepted.” Id. § 2518(10)(a).

B. The Court Must Suppress Defendant's Communications Under the Act

Defendant maintains that, by recording his in-person conversations with his co-defendant and his cell phone communications with an unidentified individual, Outwest intercepted those communications in violation of the Act. Mot. at 3. Defendant therefore moves to suppress those communications under the Act's evidentiary exclusion provisions. Id.

The Government opposes the Motion on two grounds. The Government first argues that the Act doesn't protect Defendant's conversations because they do not qualify as “wire communications” or “oral communications” as the Act defines those terms. Resp. at 5–7; see also 18 U.S.C. § 2515 (“Whenever any wire or oral communication has been intercepted ․” (emphasis added)). In the alternative, the Government argues that the alleged interception was lawful because Defendant gave his “prior consent” to being recorded under Section 2511(2)(d). Resp. at 7–8. For the following reasons, the Court rejects both of the Government's arguments.

1. Wire and Oral Communications

a. Defendant's Cell Phone Communications Qualify as “Wire Communications”

The Government first maintains—without citing to authority—that Defendant's conversations with the unidentified individual via his cell phone “do not meet the definition of wire communications” because they “were made out loud in the cab of the truck,” and didn't use “facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station).” Id. at 6; see also 18 U.S.C. § 2510(1).

The Court disagrees. “[C]ommunications using cellular phones are considered wire communications under the statute”—“despite the[ir] apparent wireless nature”—“because cellular telephones use wire and cable connections when connecting calls.” The Co. v. United States, 349 F.3d 1132, 1138 n.12 (9th Cir. 2003).¹² Defendant's cell phone conversations therefore qualify as “wire communications” under the Act.¹³

Because the Act's exclusionary remedy applies to “wire or oral communication[s],” see 18 U.S.C. §§ 2515, 2518(10)(a) (emphasis added), the Court need not consider whether Defendant's wire communications with the unidentified individual would also qualify as oral communications. Whether Defendant had a justified expectation of privacy with regard to his cell phone communications is therefore irrelevant to whether the Act protects those communications.¹⁴ See Briggs, 630 F.2d at 417 & n.4 (“[I]nterception ․ of wire communications is forbidden regardless of the speaker's expectation of privacy.”).

b. Defendant's In-Person Discussions With His Co-Defendant Qualify as “Oral Communications”

Defendant's in-person conversations with his co-defendant in the truck's cab, by contrast, are clearly not “wire communications.” See 18 U.S.C. § 2510(1). Whether the Act protects those conversations therefore depends on whether they qualify as “oral communications”—which in turn depends on whether Defendant “exhibit[ed] an expectation that” those communications were “not subject to interception under circumstances justifying such expectation.” See id. § 2510(2).

To evaluate whether a speaker has a justified expectation of privacy in his communications under Section 2510(2), courts in the Fifth Circuit apply a standard similar to the “reasonable expectation of privacy” test that applies in the Fourth Amendment context.¹⁵ The court first asks “whether the individual, by his conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that he sought to preserve something as private.” Kee, 247 F.3d at 212 (cleaned up). The court then “inquire[s] whether the individual's expectation of privacy is one that society is prepared to recognize as reasonable.” Id. (quoting Bond v. United States, 529 U.S. 334, 338, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000)). To perform that analysis, “courts have looked to considerations such as:”

(1) The volume of the communication or conversation;

(2) The proximity or potential of other individuals to overhear the conversation;

(3) The potential for communications to be reported;

(4) The affirmative actions taken by the speakers to shield their privacy;

(5) The need for technological enhancements to hear the communications; and

(6) The place or location of the oral communications as it relates to the subjective expectations of the individuals who are communicating.

Id. at 213–15.¹⁶ These six factors are “nonexclusive,” and they “do not [conclusively] define” whether a communicator enjoys a “subjective expectation of privacy in oral communications” he conducts in a particular space. Id. at 215.

The parties did not cite—and the Court could not independently locate—any case analyzing whether an employee may reasonably expect that conversations he conducts in a vehicle owned by a nongovernmental employer will remain private. The Government instead attempts to analogize this case to United States v. Harrelson, in which the FBI gave an inmate a tape machine to record a conversation the defendants conducted in a jail. 754 F.2d 1153, 1169 (5th Cir. 1985). The Harrelson court determined that the recorded conversation did not qualify as an “oral communication” under the Act because the defendants had no reasonable expectation of privacy in the jail. Id. at 1171. As the Fifth Circuit explained, “a jail shares none of the attributes of privacy of a home, an automobile, an office or a hotel room. In prison, official surveillance has traditionally been the order of the day.” Id. at 1170 (quoting Lanza v. New York, 370 U.S. 139, 143, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962)).

This Court rejects the Government's implication that an employee's work vehicle is functionally equivalent to a prison for the purposes of determining whether that employee has a reasonable expectation of privacy. Although a driver for a private transportation company does not enjoy the same level of privacy in his truck that he enjoys in his home, he still is not subject to the panoptic surveillance and control that prisoners must endure. Cf. Long v. County of Saginaw, No. 12-cv-15586, 2014 WL 5460630, at *6 (E.D. Mich. Oct. 27, 2014) (“The privacy expectation in one's office is different than the privacy expectation ․ in a public[ly]-maintained jail or prison.”).

A closer—but still imperfect—analogy is to communications that a police officer conducts in his patrol car. In Gross v. Taylor, for example, two officers sued their police department and its employees under the Act for installing cameras and microphones in their patrol cars, which allegedly recorded private conversations the officers had on duty. No. Civ.A. 96-6514, 1997 WL 535872, at *1, *3–4 (E.D. Pa. Aug. 5, 1997). The court held that the officers’ conversations did not qualify as “oral communications” because the officers lacked “a reasonable expectation of privacy in their on-duty conversations in the police cars.” Id. at *17. The court first explained that “[t]he nature of [a] patrol car”—which “is associated with the purposes of preventing crime and controlling criminals”—“diminishes the reasonable expectation of privacy in activities and conversations taking place within it.” Id. at *7. Moreover, the onboard surveillance system was immediately visible to the car's occupants.¹⁷ Additionally, police department personnel had informed the plaintiffs that they had installed the surveillance system in the plaintiffs’ cars, and the record contained “no evidence that [the plaintiff police officers] were told that the system would not be used to record them.” Id. The court therefore concluded that “[t]he system's explained purpose, known presence in the patrol cars, and particular features would have placed a reasonable person on notice that there was a strong possibility that conversations could be intercepted.” Id.

To the extent one might characterize a police officer's assigned patrol car as a “company vehicle” in which he conducts his employer's business, cf., e.g., United States v. Clark, 22 F.3d 799, 801 (8th Cir. 1994) (characterizing “[a] marked police car” as “essentially the trooper's office”), one might interpret Gross to imply that truck drivers likewise lack a reasonable expectation of privacy in conversations they conduct in their company vehicles. However, there are legally significant distinctions between a police car and a private transportation company's truck. Unlike a company truck, “[a] marked police car is owned and operated by the state for the express purpose of ferreting out crime,” and it “is frequently used as a temporary jail for housing or transporting arrestees and suspects.” Id. at 801–02. For that reason, the Gross court reasoned that a police car is analogous to a prison for the purposes of evaluating whether it is reasonable for the patrol car's occupants—be they police officers or suspected offenders ¹⁸ —to assume their communications will remain private. 1997 WL 535872, at *7 (“Like the prison, the patrol car is associated with the purposes of preventing crime and controlling criminals. The nature of the patrol car diminishes the reasonable expectation of privacy in activities and conversations taking place within it.” (emphasis added)). A private company's truck, by contrast, has no equivalent function of constraining and controlling persons accused of committing criminal offenses. Thus, just as this Court is hesitant to equate Defendant's truck to a prison for the purposes of the “reasonable expectation of privacy” analysis, it is likewise hesitant to equate the truck to a police car.

In any event, Gross is distinguishable on the additional ground that the record in Gross contained “no evidence that [the p]laintiffs were told that the system would not be used to record them.” Id. The Gross court opined that “[s]uch a promise or encouragement in combination with a plaintiff's assertion of privacy might be sufficient to make an expectation of privacy or non-interception reasonable.” Id. Here, by contrast, Defendant maintains—and the Government does not dispute—that Outwest assured Defendant that the truck's onboard dashcam would only record drivers during adverse traffic events. Mot. at 2–3. To that extent, Defendant has a stronger claim to a reasonable expectation of privacy than the plaintiffs in Gross.

The Court therefore finds it most fruitful to analogize a truck driver's company vehicle—which essentially functions as the driver's “office” while he is performing duties for his employer—to a private employee's workplace. Courts across the country have recognized that, in at least some circumstances, employees may justifiably “manifest[ ] a subjective expectation of privacy in their workspace.” Cressman, 77 F. App'x at 746 (citing United States v. McIntyre, 582 F.2d 1221, 1224 (9th Cir. 1978)). For instance, in United States v. McIntyre, an employer surreptitiously placed a microphone and transmitter in a briefcase and planted it one of its employees’ offices to monitor the employee's conversations. 582 F.2d at 1223. Reasoning that the employee “had a reasonable expectation of privacy in his office,” the McIntyre court held that the conversation the employer had recorded in the employee's office qualified as “an ‘oral communication’ within the meaning of 18 U.S.C. § 2510(2).” Id. at 1224. Even though the bugged employee's office doors were open, and “a records clerk worked fifteen feet away” from the bugged office “in an adjacent room,” the court rejected “the argument that [the] open door made [the employee]’s expectation of privacy unreasonable.” Id. As the court opined, “[a] business office need not be sealed to offer its occupant a reasonable degree of privacy.” Id.

The degree to which any particular employee may reasonably expect privacy in his workspace “must be evaluated on a case by case basis” by applying the six Kee factors set forth above. See Cressman, 77 F. App'x at 745–46. It is difficult to apply those factors here because the parties have not briefed them, see generally Mot.; Resp.; Reply, and the exhibits the parties have attached to their filings lack information bearing on some of the factors.¹⁹ To the extent the Court is able to evaluate the pertinent factors, however, the Court ultimately concludes that Defendant did indeed have a subjectively and objectively reasonable expectation that the conversations he conducted with his co-defendant in his workspace—i.e., the cab of his truck—would remain private. For one, Defendant and his co-defendant did not conduct their conversations in an open, publicly accessible space; rather, they spoke in an enclosed truck tractor.²⁰ Additionally, other Outwest employees would have been unable to hear Defendant's communications absent the “technological enhancements” installed in the truck—i.e., dashboard cameras with audio- and video-recording capabilities. See Kee, 247 F.3d at 214 (admonishing courts to consider “the need for technological enhancements to hear the communications”).

There is, of course, one critical distinction between this case and the McIntyre case discussed above: Whereas the employee in McIntyre had no idea that his employer had “bugged” his office, Defendant was aware that Outwest had installed cameras in his truck. Compare McIntyre, 582 F.2d at 1223–24, with Mot. at 2, and ROI at 3. In that respect, this case is more like Stumm v. Town of Pittsboro, in which a police department installed a camera system in its offices with both video- and audio-recording capabilities. See 355 F. Supp. 3d 751, 754–55 (S.D. Ind. 2018). The cameras recorded conversations that the plaintiff police officers had conducted in the department's offices. Id. at 752–53, 755–56. The officers therefore sued their supervisors for “record[ing] or intercept[ing] their conversations without their knowledge ․ in violation of” the Act. Id. at 753.

Like Defendant here, the plaintiffs in Stumm were aware that the department had installed cameras in the office. Id. at 759–60. The defendants in Stumm therefore argued that the plaintiffs “had no reasonable expectation of privacy in the lobby of the police department or the areas surrounding it,” and that the allegedly intercepted conversations therefore did not qualify as “oral communications” under the Act. Id. at 757–58. Critically, however, the summary judgment record in Stumm contained evidence that the police department had (inaccurately) informed the officers that the cameras “would record video only, and no audio,” and that the plaintiffs would therefore “not be subject to audio recording in the [police department's] offices.” Id. at 759. The Stumm court thus concluded that, if the evidence at trial established that the officers “were explicitly told that their conversations were not being recorded,” then the officers “would have ‘an expectation that such communication[s] [were] not subject to interception,’ ” and their conversations “would therefore qualify as ․ oral communication[s] under the [Act]” even though they were aware of the cameras. Id. at 760.

Similarly, although Defendant was aware that Outwest installed cameras in his truck, the Government does not dispute that Outwest informed Defendant that the cameras would only record video and audio of adverse traffic events, and would not record the sorts of private conversations that Defendant seeks to suppress here. Compare Mot. at 2–3, with Resp. at 7–8 & n.1. Thus, just as the police department's assurances in Stumm that the cameras would not record the officers’ conversations gave those officers a reasonable expectation that their conversations would remain private, Outwest's assurances that their trucks’ dashboard cameras would not record drivers except during adverse traffic events gave Defendant a reasonable expectation that his conversations with his co-defendant would be private. Compare Stumm, 355 F. Supp. 3d at 760, with Gross, 1997 WL 535872, at *7 (“[T]here is no evidence that Plaintiffs were told that the system would not be used to record them. Such a promise or encouragement in combination with a plaintiff's assertion of privacy might be sufficient to make an expectation of privacy or non-interception reasonable.”). Those conversations—which, as far as the record reveals, did not occur during an adverse traffic event—therefore qualify as “oral communications” under the Act. See 18 U.S.C. § 2510(2).

2. Defendant Did Not Consent to the Interception

The fact that the conversations Defendant seeks to suppress qualify as either “wire” or “oral” communications does not end the analysis, however. If Defendant gave Outwest “prior consent” to intercept those communications, then Outwest's recording of those conversations would not violate the Act, and this Court would have no basis to suppress those communications. See id. § 2511(2)(d).

The Government insists that Defendant consented to Outwest recording all of his actions and conversations in the truck because he was aware that the cameras had video- and audio-recording capabilities and nevertheless chose to remain employed as an Outwest driver.²¹ The Court disagrees for the following reasons.

The Act “affords safe harbor not only for persons who intercept [conversations] with the explicit consent of a conversant but also for those who do so after receiving implied consent.” Griggs-Ryan v. Smith, 904 F.2d 112, 116 (1st Cir. 1990) (emphasis added).²² The Government bears the burden to prove consent here. E.g., United States v. Jones, 839 F.2d 1041, 1050 (5th Cir. 1988). However, “[c]onsent ‘should not casually be inferred.’ ” In re Pharmatrak, Inc., 329 F.3d 9, 20 (1st Cir. 2003) (quoting Griggs-Ryan, 904 F.2d at 117–18). “Without actual notice, consent can only be implied when the surrounding circumstances convincingly show that the party knew about and consented to the interception.” Id. (quoting Berry, 146 F.3d at 1011). “[K]knowledge of the capability of monitoring alone cannot be considered implied consent.” Watkins v. L.M. Berry & Co., 704 F.2d 577, 581 (11th Cir. 1983).

Because “[t]he circumstances relevant to an implication of consent will vary from case to case,” Griggs-Ryan, 904 F.2d at 117, it is helpful to contrast two of the seminal cases interpreting the Act's consent exception. In Griggs-Ryan, for example, the plaintiff alleged that his landlord “unlawfully intercepted ․ the contents of a telephone conversation” the plaintiff conducted over the landlord's personal telephone line, which the landlord permitted tenants (including the plaintiff) to use. Id. at 113–14. The landlord had “repeatedly informed” the plaintiff “that all incoming calls” over the landlord's telephone line “were being monitored.” Id. at 117. The plaintiff nonetheless “continued to receive calls and talk unguardedly on [the landlord]’s personal line.” Id. at 118. Because the plaintiff had “persisted in using [the landlord]’s telephone to converse with callers in the face of unambiguous, unqualified notice that every incoming call would be monitored,” the First Circuit held that the plaintiff had consented to the interception of “every portion of every call he accepted on his landlady's line.” Id. at 119. The First Circuit accordingly held that the prior consent exception defeated the plaintiff's claim under the Act. Id.

Compare Griggs-Ryan with Watkins, in which an employee alleged that her employer violated the Act by intercepting a personal call the employee conducted in her office. 704 F.2d at 579. The employer had “an established policy, of which all employees [we]re informed, of monitoring solicitation calls as part of its regular training program.” Id. at 579 (emphasis added). However, the employer permitted employees “to make personal calls on company telephones,” and told employees that “personal calls w[ould] not be monitored except to the extent necessary to determine whether a particular call [wa]s of a personal or business nature.” Id. (emphasis added).

The employer argued “that, by using [the employer]’s telephones and knowing that monitoring was possible, [the employee] consented to the monitoring” of her personal, non-solicitation call. Id. at 580. Rejecting the employer's argument, the Eleventh Circuit explained that “consent within the meaning of section 2511(2)(d) [of the Act] is not necessarily an all or nothing proposition; it can be limited” to certain types of communications and not others. Id. at 582. Although the employee had “consented to a policy of monitoring sales calls,” she had not consented to a policy of monitoring “personal calls” except to the extent “necessary to determine the nature of the call.” Id. at 581 (emphasis added). The employee's “knowledge of the capability of” the employer to monitor personal calls could not alone “be considered implied consent” to her employer monitoring such calls. Id. Thus, to the extent the employer's “interception went beyond the point necessary to determine the nature of the call, it went beyond the scope of [the employee]’s actual consent.” Id.

This case is far more like Watkins than Griggs-Ryan. The Government does not maintain that Outwest explicitly gave Defendant “unambiguous, unqualified notice that every” conversation Defendant conducted in an Outwest truck “would be monitored.” Compare Griggs-Ryan, 904 F.2d at 119, with Resp. at 7–8 & n.1. To the contrary, Defendant maintains—and the Government does not contest—that Outwest assured Defendant “that the cameras only recorded the very limited seconds surrounding ‘triggering events’ such as a hard break [sic], unusual acceleration, collisions, and vehicle accidents.” Mot. at 2; see also Resp. at 7–8 & n.1. Thus, at most, Defendant impliedly consented to being recorded only when such adverse traffic events occurred. See Watkins, 704 F.2d at 581–82. Outwest “went beyond the scope of [Defendant]’s actual consent” by recording his conversations while such events were not occurring. See id. at 581. Notwithstanding the Government's argument to the contrary, see Resp. at 7 n.1, Defendant's mere “knowledge of the capability of monitoring”—that is, knowledge that the dashboard cameras were potentially capable of recording video and audio even when a triggering event was not occurring—“alone cannot be considered implied consent” to Outwest monitoring him at all times. Watkins, 704 F.2d at 581; see also, e.g., Deal, 980 F.2d at 1157 (adopting Watkins’s holding). Thus, to the extent Outwest's “interception went beyond the point necessary to determine” whether Defendant was driving safely, that interception “went beyond the scope of [Defendant's] actual consent” and thereby violated the Act. Watkins, 704 F.2d at 581.

The Government resists that conclusion by analogizing to the Fifth Circuit's decision in Harrelson, which this Court discussed above. See Resp. at 7 n.1. To reiterate, in Harrelson, an inmate in an adjoining prison cell used a tape recorder to intercept a conversation the defendants conducted in a jail. 754 F.2d at 1169. The Fifth Circuit determined that the conversation did not qualify as an “oral communication” protected by the Act because the defendants did not have “a reasonable expectation of privacy as they spoke to each other in jail.” Id. The court explained in relevant part that

one who expects privacy under the circumstances of prison visiting is, if not actually foolish, exceptionally naive; Harrelson, highly intelligent and no neophyte at prison life, was neither. The evidence indicates as much; the precautions taken to prevent eavesdropping show the Harrelsons to have been aware of the possibility of it. That their precautions were unsuccessful does not mean that the Harrelsons believed themselves to be conversing privately; rather, it means only that they underestimated the technological resources available for eavesdropping at the Harris County Jail. Mistaking the degree of intrusion of which probable eavesdroppers are capable is not at all the same thing as believing there are no eavesdroppers.

Id. at 1169–70 (emphasis added)

“[T]urn[ing the italicized] phrase from Harrelson” above, the Government argues that “mistaking the degree of intrusion of which probable cameras are off or on are capable [sic] is not at all the same thing as believing there are no cameras.” Resp. at 7 n.1. Thus, argues the Government, Defendant's “mistaken belief” as to whether the dashcam was recording when adverse traffic events weren't occurring “does not negate his implied consent to operating the truck and being employed under the camera system.” Id. at 8.

The Court finds Harrelson inapposite with regard to the issue of Defendant's consent. The paraphrased excerpt from Harrelson was not analyzing whether the defendants consented to monitoring under Section 2511(2) of the Act; the Fifth Circuit was instead analyzing whether the defendants’ conversation qualified as an “oral communication” under Section 2510(2). See 754 F.2d at 1169–70. Indeed, the Harrelson court did not apply or even mention the Act's “prior consent” exception in its opinion. See generally id. at 1158–81. Because the Harrelson court was interpreting and applying a different provision with the Act governed by a different legal standard, the Court finds Harrelson unilluminating with respect to whether and how the Act's “prior consent” exception applies to Defendant. In any event, the Court has already concluded above that Harrelson is inapposite insofar as a private employee in an enclosed company vehicle has a greater expectation of privacy than a person in a correctional facility. See supra Section II.B.1.b.

III. CONCLUSION

To summarize, the Defendant's cell phone conversations qualify as “wire communications” under the Federal Wiretap Act, and the in-person conversations he had with his co-defendant qualify as “oral communications.” Because the Government has not shown that Defendant consented to Outwest intercepting those communications, they are inadmissible at trial. See 18 U.S.C. §§ 2515, 2518(10)(a).

The Court therefore GRANTS “Defendant's Motion to Suppress Evidence Under 18 U.S.C. § 2515” (ECF No. 80).

Because the Court has permitted the parties to file the Motion, Response, and Reply under seal, the Court DIRECTS the Clerk of Court to SEAL this Order as well.

So ORDERED and SIGNED this 18th day of January 2023.

ORDER UNSEALING MEMORANDUM OPINION AND ORDER

On January 18, 2023, the Court issued a Memorandum Opinion and Order granting Defendant Ricardo Santiago Ortiz-Lopez's motion to suppress certain evidence. Mem. Op. & Order, ECF No. 98. Because the Memorandum Opinion and Order referenced several sealed docket entries,¹ the Court filed it under seal as well. Id. at 22.

On March 8, 2023, the Court gave the parties “until April 7, 2023 ² to object to unsealing the Memorandum Opinion and Order.” Notice, ECF No. 114, at 2. The Court told the parties that if it did not “receive any objections by that date,” the Court would unseal the document. Id. at 2. Neither party objected before the deadline expired.

The Court therefore UNSEALS its “Sealed Memorandum Opinion and Order Granting Defendant's Motion to Suppress” (ECF No. 98).

The Court further UNSEALS its “Sealed Notice” (ECF No. 114).

So ORDERED and SIGNED this 11th day of April 2023.

FOOTNOTES

2.   References to page numbers in this Memorandum Opinion and Order refer to the page numbers assigned by the Court's CM/ECF system, not the cited document's internal pagination.

3.   The Government does, however, maintain that Defendant nonetheless consented to Outwest recording all of his actions and conversations in the truck because he was aware that the cameras had video- and audio-recording capabilities and nevertheless chose to remain employed as an Outwest driver. See Resp. at 7–8 & n.1. The Court considers the Government's argument below. See infra Section II.B.2.

4.   Mr. Galindo-Torres pleaded guilty to one count of the Indictment on October 5, 2022. See Minute Entry, ECF No. 74.

5.   See ROI at 2 (“ORTIZ-Lopez listened to a voice message on his phone from an unidentified person. The unidentified person said nine would be arriving and asks ORTIZ-Lopez to send the exact address. ORTIZ-Lopez replied to the unidentified person he would send the location and he was at the top and would move to the bottom.”); id. (“ORTIZ-Lopez sent a voice message stating he was with the Cherokee and was parked at the same spot he always parked at.”); id. (“Shortly after, GALINDO-Torres entered the cab of the tractor and told ORTIZ-Lopez, in Spanish, there was an overweight male who was going to crush the boxes and there were two females who asked to ride inside the tractor. ORTIZ-Lopez asked GALINDO-Torres if the females were good looking, and GALINDO-Torres replied, ‘one.’ ORTIZ-Lopez asked GALINDO-Torres what the females said, and GALINDO-Torres replied the females asked, ‘are we really riding in the back, can we ride in the front?’ ”); id. at 2–3 (“ORTIZ-Lopez received a voice message on his phone from an unidentified person [who] asked if the three vehicles that were sent arrived and instructed ORTIZ-Lopez to drop off two in Odessa. ORTIZ-Lopez became agitated at the request to drop off two in Odessa and replied it was difficult to get them down and he was not initially told that. ORTIZ-Lopez also replied only two vehicles arrived and the Cherokee made two trips.”).

6.   18 U.S.C. §§ 2510–23. The Act is also called “Title III,” after “Title III of the Omnibus Crime Control and Safe Streets Act of 1968,” as amended. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 524, 121 S.Ct. 1753, 149 L.Ed.2d 787 (2001).

7.   Defendant emphasizes, however, that he “does not seek to suppress the video [the Government] collected from Outwest capturing only visual video footage from the security cameras on its premises.” Mot. at 10 (emphasis added); see also Reply at 5 (conceding that “the [p]arties agree” that “the video recorder in the truck” could “lawfully record [Defendant]’s visual presence without violating the ․ Act”).

8.   The term “oral communication” does not include communications that the Act defines as “electronic communications.” See 18 U.S.C. § 2510(2), (12). Because neither party argues that Defendant's conversations qualify as “electronic communications,” see generally Mot.; Resp.; Reply, the Court will not discuss that definitional exclusion further.

9.   Perhaps the most notable exception—albeit one that isn't relevant here—is that the Government may obtain judicial authorization to conduct a wiretap if it complies with various statutory prerequisites and conditions. See, e.g., United States v. Carey, 836 F.3d 1092, 1095 (9th Cir. 2016); see also 18 U.S.C. §§ 2516, 2518.

10.   There are two “prior consent” exceptions in 18 U.S.C. § 2511(2)—one for persons “acting under color of law,” and another for persons “not acting under color of law.” Compare 18 U.S.C. § 2511(2)(c) (emphasis added), with id. § 2511(2)(d) (emphasis added). The Government appears to invoke the “under cover of law” exception to argue that Outwest's recording of Defendant's conversations did not violate the Act. See Resp. at 7 (citing 18 U.S.C. § 2511(2)(c)). The Court assumes that's a typo; neither party asserts that Outwest made the recordings at the Government's direction, rather than for its own private purposes of monitoring its employees for compliance with company policy and applicable laws. See, e.g., United States v. Christensen, No. 17-cr-20037, 2019 WL 183823, at *2 (C.D. Ill. Jan. 14, 2019) (“A person acts ‘under color of law’ for the purposes of [the Act] when they act under the government's direction when making the recording.” (cleaned up)); Vasko v. Twyford, No. 16-197, 2016 WL 3522038, at *4 (W.D. Pa. June 28, 2016) (explaining that, at least for the purposes of the Act, the phrase “under color of law” describes “situations in which either the government itself records a conversation or directs an individual, such as a cooperating witness or informant, to do so during a governmental investigation” (cleaned up)). The Court therefore analyzes below whether Outwest obtained Defendant's prior consent under 18 U.S.C. § 2511(2)(d)’s “not acting under color of law” exception, not (c)’s “under color of law” exception. See infra Section II.B.2.

11.   An “aggrieved person” is any “person who was a party to any intercepted wire, oral, or electronic communication or a person against whom the interception was directed.” 18 U.S.C. § 2510(11).

12.   See also, e.g., Bartnicki, 532 U.S. at 524, 121 S.Ct. 1753 (“By reason of [various statutory amendments in 1986 and 1994,] Title III now applies to the interception of conversations over both cellular and cordless phones.”); United States v. Fry, No. CR-07-47, 2007 WL 9697834, at *1 (E.D. Okla. Sept. 4, 2007) (“[T]he addition of ‘switching station’ as part of the definition of wire communication was meant to incorporate cellular communications.”); Shubert v. Metrophone Inc., 898 F.2d 401, 405 (3d Cir. 1990) (“[C]ellular communications—whether they are between two cellular telephones or between a cellular telephone and a ‘land line’ telephone—are included in the definition of ‘wire communications’ and are covered by the [Act].” (cleaned up)).

13.   It is a closer question whether Outwest “intercept[ed]” Defendant's wire communications as 18 U.S.C. § 2510(4) defines that term. “A wire communication is only ‘intercepted’ within the meaning of the [Act] when someone records what was transmitted over the wire.” Reynolds v. City & County of San Francisco, No. 09-00301, 2009 WL 3569288, at *4 (N.D. Cal. Oct. 30, 2009) (cleaned up). A person who records only “one side of a telephone conversation ․ has not intercepted a wire communication merely because the person was speaking into a telephone at the time of the interception.” Id. (cleaned up). In this case, however, Outwest's dashcam captured both sides of Defendant's conversations. See, e.g., ROI at 2 (“ORTIZ-Lopez listened to a voice message on his phone from an unidentified person. The unidentified person said nine would be arriving and asks ORTIZ-Lopez to send the exact address. ORTIZ-Lopez replied to the unidentified person ․” (emphasis added)). Because the Government challenges only whether Defendant's cell phone conversations qualify as “wire communications” under 18 U.S.C. § 2510(1), and not whether Outwest's recording of those conversations qualifies as an “intercept[ion]” under 18 U.S.C. § 2510(4), see generally Resp., the Court need not answer that question.

14.   For that reason, the Court need not consider the Government's argument that Defendant had no reasonable expectation of privacy in his cell phone communications because his co-defendant was seated next to him and was able to hear the conversation. See Resp. at 6–7.

15.   See Kee v. City of Rowlett, 247 F.3d 206, 211 & n.8 (5th Cir. 2001) (“[T]he Fourth Amendment determination of a reasonable expectation of privacy and the federal wiretap analysis overlap ․ The legislative history of [Section 2510(2)] demonstrates that Congress intended th[e] definition of oral communication to parallel the reasonable expectation of privacy test set out in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).”); Cressman v. Ellis, 77 F. App'x 744, 745 (5th Cir. 2003) (“Fourth Amendment analysis also guides the inquiry as to whether ․ oral communications are transmitted under circumstances justifying an expectation of privacy [within the meaning of Section 2510(2) of the Act].”).Defendant argues that “[b]ecause the Fourth Amendment and the Act differ greatly in scope and purpose, it would be inappropriate to treat the judicially-created Fourth Amendment exclusionary rule as impliedly setting the boundary for the broader, statutorily-created exclusionary rule of § 2515” of the Act. Mot. at 7. To the limited extent that Defendant's argument is inconsistent with the above-cited Fifth Circuit cases holding that the Act's “reasonable expectation of privacy” test mirrors the standard courts apply in the Fourth Amendment context, the Court rejects his argument and follows Fifth Circuit precedent.

16.   The Fifth Circuit first articulated these factors in the context of “evaluat[ing] the subjective expectation of privacy in oral communications in publicly accessible spaces,” such as the “outdoor grave site memorial service” at issue in Kee. See Kee, 247 F.3d at 208, 215 (emphasis added). In an unpublished opinion, however, the Fifth Circuit indicated that these factors also apply to communications in spaces that may not be accessible to the general public, such as an employee's workplace. See Cressman, 77 F. App'x at 745–46 (applying the six Kee factors in a case challenging the alleged “video and audio taping of the Plaintiffs in the squad room of the offices of the [Texas State Technical College] police department”). This Court thus infers that the Kee factors apply equally to Defendant's “workspace”—i.e., his truck.

17.   1997 WL 535872, at *8 (“The rear seat microphone was located at the top of the rear seat and was not hidden ․ [One of the plaintiffs] was able to see the microphone from outside the car.”); id. (“[W]hen the system was recording, the control head, ‘like a VCR panel,’ would be lit. The control panel is located near the driver. It would be fairly obvious to someone driving the car that the system was operating.” (internal citations omitted)).

18.   Compare Gross, 1997 WL 535872, at *17 (holding that police officers did not have “a reasonable expectation of privacy in their on-duty conversations in the[ir] police cars”), with, e.g., United States v. McKinnon, 985 F.2d 525, 526 (11th Cir. 1993) (holding that a suspected offender “seated in a police car does not have a reasonable expectation of privacy under [the Act]”), and Clark, 22 F.3d at 801–02 (similar), and United States v. Sallee, No. 91 CR 20006-19, 1991 WL 352613, at *2 (N.D. Ill. Oct. 24, 1991) (similar).

19.   For instance, the exhibits the parties attached to their filings do not allow the Court to assess “the volume of the communication[s] or conversation[s]” that Defendant seeks to suppress. Compare Kee, 247 F.3d at 213, with ROI at 2–3 (lacking any such information).

20.   Compare ROI at 2–3, with, e.g., United States v. Florida, No. 14-cr-00582, 2016 WL 3999593, at *5–6 (N.D. Cal. July 26, 2016) (applying the Kee factors and finding that the defendants lacked a reasonable expectation of privacy in part because they “did not enter an enclosed space” to conduct their communications but instead “stayed in an open, public area”). See also Kee, 247 F.3d at 213–14 (admonishing courts to consider “the proximity or potential of other individuals to overhear the conversation” and “the affirmative actions taken by the speakers to shield their privacy”).

21.   See Resp. at 7–8 (“The Defendant contends that he did not know that the Cameras were running but thought that they would only run when ‘triggering’ events occurred. However, the Defendant consented to application and use of the cameras by accepting employment, and his continued employment with the company. His mistaken belief as to their running or not does not negate his implied consent to operating the truck and being employed under the camera system. Thus, he consented to monitoring․” (internal citations omitted)); id. at 7 n.1 (“The Defendant contends that he did not know that the Cameras were running but thought that they would only run when ‘triggering’ events occurred. However, Outwest Express Drivers are aware of the dashboard camera video and audio recording capabilities and made aware at new driver orientation ․ [M]istaking the degree of intrusion of which probable cameras are off or on are capable [sic] is not at all the same thing as believing there are no cameras.”).

22.   See also, e.g., Berry v. Funk, 146 F.3d 1003, 1011 (D.C. Cir. 1998) (“[I]t has been uniformly held that implicit consent will satisfy.”); United States v. Willoughby, 860 F.2d 15, 19 (2d Cir. 1988) (“The prohibition against interception does not apply ․ when ‘one of the parties to the communication has given prior consent to such interception.’ Such consent may be express or implied.” (internal citations omitted)); Deal v. Spears, 980 F.2d 1153, 1157 (8th Cir. 1992) (“[A]ctual consent [under the Act] may be implied from the circumstances.”).In Campiti v. Walonis, the First Circuit stated that “there is no implied consent exemption under the [Act].” 611 F.2d 387, 396 (1st Cir. 1979). Based on that language, Defendant appears to argue that consent under the Act must be explicit rather than implied. See Reply at 6 & n.31 (“The Act contains no language permitting one to infer ‘implied consent.’ ”). Because the weight of authority holds that one may indeed impliedly consent to monitoring under the Act, the Court rejects Defendant's suggestion that only express consent triggers the exception. Indeed, not even the First Circuit—which decided Campiti—interprets Campiti to require explicit consent. See Griggs-Ryan, 904 F.2d at 116 (“[W]e ․ have held that [the Act] affords safe harbor not only for persons who intercept calls with the explicit consent of a conversant but also for those who do so after receiving implied consent.” (citing Campiti, 611 F.2d at 393)).

1.   Those docket entries will remain sealed for the time being.

2.   Because the courthouse was closed on April 7, 2023, the Court waited until April 10, 2023 to see whether any party objected. See Fed. R. Crim. P. 45(a)(3) (“[I]f the clerk's office is inaccessible ․ on the last day for filing ․ then the time for filing is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday.”).

DAVID C. GUADERRAMA, UNITED STATES DISTRICT JUDGE