Counsel

*1 THIS CAUSE is before the Court on Defendant Donald Mitchell's Motion to Suppress Evidence (Doc. 52; First Motion), filed on February 20, 2012, Defendant's Motion to Suppress Evidence (Doc. 55; Second Motion), filed on February 22, 2012, and Defendant's Authorized Third Motion to Suppress (Doc. 189; Third Motion), filed on November 28, 2012. The Government filed responses in opposition to the First and Second Motions on March 9, 2012, see United States' Response In Opposition to Defendant's First Motion to Suppress Evidence (Doc. 66; First Response); United States' Response in Opposition to Defendant's Second Motion to Suppress Evidence (Doc. 67; Second Response), and to the Third Motion on December 7, 2012, see United States' Response in Opposition to Defendant's Third Motion to Suppress Evidence (Doc. 191; Third Response). Each of the Motions was referred to the Honorable Thomas E. Morris, United States Magistrate Judge, to conduct an evidentiary hearing and recommend an appropriate resolution.

With respect to the First and Second Motions, the Magistrate Judge held evidentiary hearings on May 31, 2012, and June 20, 2012, seeMinute Entry (Doc. 112; May Hearing); Minute Entry (Doc. 129; June Hearing), and on August 21, 2012, entered a Report and Recommendation (Doc. 144; First Report) recommending that the Motions be denied. See First Report at 31–32. Thereafter, Defendant filed an objection to the Report, see Objection to Report and Recommendation of Magistrate (Doc. 173; First Objection), and the Government responded, see United States' Response In Opposition to Defendant's Objections to the Report and Recommendation (Doc. 177; Response to First Objection). As to the Third Motion, the Magistrate Judge held evidentiary hearings on December 19, 2012, and January 9, 2013, see Minute Entry (Doc. 194; December Hearing); Minute Entry (Doc. 207; January Hearing), and on February 22, 2013, entered a Report and Recommendation (Doc. 218; Second Report) recommending that the Third Motion be denied. See Second Report at 15. On March 11, 2013, Defendant filed an Objection to Report and Recommendation of Magistrate (Doc. 224; Second Objection). Although given adequate time to do so, the government has not filed any response to Defendant's Second Objection. Accordingly, this matter is ripe for review.

I. Standard of Review

The Court reviews a magistrate judge's report and recommendation in accordance with the requirements of Rule 59, Federal Rules of Criminal Procedure (Rule(s)) and 28 U.S.C. § 636(b)(1). The Court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see also Rule 59(b)(3). “[I]n determining whether to accept, reject, or modify the magistrate's report and recommendations, the district court has the duty to conduct a careful and complete review.” Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir.1982) (quoting Nettles v. Wainwright, 677 F.2d 404, 408 (5th Cir. Unit B 1982)[1]). Additionally, pursuant to Rule 59 and § 636(b)(1), where a party timely objects[2] to the magistrate judge's report and recommendation, “[a] judge of 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); see also Rule 59(b)(3); Thomas v. Arn, 474 U.S. 140, 149–50, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Nevertheless, while de novo review of a magistrate judge's recommendation is required only where an objection is made[3], the Court always retains the authority to review such a recommendation in the exercise of its discretion. See Rule 59 advisory committee notes (2005) (citing Thomas, 474 U.S. at 154; Mathews v. Weber, 423 U.S. 261, 270–71, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976)).

II. First Motion

*2 On December 28, 2010, Dave Bisplinghoff, at the time a detective with the Jacksonville Sheriff's Office (JSO), arrested Defendant pursuant to two state court arrest warrants. Transcript of the May Hrg. (Doc. 127; Tr. I) at 9–14. One of the arrest warrants related to the theft from a Tire Kingdom of two tires installed on a Maserati. See May Hrg., Gov't Ex. 5; Tr. I at 12. Following Defendant's arrest, an Apple iPhone, among other things, was taken from his person and placed in the jail property room. Tr. I at 16–17. The next day, December 29, 2010, Bisplinghoff seized the silver Maserati that Defendant was driving immediately prior to his arrest from the public street where it remained parked following the arrest. Tr. I at 20–21. Bisplinghoff impounded the vehicle and, in a subsequent inventory search, found two Apple iPads, as well as other items. Tr. I at 24–25. After obtaining consent from Amy Newby, a local attorney who was associated with Mitchell, law enforcement officers later searched the contents of the iPhone and the two iPads. Tr. I at 26–27, 105–106, 114. Defendant challenges both the search and seizure of the Maserati, as well as the subsequent searches of the iPhone and iPads. See generally First Motion; see also Tr. I at 235.[4]

A. Search and Seizure of the Vehicle

1. Summary of the Arguments

In the First Report, Judge Morris determines that Bisplinghoff properly impounded the Maserati according to JSO standard procedures in order to preserve evidence of a crime, and that, following the impoundment, Bisplinghoff conducted a valid inventory search in accordance with standard protocol. See First Report at 16–19. Defendant objects to this recommended finding based on his contention that the seizure of Defendant's vehicle was “clearly pretextual.” See First Objection at 11. Specifically, Defendant notes that Bisplinghoff did not initially tow the vehicle at the time of his arrest on December 28, 2010. Id. Rather, Bisplinghoff impounded the vehicle only after officers at the detention facility where Defendant was incarcerated informed Bisplinghoff that Defendant was concerned about the vehicle and its contents, information they obtained by monitoring Defendant's phone calls.[5] Id. This, Defendant argues, shows that the vehicle was impounded for investigatory purposes. In addition, Defendant maintains that the proffered reason for the tow, the stolen tires, is pretextual because Detective Bisplinghoff made no attempt to “inventory, document, [or] memorialize the tires” on the day he towed the vehicle, and no one at the impoundment lot was aware of the reason the vehicle was towed. First Objection at 11. The government responds that Bisplinghoff had the authority to impound the vehicle because the “Maserati represented evidence of the grand theft.” Response to First Objection at 6. Moreover, the government maintains that Bisplinghoff inventoried the vehicle in accordance with the JSO's standard procedures. Id.Therefore, the government contends that the inventory search of the vehicle was proper. Id.

2. Analysis

*3 The Fourth Amendment protects individuals against “unreasonable searches and seizures.” U.S. Const. amend. IV. “Ordinarily, the seizure of personal property is per se unreasonable unless the seizure is pursuant to a warrant issued upon probable cause.” United States v. Virden, 488 F.3d 1317, 1321 (11th Cir.2007). However, courts recognize “ ‘a few specifically established and well-delineated exceptions' ” to the warrant requirement. United States v. Johnson, 307 F. App'x 372, 374 (11th Cir.2009) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)). One exception, known as the “automobile exception,” “permits a warrantless search or seizure ‘if (1) there is probable cause to believe that the vehicle contains contraband or other evidence which is subject to seizure under law, and (2) exigent circumstances necessitate a search or seizure.’ ” Id. (quoting United States v. Alexander, 835 F.2d 1406, 1408–09 (11th Cir.1988)). Notably, this exception also applies when the automobile itself, rather than its contents, constitutes contraband which is subject to seizure under the law. See Florida v. White, 526 U.S. 559, 564–65, 119 S.Ct. 1555, 143 L.Ed.2d 748 (1999) (reasoning that the “need to seize readily movable contraband before it is spirited away,” which underlies the justification for the automobile exception in the context of a search, “is equally weighty when the automobile, as opposed to its contents, is the contraband that the police seek to secure”); United States v. Cooper, 949 F.2d 737, 744–48 (5th Cir.1991) ( “[P]olice may seize a car from a public place without a warrant when they have probable cause to believe that the car itself is an instrument or evidence of crime.”); United States v. Perkins, No. 12–290, 2013 WL 951586, at *2 (D.Minn. Jan.11, 2013)(“The automobile exception enables an officer to seize an automobile without a warrant if they have probable cause to believe the vehicle constitutes or contains evidence of criminal activity.” (internal quotation omitted)). As to the second prong of the exception, the Eleventh Circuit instructs that “ ‘the requirement of exigent circumstances is satisfied by the ready mobility inherent in all automobiles that reasonably appear to be capable of functioning.’ ” United States v. Watts, 329 F.3d 1282, 1286 (11th Cir.2003) (quoting United States v. Nixon,918 F.2d 895, 903 (11th Cir.1990)). Indeed, in Maryland v. Dyson, 527 U.S. 465, 119 S.Ct. 2013, 144 L.Ed.2d 442 (1999) the Supreme Court emphasized that “under our established precedent, the ‘automobile exception’ has no separate exigency requirement.” Dyson, 527 U.S. at 466. As there is no question that the vehicle at issue here was readily mobile, the Court considers whether Bisplinghoff had probable cause to believe that the vehicle contained, or constituted, evidence of criminal activity.

“Probable cause exists when there is ‘a fair probability that contraband or evidence of a crime will be found.’ ” Virden, 488 F.3d at 1322(quoting United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989)). Here, at the time of the seizure, Bisplinghoff knew that a warrant for Defendant's arrest had issued for the theft of two tires that were installed on a Maserati. Tr. I at 11–13. On December 28, 2010, the day before he seized the vehicle, Bisplinghoff saw Defendant driving a Maserati. Tr. I at 12–13. The next day, prior to towing the vehicle, Bisplinghoff matched the Vehicle Identification Number (VIN) of that Maserati with the VIN number of the Maserati identified in the police report pertaining to the stolen tires. Tr. I at 53. In addition, Bisplinghoff observed that two of the tires on the Maserati were the same make as the two tires stolen from Tire Kingdom. Tr. I at 18–19, 53–56.

*4 Based on the foregoing, Detective Bisplinghoff had probable cause to believe that the Maserati and its tires constituted evidence of the tire theft. See United States v. Forrest, 620 F.2d 446, 455 (5th Cir.1980).[6] As such, Detective Bisplinghoff had the authority to seize the car, without a warrant, from the public street where it was parked. See id. at 455 (“Once the agents had probable cause to believe these crimes had been committed, seizure of the vehicles without a warrant was permissible.”); see also White, 526 U.S. at 561, 564–66 (holding that the Fourth Amendment does not require “the police to obtain a warrant before seizing an automobile from a public place when they have probable cause to believe that it is forfeitable contraband”); United States v. Noster, 590 F.3d 624, 630–31 (9th Cir.2009) (finding that because officers had probable cause to believe the vehicle was stolen, the warrantless seizure of the truck was reasonable under the Fourth Amendment) (collecting cases); United States v. Patterson, 150 F.3d 382, 385–87 (4th Cir.1998) (concluding that the warrantless seizure of a car, parked in public, was authorized where police had probable cause to believe the car was an instrumentality or evidence of the crime); Cooper, 949 F.2d at 744–48 (“[P]olice may seize a car from a public place without a warrant when they have probable cause to believe that the car itself is an instrument or evidence of crime.”). Notably, Detective Bisplinghoff's decision to impound the vehicle was also authorized under the JSO's policy and procedures for the towing and storage of vehicles, as well as Jacksonville Municipal Ordinance § 804.1101, which both provide that a vehicle may be towed if it is subject to being held as evidence. See May Hrg., Gov't Ex. 8 at 2; id., Gov't Ex. 18 at 1.

In the First Objection, Defendant argues that the seizure of the vehicle was unlawful because Bisplinghoff's stated reasons were a pretext for an investigatory motive. First Objection at 11–12. Specifically, Defendant relies on the fact that Bisplinghoff did not seize the vehicle immediately upon arresting Defendant, but rather towed the vehicle the following day after learning of Defendant's concern for the vehicle.[7] Id. Although the Court is skeptical that such evidence is suggestive of an improper investigatory motive, even if it was, Defendant's argument is still unavailing. Because Bisplinghoff had probable cause to seize the vehicle when he did so, his subjective intent has no role in the Fourth Amendment analysis. Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). To the extent some Supreme Court cases suggested that the police must act in good faith or without pretext when conducting searches and seizures,[8] the Court in Whren explained that “only an undiscerning reader would regard these cases as endorsing the principle that ulterior motives can invalidate police conduct that is justifiable on the basis of probable cause to believe that a violation of law has occurred.” Whren, 517 U.S. at 811.

*5 In contrast, when police impound a vehicle pursuant to their community care-taking function, probable cause is not required, and as such “the decision to impound a vehicle must be made in good faith, based upon standard criteria and not solely based upon suspicion of evidence of criminal activity.” See United States v. Glover, 441 F. App'x 748, 751 (11 th Cir.2011) (internal quotation omitted); see also Colorado v. Bertine, 479 U.S. 367, 372–73, 375–76, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987); South Dakota v. Opperman, 428 U.S. 364, 368–69, 375–76, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976); Whren, 517 U.S. at 811–12. Defendant's reliance on this principle is unavailing here because community care-taking was not the basis for the impoundment. Rather, Bisplinghoff had probable cause to believe that the Maserati constituted evidence of a crime, and therefore, his subjective motivations are irrelevant. Whren, 517 U.S. at 811.

Having found that the vehicle was legitimately seized, Detective Bisplinghoff's subsequent inventory search, conducted in accordance with established procedures, was permissible. See Cooper, 949 F.2d at 748; United States v. Crawford, 294 F. App'x 466, 472 (11th Cir.2008) (“[A] warrantless inventory search of a legally impounded car conducted pursuant to an established procedure is valid under the Fourth Amendment.”) (citing Opperman, 428 U.S. at 372–73). Notably, Defendant does not challenge the manner or scope of the inventory search, Tr. I at 235, and the uncontradicted evidence shows that Detective Bisplinghoff conducted the inventory search of the vehicle in accordance with the general impoundment procedures prescribed by the Operational Order of the Jacksonville Sheriff's Office. See Tr. I at 22–26; see also May Hrg., Gov't Ex. 8 at 2, 5; id., Gov't Ex. 10. To the extent Defendant argues that Detective Bisplinghoff suspected that the vehicle contained other evidence of a crime, such suspicions do not invalidate an otherwise lawful inventory search. See United States v. Foskey, 455 F. App'x 884, 889 (11th Cir.2012); Crawford, 294 F. App'x at 473 (“Because [the officer] complied with the vehicle-impound policy and reasonably exercised his discretion under that policy to impound the car, the fact that [the officer] suspected he might find evidence of criminal activity did not convert the inventory search into an investigatory one.”); United States v. Grossman, 233 F. App'x 963, 968 (11th Cir.2007) (per curiam) (“The fact that the agents may have expected to find incriminating evidence in [the defendant's] car does not affect the validity of this search.”); United States v. Staller, 616 F.2d 1284, 1290 (5th Cir.1980). Accordingly, the Court finds that Detective Bisplinghoff's warrantless seizure and subsequent inventory search of the Maserati did not violate the Fourth Amendment. See United States v. Khoury, 901 F.2d 948, 958–59 (11th Cir.1990) (“The inventory search, when conducted according to standardized routine in furtherance of the legitimate goals of the inventory, is an exception to the warrant requirement.”).

B. Search of the iPhone and iPads

1. Summary of the Arguments

*6 Defendant next seeks to suppress the evidence obtained from the government's warrantless search of the iPhone, found on Defendant's person at the time of his arrest, and the two iPads, located during the inventory search of the vehicle.[9] See First Motion at 1; Tr. I at 237. In the First Report, the Magistrate Judge determined that Newby had actual or apparent authority to consent to the search of the iPhone and iPads, and that she knowingly and voluntarily consented to the searches of those items.[10] See First Report at 30–31. Defendant objects to this finding and argues that “simply because Newby's name is associated” with the items is insufficient to give her actual or apparent authority to consent to their search. See First Objection at 12. In addition, Defendant contends that Newby's “detention in handcuffs, impending arrest on an unrelated but indirectly linked legal matter, and her own interrelated imminent loss of her bar license all combined to make the consent invalid.” Id. at 13. Defendant maintains that these facts, combined with the fact that Newby was cooperating against an individual she purportedly represented, render her consent involuntary. Id. In its Response to the First Objection, the government argues that Newby's consent to the government's search of the iPhone was voluntary, as evidenced by the signed consent form. See Response to First Objection at 7. In addition, the government maintains that the two iPads were searched pursuant to both Newby's and Mitchell's consent. Id.

2. Analysis

In the Report, the Magistrate Judge first addresses the threshold question of whether Defendant has “a constitutionally protected reasonable expectation of privacy under the circumstances” in the contents of the electronic devices. See United States v. Siau, 281 F. App'x 949, 950 (11th Cir.2008) (internal quotation omitted); First Report at 25–28. Notably, the government does not contend that Defendant lacks a reasonable expectation of privacy in the objects. See First Response at 3–4, 7; Response to First Objection at 6–7. Although the exact nature and extent of an individual's privacy interest in cell phones and electronic devices may be unclear, a number of courts have recognized that “individuals retain a reasonable expectation of privacy in the information stored in their cell phones.” See United States v. Cole, No. 1:09–CR–0412–ODE–RGV, 2010 WL 3210963, at *16 (N.D.Ga. Aug.11, 2010) (citing United States v. Finley, 477 F.3d 250, 259 (5th Cir.2007)); United States v. Quintana, 594 F.Supp.2d 1291, 1299 (M.D.Fla.2009); United States v. Gomez, 807 F.Supp.2d 1134, 1140–41 (S.D.Fla.2011); United States v. McGhee, No. 8:09CR31, 2009 WL 2424104, at *1, *3 (D.Neb. July 21, 2009). Here, in the absence of any argument to the contrary, the Court will accept that Defendant has a constitutionally protected expectation of privacy in the iPhone and iPads at issue.

*7 The Court turns next to the issue of whether the warrantless searches of the iPhone and iPads were constitutional. “One of the well-established exceptions to the probable cause and warrant requirements is a search which is conducted pursuant to voluntary consent.” See United States v. Garcia, 890 F.2d 355, 360 (11th Cir.1989). Valid consent is established where the government demonstrates that the defendant voluntarily consented, “or in the absence of consent by the defendant, [shows] ‘that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.’ ” See United States v. Marchante, No. 11–11906, 2013 WL 1223477, at *2 (11th Cir. Mar.26, 2013) (quoting United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974)); United States v. Zarabozo, 378 F. App'x 939, 941 (11th Cir.2010) (“To validate a warrantless search, consent must be voluntarily given by a person with the authority to give it or by a person who reasonably appears to have that authority.”). “Even if the third party lacks actual authority to consent to the search, if an officer has an objectively reasonable, good-faith belief that the consent is valid, there is no Fourth Amendment violation.” See Zarabozo, 378 F. App'x at 941. “As with other factual determinations bearing upon search and seizure,” the determination of consent to search “ ‘must be judged against an objective standard: would the facts available to the officer at the moment ... warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?’ ” See United States v. Sanford, No. 3:06–cr–199–MEF, 2009 WL 2197373, at *4 (M.D.Ala. July 23, 2009) (quoting United States v. Mercer, 541 F.3d 1070, 1074 (11th Cir.2008)).

In the Report, Judge Morris finds that the searches of the iPhone and iPads were authorized by the consent of Amy Newby. See First Report at 28–31. After due consideration, this Court agrees. Defendant's objection that Newby did not have apparent authority to consent to the search of the items is not supported by the record. Specifically, prior to the search Newby told Lawrence Lomonaco, a special agent with the United States Secret Service, that she purchased the iPhone and iPads, and that she owned them. Tr. I at 103, 106. In addition, Lomonaco had previously obtained cell phone records from AT & T which listed the owner of the iPhone as Newby, with her address, and indicated that Newby paid the cell phone bill. Tr. I at 129. Although the iPhone was seized from Defendant's person, Lomonaco testified that Newby informed him that she allowed Defendant to use the phone. Tr. I at 130. It also appears that the iPhone was not password protected or locked in any way. May Hrg., Gov't Ex. 4A. In light of the foregoing, Lomonaco reasonably concluded that Newby had the authority to consent to the search of the iPhone and iPads.[11] See Sanford, 2009 WL 2197373, at *3–4; United States v. Mathis, 96 F.3d 1577, 1584 (11th Cir.1996) (finding that the defendant's mother had authority to consent to the search of the detached garage where the mother told the officer that the garage was hers); United States v. Guzman, 507 F.3d 681, 687 (8th Cir.2007) (“Hare, as the owner of the truck, had authority to consent to its search. An owner of a vehicle may consent to its search even if another person is driving the vehicle.”); United States v. Perez,246 F. App'x 140, 145–46 (3d Cir.2007) (finding that the legal owner of the car had authority to consent to search of the car and its contents, despite the evidence that the defendant drove the car more frequently than the owner did).

*8 In addition, Defendant's contention that Newby's consent was not voluntary is entirely without merit. For consent to be voluntary, it cannot “ ‘be coerced, by explicit or implicit means, by implied threat or covert force.’ ” See United States v. Hall, No. 12–11915, 2012 WL 6050614, at *1 (11th Cir. Dec.6, 2012) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 228, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). The question of whether a consent to search was voluntary, as opposed to the product of duress or coercion, is a “question of fact to be determined from the totality of all the circumstances.” Schneckloth, 412 U.S. at 228. The Eleventh Circuit instructs that, although none are dispositive, the relevant factors in determining the voluntariness of consent include:

(1) the voluntariness of the defendant's custodial status; (2) the presence of coercive police procedure; (3) the extent and level of the defendant's cooperation with police; (4) the defendant's awareness of his right to refuse to consent to the search; (5) the defendant's education and intelligence; and (6) the defendant's belief that no incriminating evidence will be found.

See United States v. Holmes, 270 F. App'x 767, 768 (11th Cir.2008). It is the government's burden to prove that consent was voluntary. SeeUnited States v. Rios, 443 F. App'x 433, 437 (11th Cir.2011).

In this case, Newby has a law degree, and had been licensed to practice law in the state of Florida since 2003. See Transcript of June Hrg. (Doc. 137; Tr. II) at 10–11. On January 4, 2011, the date Newby gave oral consent to the search, she agreed to go to the U.S. Attorney's Office for an interview, demonstrating a desire to cooperate with the investigators, at least to some degree. See Tr. I at 36–38, 120–21. Although at some point earlier that day a different agency handcuffed Newby in connection with an unrelated investigation undertaken by the Florida Bar, the handcuffs were removed prior to the time when Newby gave consent. See Tr. I at 150–51 Moreover, the record contains no evidence that the officers to whom Newby gave consent threatened force or violence against Newby, or that they were in any way verbally abusive. See Tr. I at 150, 223; see also United States v. Telcy, 362 F. App'x 83, 86 (11th Cir.2010) (finding consent was voluntary where defendant was in handcuffs and in custody, but where officers did not brandish weapons, threaten defendant, lie to him, or “otherwise unreasonably pressure him into acceding to their request”). Moreover, Newby was well aware of her right to refuse consent given that on January 5, 2011, she signed a written consent form which expressly advised her of her right to refuse consent. See May Hrg., Gov't Ex. 13.

Defendant argues that Newby's consent was not voluntary because she was concerned about her impending arrest on an unrelated legal matter and the loss of her bar license, as well as the “dilemma” of cooperating against a client she represented. See First Objection at 13. However, the pressure Newby may have felt to cooperate simply because she was the target of multiple investigations and in a precarious position, absent any improper coercion by the officers, is not sufficient. See Garcia, 890 F.2d at 362 (finding voluntary consent where defendant was so nervous during his arrest that he soiled his undergarments because “there is simply no evidence that these officers employed any tactics that would augment the degree of coercion that is inherent in any arrest”); see also United States v. Smith, 199 F. App'x 759, 763 (11 th Cir.2006) (“The fact of custody does not necessarily vitiate the defendant's valid consent to a search. Because in any arrest there is present a degree of duress, ... the question is whether the officers used coercive tactics or took unlawful advantage of the arrest situation to obtain consent.” (internal quotations, citations and alterations omitted)). Defendant presents no evidence that Newby's consent was “merely acquiescence to a claim of lawful authority,” extracted with threats or promises by the officers involved, or a result of extraordinary or unlawful police conduct. See Garcia, 890 F.2d at 361–62. Thus, the Court finds that Newby's consent to the search of the iPhone and iPads was voluntary.[12] See id. (finding voluntary consent where fourteen agents were in and around defendant's home, he was arrested and handcuffed, and the agents refused his initial offer of conditional consent); United States v. Espinosa–Orlando, 704 F.2d 507, 512–13 (11th Cir.1983) (concluding that defendant's consent was voluntary after four agents arrested defendant at gunpoint and ordered him to lie on the grass and then asked for his consent after all but one of the agents had reholstered their weapons); United States v. Hidalgo, 7 F.3d 1566, 1571 (11th Cir.1993) (holding that consent was voluntary where defendant “was arrested by SWAT team members who broke into his home in the early morning, woke him, and forced him to the ground at gunpoint ...”). In light of the foregoing, the Court concludes that Defendant's First Objection is due to be overruled. As such, the Court will accept the Magistrate Judge's recommended resolution and deny the First Motion.

III. Second Motion

*9 While incarcerated, Defendant called Newby from the Jail telephone system on December 31, 2010, and January 1, 2011. See June Hrg., Gov't Exs. 1–2. During that time, Newby was representing Defendant in at least one state court criminal matter. See Tr. II at 11–12. Outgoing calls placed by inmates from the Jail are routinely monitored. Tr. II at 103. Participants in a call are warned of this fact by way of an automated message that plays at the beginning of every call. See Tr. II at 89. Prior to Defendant's telephone calls to Newby, both Defendant and Newby heard the automated message which stated, among other things, that “[a]ll inmate telephone calls are recorded.” See June Hrg., Gov't Exs. 1–2; see also Notice of Filing (Doc. 134), Exs. 1–2. Communications between attorneys and their incarcerated clients can be exempt from recording if the attorney requests to have his or her telephone number taken off the recording list. See Tr. II at 103. When an attorney makes this request, the inmate phone provider, Global Tel*Link, puts the phone number into a computer system database where it remains permanently. Id. at 105. Inmates are informed of this policy by way of the Inmate Handbook, provided to inmates when they complete the booking process, which states in relevant part that: “Any telephone calls made from any Department of Corrections facility will be recorded and may be monitored, with the exception of telephone numbers identified as privileged (i.e., Attorneys who request that calls to their numbers not be monitored or recorded, Public Defender, and Federal Public Defenders Office).” See Dec. Hrg., Def. Ex. 1. Notably, the Jail has no policy or procedure in place that notifies attorneys of the ability to have their phone numbers exempted from the monitoring or recording. See Transcript of December Hrg. (Doc. 200; Tr. III) at 69–70.

A. Summary of the Arguments

In the Second Motion, Defendant requests that the Court suppress all records obtained from the law office of Amy Newby, as well as all communications “made by the Defendant to Amy Newby, Attorney at Law, during the course of representation of the Defendant,” and any evidence obtained subsequent to the disclosure of the foregoing evidence as “fruits of the poisonous tree.” See Second Motion at 1. Magistrate Judge Morris recommends that the Court deny the Second Motion because the government did not obtain any records from Amy Newby's law office, and because the challenged communications are not protected by the attorney-client privilege. See First Report at 19–25. In his First Objection, Defendant argues that “JSO's actions in recording and monitoring his attorney-client conversations violated the Fourth Amendment and Federal Wiretapping Act, 18 U.S.C. § 2510, et seq.” See First Objection at 13.[13] In its Response, the Government contends that Defendant had no reasonable expectation of privacy in his inmate calls to Newby, and further that those communications are subject to the crime-fraud exception to the attorney-client privilege. See Response to First Objection at 8–9.

A. Analysis

*10 Defendant's argument with respect to the recorded jail calls between Defendant and Newby presents two issues: whether the calls were recorded in violation of Defendant's Fourth Amendment rights or the Federal Wiretapping Act, 18 U.S.C. § 2510, et seq. (the Wiretap Act), and, if not, whether the calls are nonetheless protected by the attorney-client privilege. After due consideration, the Court agrees with the Magistrate Judge that the answer to both of these questions is no. See First Report at 19–25. Therefore, the Court will overrule Defendant's Objection on this issue and deny the Second Motion to Suppress.

“[T]he Fourth Amendment governs not only the seizure of tangible items, but extends as well to the recording of oral statements....” Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). However, “[a] telephone call can be monitored and recorded without violating the Fourth Amendment so long as one participant in the call consents to the monitoring.” See United States v. Novak, 531 F.3d 99, 101 (1st Cir.2008) (O'Connor, J., sitting by designation) (citing United States v. White, 401 U.S. 745, 752, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971)(plurality opinion)). Similarly, the Wiretap Act “forbids the willful interception of wire communications, including telephone conversations, without prior judicial authorization.” United States v. Noriega, 764 F.Supp. 1480, 1490 (S.D.Fla.1991). Notably, the statute provides that “[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, hearing, or other proceeding before any court ... if the disclosure of that information would be in violation of this chapter.” See 18 U.S.C. § 2515. However, the statute includes an exception which allows for interception where “one of the parties to the communication has given prior consent to such interception.” 18 U.S.C. § 2511(2)(c).

In Novak, Justice O'Connor, sitting by designation, addressed a factual situation substantially similar to the one before this Court. In that case, an inmate made phone calls to an attorney from the county jail in order to obtain his services as a lawyer. Novak, 531 F.3d at 101. The jail randomly records and monitors inmate calls. Id. at 100. In order to avoid monitoring protected phone calls with attorneys, the jail maintains a list of attorneys whose numbers are exempt from recording. Id. at 100. “Inmates can request that officials add the phone number of their attorney to the list so as to exempt all calls made to that number from monitoring.” Id. The inmate never requested that this attorney's number be added to the list. Id. However, “the list is supposed to contain all numbers in the Massachusetts Lawyers Diary and Manual,” such that this attorney's number should have been included on the exemption list. Id. As fate would have it, the number was erroneously left off the list, and the calls were mistakenly recorded. Id. at 101. During the course of these recorded conversations, the attorney agreed to file false affidavits on behalf of the inmate, and also participate in a money laundering scheme. Id. at 101. After the attorney was indicted for these crimes, he filed a motion to suppress the recorded jail calls arguing that the monitoring of the phone calls violated the Fourth Amendment. Id. at 101.

*11 In deciding whether to suppress the phone calls, the Novak court first observed that “[a]t the beginning of every call that [the inmate] made, including those to [the] attorney ..., he heard an automated message advising him that his calls were being monitored. [The inmate] nevertheless spoke to [the attorney] after having heard the warning.” Id. at 102 (internal footnote omitted). In addition, the “phones in the jail contain signs which state, ‘Calls are subject to monitoring and recording.’ ” Id. at 100. Based on those facts, the court reasoned that “[t]here is little question, given the state of First Circuit precedent, that had [the inmate] spoken to anyone other than an attorney from whom he was seeking legal advice, he would be deemed to have consented to monitoring and recording of his calls.” Id. at 102. As such, the court considered “whether the analysis of [the inmate's] consent changes because he was speaking with an attorney.” Id. Although the court recognized that Massachusetts law prohibited the recording of the attorney-client calls, the court nonetheless concluded that “there is no evidence that [the inmate] was aware of this state regulation, or that he believed his consent to monitoring of phone calls was limited only to non-attorneyclient calls.” Id. at 102. Indeed, the court observed that:

[The inmate] was made aware, both through posted signs and recorded messages, that his calls would be monitored and recorded. He did not ask prison officials if there was a way to communicate with his attorney without having his calls monitored, nor did he ask either his Federal Defender or [the attorney] himself how to avoid the monitoring of calls. He did not choose alternate means to communicate with [the attorney], such as by letter or in person. Instead, [the inmate] initiated telephone calls to [the attorney] and discussed sensitive legal issues, despite the fact that every call he initiated started with a recording stating that the call was subject to monitoring and recording.

Id. at 103. Under these circumstances, the court found that the inmate had given consent to the recording of his calls. Id. Although the Novakcourt noted that it was “no doubt significant that one of the parties to the conversation in this case is an attorney,” the court observed that the significance pertained to the Sixth Amendment's protections, not the Fourth Amendment's prohibition against unreasonable searches and seizures. Id. As such, the court concluded that the inmate's “consent, for Fourth Amendment purposes, was adequate to support the monitoring of his calls to [the attorney].” Id.

Similarly, in this case, Defendant was made aware, through the automated warnings as well as the inmate handbook, that his calls would be monitored and recorded. Defendant did not ask prison officials or Newby if there was a way to avoid the monitoring, nor did Defendant attempt to have Newby's number added to the attorney list, or inquire of Newby whether she had done so. Instead, as in Novak, Defendant initiated calls to Newby and discussed his personal affairs with her, despite the fact that every call he initiated started with an automated warning that “all inmate telephone calls are recorded.” See June Hrg., Gov't Exs. 1, 2. This conduct demonstrates Defendant's consent to being recorded, and therefore, the recording of Defendant's phone calls to Newby did not violate the Fourth Amendment or the Wiretap Act.[14] See Novak, 531 F.3d at 103; Medina v. Cnty. of Riverside, 308 F. App'x 118, 120 (9th Cir.2009) (“[Inmates] had actual knowledge of the recording, [based on numerous warnings, including audio recordings and signs,] yet continued their attorney-client conversations. This actual knowledge provides consent to recording, which vitiates plaintiffs' claims under the [Wiretap] Act and under the Fourth Amendment.”); Black v. Attn'y Gen., No. 6:08–cv–784–Orl–35GJK, 2010 WL 4595661, at *3 (M.D.Fla. Nov.3, 2010) (“Further, Petitioner consented to the taping of his telephone calls since he was warned by an automated message that his calls were subject to monitoring. In spite of this warning, Petitioner chose to continue his conversations.”); United States v. Colbert, No. 08–411, 2011 WL 3360112, at *8 (W.D.Pa. Aug.3, 2011) (finding no Fourth Amendment violation “because all of the defendants consented to the monitoring and recording of the calls simply by placing them after being put on notice that the calls were subject to monitoring and recording”); see also United States v. Hodge,85 F. App'x 278, 281 & n. 2 (3d Cir.2003) (holding that because Defendant had adequate notice of the taping of calls he consented to the recording of his conversations) (collecting cases); United States v. Hammond, 286 F.3d 189, 192 (4th Cir.2002) (concluding that the consent exception to the Wiretap Act applies to prison inmates who are required to permit monitoring as a condition of using prison telephones) (collecting cases); United States v. Freeman, No. 09–80104–CR, 2010 WL 989227, at *6–9 (S.D.Fla. Mar.16, 2010); United States v. Lamell, No. 2:12–cr–00016–wks, 2012 WL 5285383, at *6 (D.Vt. Oct.25, 2012); Hill, 815 F.Supp.2d at 588 (“When a prison gives notice to inmates that their calls may be monitored, inmates' use of the prison's telephones constitutes implied consent for the purposes of [the Wiretap Act].”).[15]

*12 While it may be troubling that the Jail makes little, if any, effort to inform attorneys that they can have their telephone numbers excluded from the recording, it does not follow that the lack of knowledge regarding this possibility misleads the inmates or their attorneys into believing that their telephone calls are somehow already excluded from recording. Justice O'Connor's analysis of the similar circumstances in Novak is persuasive here:

The question that the parties present to us today is not whether we approve of the methods that law enforcement employed in this case, or whether prisons have authority under either state law or the Sixth Amendment of the United States Constitution to regularly monitor phone calls made between attorneys and their clients....

It is no doubt significant that one of the parties to the conversation in this case is an attorney. That significance, however, does not arise out of the Fourth Amendment's prohibition against unreasonable searches and seizures. Instead, it is attached to the protections that the Sixth Amendment affords to the attorney-client relationship. [The inmate's] consent, for Fourth Amendment purposes, was adequate to support the monitoring of his calls to [the attorney].

See Novak, 531 F.3d at 102–03. In sum, Defendant was notified by way of the Inmate Handbook, and automated recordings at the beginning of every call, that all telephone calls were recorded, yet he decided to call his attorney and carry on a conversation with her anyway. These facts demonstrate Defendant's consent to the recording of the calls for purposes of the Wiretap Act and the Fourth Amendment.

Having determined that the government lawfully obtained these recordings, the Court next considers whether the phone calls are nevertheless protected by the attorney-client privilege. “The party invoking the attorney-client privilege has the burden of proving that an attorney-client relationship existed and that the particular communications were confidential.” See United States v. Schaltenbrand, 930 F.2d 1554, 1562 (11th Cir.1991). The Eleventh Circuit has set forth a two-part analysis to determine when the attorney-client privilege protects a communication between an attorney and his client from government intrusion. See United States v. Noriega, 917 F.2d 1543, 1551 (11th Cir.1990). Specifically, “[a] communication between an attorney and his client will be protected if it is: ‘(1) intended to remain confidential and (2) under the circumstances was reasonably expected and understood to be confidential.’ ” Id.; see also United States v. Landers, No. 1: 12–CR–88–TWTGGB, 2012 WL 6214627, at *4 (N.D.Ga. Nov.7, 2012).

It is well settled that “disclosures made in the presence of third parties may not be intended or reasonably expected to remain confidential.” See United States v. Blasco, 702 F.2d 1315, 1329 (11th Cir.1983) (quoting United States v. Melvin, 650 F.2d 641, 645 (5th Cir.1981)). In United States v. Hatcher, 323 F.3d 666 (8th Cir.2003), the Eighth Circuit reasoned that “[t]he presence of the recording device was the functional equivalent of the presence of a third party.” Hatcher, 323 F.3d at 674. The court explained, “[t]he presence of the prison recording device destroyed the attorney-client privilege. Because the inmates and their lawyers were aware that their conversations were being recorded, they could not reasonably expect that their conversations would remain private.” Id. Based on similar reasoning, “[s]everal [courts] outside the Eleventh Circuit have held, or strongly support the ... position that where an inmate is aware that his calls are being recorded, those calls are not protected by a privilege.” Landers, 2012 WL 6214627, at *4 (collecting cases). This Court finds the reasoning in Hatcher and Landerspersuasive, and concludes that under the circumstances of this case, Defendant's conversations with Newby on the monitored jail phone are not protected by the attorney-client privilege. See Landers, 2012 WL 6214627, at *5; United States v. Lentz, 419 F.Supp.2d 820, 828 n. 16 (E.D.Va. Aug.22, 2005) (“[A]n inmate's telephone conversations with counsel are not protected by the attorney-client privilege where, as here, the inmate is notified at the outset that the calls are recorded and subject to monitoring.”).

*13 In the First Objection, Defendant emphasizes the importance of the attorney-client privilege and the need for such communications to be kept confidential. First Objection at 14–16. However, he presents no legal authority to support the proposition that Defendant could possess a reasonable belief that his calls to Newby were confidential, despite the clear and unequivocal warning that all calls were recorded. Indeed, the presence of clear, unequivocal warnings distinguishes this case from those cases cited by Defendant. For example, in Gennusa v. Shoar, 879 F.Supp.2d 1337 (M.D.Fla. July 17, 2012), the court found that the arrestee had a reasonable expectation of privacy in his “attorney-client conversations held in the police interview room.” See id. at 1349. However, in that case, the arrestee and his attorney were given “no indication” that their conversation was being recorded. Id. at 1342. Specifically, “[t]he camera was not obviously recognizable, no signs warned of the possibility of surveillance, and [the arrestee and his attorney] were not told that they were being recorded or monitored.” Id. at 1342 n. 1. Thus, the court's finding that the arrestee and his attorney had an objectively reasonable expectation of privacy in the police interview room under the circumstances of that case is not persuasive here where both Defendant and Newby were expressly warned that all calls were recorded.[16] Moreover, this is not a case where Defendant or his attorney were misled to believe that attorney-client calls would not be recorded. Cf. United States v. Walker, No. 2:10cr186–MHT, 2011 WL 3349365, at *2 (M.D.Ala. July 14, 2011) (finding that the inmate's recorded calls to his lawyer from prison were privileged where the jail's recorded message “explicitly excluded attorney-client calls from being recorded and monitored,” such that the inmate and his attorney were not aware that they were being recorded). Accordingly, the Court concludes that the explicit warning to Defendant that his conversations with Newby were recorded vitiates any argument that he reasonably could have expected the phone calls to remain confidential for purposes of the attorney-client privilege.[17] In accordance with the foregoing, the Court will accept the Magistrate Judge's proposed resolution and deny the Second Motion to Suppress.[18]

IV. Third Motion

In February of 2011, Defendant was arrested pursuant to a state arrest warrant for failure to appear. Tr. III at 47–48. On April 13, 2011, a Florida circuit court judge entered an Order modifying the terms of Defendant's incarceration to allow Defendant “to have telephonic privileges for the purpose of contacting possible new defense counsel to represent him” in his criminal case pending in the state court. SeeDec. Hrg., Def. Ex. 3. On April 29, 2011, Defendant contacted Michele Taylor, who was a private attorney at the time, using the Jail's phone system. See Dec. Hrg., Gov't Ex. 1, 1A, 2, 2A. Because Defendant was housed in an isolation cell at the Jail, to place a telephone call a person outside of the cell had to dial the number for him and then hand Defendant the receiver. See Tr. III at 65, 74–75, 84–85; Tr. IV at 15. As with the phone calls to Newby, Defendant's phone calls to Taylor were recorded by the Jail's recording system and an automated warning of this fact played at the beginning of the two calls. See Dec. Hrg., Gov't Ex. 1, 1A, 2, 2A; see also Transcript of January Hrg. (Doc. 209; Tr. IV) at 38–39.

A. Summary of the Arguments

*14 In the Third Motion, Defendant requests that the Court suppress “all communications made by Defendant to Michele Taylor, Attorney at Law, during the course of and in anticipation of representation of the Defendant” as well as any evidence obtained therefrom as fruit of the poisonous tree. See Third Motion at 1 (internal footnote omitted). Specifically, Defendant contends that the contents of the phone conversations between Defendant and Taylor, which were recorded on the Jail's telephone system, are protected by the attorney-client privilege. See id. at 2. In the Second Report, the Magistrate Judge finds that the recorded telephone calls are not protected by the attorney-client privilege because “Mitchell had full knowledge his calls were not confidential and were, in fact, being recorded and reviewed by law enforcement officials.” See Second Report at 14. Defendant objects to this recommendation and argues that these calls are privileged because a Florida circuit court judge ordered that Defendant be allowed to access the jail telephone to obtain legal representation such that the jail personnel knew that Defendant was contacting an attorney, jail personnel actually dialed the calls to the attorney for Defendant, and during one of the calls Taylor reassured Defendant that their conversation was protected by the attorney-client privilege.[19] See Second Objection at 1–2. The government did not respond to Defendant's Second Objection.

B. Analysis

Upon careful consideration of the record, as well as the Second Report and Second Objection, the Court concludes that the Second Objection is due to be overruled and will adopt the Second Report. Defendant's attempts to distinguish the jail calls to Taylor from the earlier calls to Newby are unavailing. It is undisputed that prior to the beginning of each of Defendant's calls to Taylor an automated message played stating, among other things, that “[a]ll inmate telephone calls are recorded.” See Dec. Hrg., Gov't Ex. 1, 1A, 2, 2A. Indeed, the evidence shows that Defendant was well aware of the Jail's policy in recording all telephone calls not only from the automated warning and the Inmate Handbook, but also from his conversation with Lomonaco wherein Lomonaco told Defendant that he had been listening to some of Defendant's jail calls. See May Hrg., Gov't Ex. 4A. Because Defendant was aware that his conversations with Taylor were being recorded, he could not reasonably have expected them to remain confidential. Landers, 2012 WL 6214627, at *4–5; see supra at pp. 26–29. Significantly, although Defendant argues that he had a subjective expectation of privacy in those calls, see Second Objection at 5, he presents no evidence to support this contention, and his own statements during the calls demonstrate that he was aware that the calls were recorded. Dec. Hrg., Gov't Exs. 1, 1A; see also Schaltenbrand, 930 F.2d at 1554 (instructing that the party invoking the privilege bears the burden of proving that the particular communications were confidential). Moreover, while the state court order and the Jail's dialing procedures demonstrate that personnel at the Jail were likely aware that Defendant was using the telephone to contact an attorney, this evidence does not show that, as a result, Defendant believed that the calls were not recorded, despite the warnings and his own prior experience to the contrary. Therefore, the evidence before the Court establishes that Defendant did not, nor could he, reasonably believe that his conversations with Taylor were confidential.

*15 Last, under the circumstances of this case, the Court concludes that Taylor's statement to Defendant that the conversation was protected by the attorney-client privilege does not render the conversation privileged. Although Taylor told Defendant that the conversation was protected, she did not suggest that the conversation was not actually recorded.[20] Thus, Taylor's statement appears to be a mistake of law with respect to the application of the attorney-client privilege to her recorded conversations with Defendant. Mistakes of law cannot transform an unprivileged conversation into a privileged one. See In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 923–24 (8th Cir.1997); Lentz, 419 F.Supp.2d at 828 n. 16. Regardless, Defendant fails to present any evidence that he relied on Taylor's assurances. Indeed, Defendant rejected Taylor's suggestion that the conversation was privileged with the statement, “Oh God they don't care about that,” see Dec. Hrg., Gov't Ex. 1, and he continued to speak in guarded language during the remainder of the calls. See Dec. Hrg., Gov't Ex. 1–2. As such, Defendant has not established that he communicated with Taylor under circumstances that he “reasonably expected and understood to be confidential.” Noriega, 917 F.2d at 1551. Because Defendant was well aware that his conversation with Taylor was recorded and likely monitored, just as with Newby, Defendant had no reasonable expectation that the calls were private or confidential. Accordingly, the Court will overrule Defendant's Second Objection, adopt the Magistrate Judge's Second Report, and deny the Third Motion to Suppress. In accordance with the foregoing, it is

ORDERED:

1. Defendant's First Objection to Report and Recommendation of Magistrate (Doc. 173) is OVERRULED.

2. The Magistrate Judge's recommended resolution in the First Report and Recommendation (Doc. 144) is ADOPTED as set forth in the body of this Order.

3. Defendant's First Motion to Suppress Evidence (Doc. 52) is DENIED.

4. Defendant's Second Motion to Suppress Evidence (Doc. 55) is DENIED.

5. Defendant's Second Objection to Report and Recommendation of Magistrate (Doc. 224) is OVERRULED.

6. The Magistrate Judge's Second Report and Recommendation (Doc. 218) is ADOPTED.

7. Defendant's Authorized Third Motion to Suppress (Doc. 189) is

DENIED. DONE AND ORDERED.

REPORT AND RECOMMENDATION[1]

THOMAS E. MORRIS, United States Magistrate Judge.

I. Status

This case is before the Court on two motions to suppress evidence that were filed by Defendant Donald Mitchell (see Doc. # 52, “First Motion;” Doc. # 55, “Second Motion”). The First Motion seeks suppression of any evidence derived from the seizure of the vehicle that Defendant had parked on December 28, 2010, the day of his arrest, claiming such evidence would be “fruits of the poisonous tree.” First Motion at 1. The Second Motion seeks to suppress all records obtained from the law office of Amy Newby, Esq., as well as “all communications made by the Defendant to Amy Newby ... during the course of the representation of the Defendant” and “all evidence obtained subsequent to the aforesaid seizure and testimony as fruits of the poisonous tree.” Second Motion at 1. The Government has responded in opposition to both motions (see Doc. # 66, “First Response;” Doc. # 67, “Second Response”).

*16 The motions to suppress were referred to the undersigned by the Honorable Marcia Morales Howard for issuance of a report and recommendation.[2] The Court held evidentiary hearings on May 31, 2012 and June 20, 2012. Transcripts of the proceedings have been filed (Docs. # 127 and # 137) (hereinafter referred to as “Tr. 1” and “Tr. 2”, followed by the appropriate page number).[3]

Upon consideration of the argument from counsel and the evidence presented, the undersigned recommends the motions to suppress be denied.

II. Background

On September 29, 2011, a grand jury returned a seven count Indictment (Doc. # 1) charging Defendant Donald Mitchell (hereinafter referred to as “Defendant” or “Mitchell”) with mail fraud, conspiracy to commit mail fraud, and wire fraud, in violation of Title 18, United States Code, Sections 1341, 1343, and 1349. The Indictment also alleges there is property, real or personal, that is subject to forfeiture pursuant to Title 18, United States Code, Section 981(a)(1)(C) and Title 28, United States Code, Section 2461(c). The nature of the alleged fraud centers around an investment scheme devised, or intended to be devised, by Mitchell. A Superseding Indictment was returned on April 25, 2012 (Doc. # 89). The Superseding Indictment reduced the number of counts to four, although the same statutory violations were alleged in the Superseding Indictment as were alleged in the original Indictment.

Defendant seeks to suppress all evidence seized from the vehicle he had driven on the day of his arrest, any materials obtained from the Law Office of Amy E. Newby, P.A., who was Defendant's legal counsel at the time of his arrest, and any statements recorded in telephone conversations between himself and Amy Newby during Defendant's incarceration subsequent to the December 28, 2010 arrest. See generally, First Motion and Second Motion. Defendant claims the search of his vehicle and the seizure of property from the vehicle was unlawful and was made without his consent. First Motion at 2. Defendant further claims legal files containing attorney/client privileged communications were seized from Newby's office “without a warrant and by threatening a law firm employee....” Second Motion at 2. Defendant requests suppression of the documents obtained from the legal files and the recorded conversations between Newby and himself on the basis this evidence was obtained in violation of Defendant's attorney/client privilege. Id. The United States argues the detention and search of the Maserati that Mitchell had parked on December 28, 2010 were conducted according to well established police procedures, the search of the property from the vehicle was not conducted until consent had been given, there were no records of any type obtained from Newby's law office, and the recorded conversations fall outside the ambit of attorney/client privilege. See generally, First Response and Second Response. The United States specifically claims the vehicle was correctly seized as evidence of one of the state crimes for which Mitchell was arrested on December 28, 2010, and the subsequent vehicle search was an inventory search conducted pursuant to policy and procedures of the Jacksonville Sheriff's Office. First Response 1, 4–6. Additionally, the United States argues proper consent was obtained for the search of the property found within the vehicle. Id. at 7. The United States asserts the communications Mitchell seeks to exclude are either not privileged or fall within the crime-fraud exception to attorney-client communications, and there were no records obtained from Newby, her law office or her legal staff (Tr. 2 at 46–53, 79). See also Second Response at 7–8.

*17 Notably, Defendant does not raise a Miranda challenge. Nor, does Defendant attack the arrest itself (see Tr. 234). Rather, Defendant argues that the towing of the Maserati was undertaken as a pretext to further the federal investigation that led to the fraud charges in the present Indictment (see Tr. 1 at 51, 234–35).

Upon consideration of all the evidence presented and the arguments made, the Court makes the following findings of fact and conclusions of law.

III. Findings of Fact

Amy Newby began to represent Mitchell as an attorney in approximately April 2010, when she was retained to defend him against a State charge of grand theft auto. Second Response at 2. In July 2010, Newby assisted Mitchell in the purchase of one or more luxury vehicles by providing letters under her signature as the “Estate Manager” for Donald H. Mitchell. These letters purport to outline vehicle purchases made on Mitchell's behalf by a representative from Newby's office. See Gov't Exs. 14, 15, 16. In order to arrange for the purchase of an expensive Mercedes–Benz vehicle for Mitchell, Newby overstated the income of the “representative” from her law firm, who was designated to purchase the car on Mitchell's behalf (Tr. 2 at 75–77, 121; Gov't Ex. 15). Arguably, Newby was Mitchell's attorney of record when he was arrested in December 2010 (Tr. 2 at 11–12). Newby testified she considered Mitchell a client until February 2011. Id.

Also during July or August 2010, Mitchell came to the attention of local law enforcement officials through the monitoring of outgoing phone calls made by Mitchell while incarcerated at the Duval County Jail (Tr. 1 at 10, 30–31, 114–15). Prior to monitoring his phone calls, correctional officers at the jail noted what they deemed to be unusual behavior of Ms. Amy Newby (Tr. 1 at 220). During that period of time, Mitchell had been transferred from federal prison, where he was serving a sentence, to the Duval County Jail so that he could testify as a witness in a separate State case. Id. Ms. Newby came to visit Mitchell for approximately two hours “every single day,” which the correctional officers thought was odd. Id. Thus, an investigation into Mitchell's activities commenced. The direction Mitchell's investigation would take, however, was not fully known and JSO personnel contacted the Federal Bureau of Investigation (FBI), which in turn contacted Special Agent Lawrence Lomonaco of the United States Secret Service because Lomonaco had prior knowledge and a history of dealing with Mitchell (Tr. 1 at 33, 114–15). The three law enforcement agencies worked together as the investigation developed and progressed. Information obtained during July and August 2010 eventually led to the federal charges against Mitchell for fraud violations, although the investigation remained a joint State and federal investigation for an extended period of time (Tr. 1 at 10, 33–34, 115, 206).

Mitchell was released from incarceration in mid-to-late 2010, only to have two new State warrants issued for his arrest. On December 16, 2010, a State court warrant was issued for the arrest of Donald Heflin Mitchell, for grand theft of two tires from Tire Kingdom on December 5, 2010 in Jacksonville, Florida (Gov't Ex. 5). The affidavit for the arrest warrant lists Amy Newby as the “suspect's attorney.” Id. On December 21, 2010, a second State court warrant was issued for the arrest of Donald Heflin Mitchell, for grand theft of brake services from Midas Brakes on October 21, 2010 in Jacksonville, Florida (Gov't Ex. 6). The affidavit for the arrest warrant states Ms. Amy Newby arrived at the Midas store and advised she was Mitchell's attorney. Id. The affidavit alleges that while the manager was distracted by the suspect's attorney, Mitchell left the area in the vehicle on which the brake services were performed. Id.

*18 Around midmorning on December 28, 2010, Detective Dave Bisplinghoff of the Jacksonville Sheriff's Office (JSO) was standing outside of the police station when he observed Mitchell drive past him in a silver Maserati on Adams Street (Tr. 1 at 12–13, 66–68).[4] Bisplinghoff recognized Mitchell from having previous encounters with him (Tr. 1 at 30). Knowing that two arrest warrants were outstanding for Mitchell, Detective Bisplinghoff immediately got into his vehicle and followed Mitchell to the nearby law offices of attorney William J. Sheppard (Tr. 1 at 13). Mitchell parked at a meter on the street and went into the law office building. Id. Bisplinghoff had initiated a radio call for back-up when he saw Mitchell exit the building (Tr. 1 at 13–14). A dispatch went out asking for an officer to render assistance to Detective Bisplinghoff (Tr. 1 at 63). Bisplinghoff took Mitchell into custody just as patrol officer M.S. Lundquist arrived on the scene in his JSO marked vehicle. Id.

Bisplinghoff advised Mitchell he was under arrest on the two outstanding grand theft warrants (Tr. 1 at 14). Mitchell gave Lundquist the key to the Maserati so that Lundquist could retrieve Mitchell's identification from the car (Tr. 1 at 15). Having received Mitchell's permission to enter the car, Lundquist went into the Maserati and obtained Mitchell's identification from a bag in the back seat (Tr. 1 at 63–64). Lundquist returned the Maserati key to Mitchell, which went with him as personal property to the jail, as did two cellular phones and other miscellaneous items (Tr. 1 at 16, 130; Gov't Ex. 7).

The morning of December 29, 2010, Detective Bisplinghoff contacted the State Attorney's office, which directed that the Maserati be seized because the stolen tires were allegedly on the car (Tr. 1 at 18–20). Detective Bisplinghoff went to the location where the Maserati was parked, verified the VIN number of the vehicle matched the VIN on the General Offense / Incident Report of the grand theft from Tire Kingdom, and eyeballed the tires on the Maserati to verify the tires stolen from Tire Kingdom were on the vehicle (Tr. 1 at 19–20, 53–57; Defendant's Ex. 2; Defendant's Ex. 3; Gov't Ex. 9). Bisplinghoff then obtained the key to the Maserati from the inmate personal property room at the jail, called for a tow truck to move the Maserati from the parking spot on the street to the city impound warehouse, and returned to the site where the vehicle was parked (Tr. 1 at 18–21). Bisplinghoff impounded the Maserati as evidence of the grand theft of tires from the Tire Kingdom and the vehicle was moved to the warehouse (Tr. 1 at 21–23, 34–34, 41–44; Tr. 2 at 20–28; Defendant Ex. 12).[5] An inventory search of the contents inside the Maserati was conducted at the impound warehouse (Tr. 1 at 24–26).

On December 29, 2010, JSO Detective David Gonzalez of the forfeiture unit at the city impound warehouse assisted in the inventory search of the Maserati (Tr. 2 at 20–28). Detective Gonzalez was unable to recall or verify whether the vehicle was driven to the warehouse or was towed, but confirmed he assisted in the inventory search (Tr. 2 at 20–23). The items retrieved from the Maserati during the inventory search included, among other things, two iPads with air cards, four Visa debit cards, a USAA teller check, a BB gun rifle, a BB gun pistol, and $177.46 in United States currency (Tr. 1 at 25). The records kept by the impound warehouse reflected that someone other than Mitchell owned the Maserati at the time it was impounded (Tr. 1 at 176; see also Tr. 1 at 218–19).[6]

*19 Attorney Amy Newby was approached by Detective Bisplinghoff and Agent Lomonaco on December 28 or 29, 2010, to inquire whether she would cooperate with law enforcement in an ongoing investigation of Mitchell (Tr. 1 at 35–37, 148–50). Ms. Newby was an attorney of record for Mitchell at that point in time and was initially reluctant to talk to law enforcement officials (Tr. 2 at 10–12; Tr. 1 at 35–37).

On December 31, 2010, Mitchell, then an inmate at the Duval County Jail, made a prepaid call to Amy Newby (Gov't Ex. 1; Doc. # 134–1; Tr. 2 at 58–60). Mitchell and Newby heard, by way of the prerecorded message, that “[a]ll inmate telephone calls are recorded” and “three-way calling is prohibited” (Doc. # 134–1 at 1). Newby had to physically press a number on her phone to accept the call under the described terms. Id. Early in the conversation, Mitchell requested Newby go to MobileMe and “wipe my phone as quickly as you can” (Doc. # 134–1 at 2).[7]Newby complied (Doc. # 134–1 at 6). During this same phone call, Mitchell also instructed Newby to call another lady named Almashea from her (Newby's) cell phone, which Newby did and proceeded to interact between Mitchell and Almashea (Doc. # 134–1 at 6–8; Tr. 2 at 65, 109–110). This form of three-way calling is prohibited under the terms by which inmates at the jail may make outgoing calls (Tr. 2 at 110). The substance of the third party call involved Mitchell's directions to Almashea to have USAA cancel the “last package” she sent and to “rewrite another one and send it” (Doc. # 134–1 at 7). During the portion of the call when only Mitchell and Newby were on the phone line, Mitchell inquired what the legal basis could be to require a Nebbia hearing for him.[8] Id. at 9.

Calls made by inmates from the Duval County Jail to the outside world are routinely monitored (Tr. 2 at 103). There is a prerecorded statement at the initiation of all calls from inmates in the jail that states the call is being recorded (Tr. 2 at 89; Doc. # 134–1). Telephone communications between inmates and their attorneys can be exempted from the recording if the attorney requests to have his or her calls removed from the recording list. Id. The removal from the recording list is based on the telephone number provided by the attorney to the jail custodian for the audio records (Tr. 2 at 103–05). Generally, the telephone number provided by the attorney permanently remains as an exempt phone number from recorded calls.[9] Id.

In addition to advising the phone call from the jail will be recorded, the prerecorded warning statement that plays at the beginning of each inmate initiated phone call tells the caller and the receiver three-way calling is prohibited (Doc. # 134–1). If the inmate calls someone outside the jail and that person uses a cell phone to call someone else and communicate with the third person on a speaker phone, the call is considered an impermissible three-way call (Tr. 2 at 110).

*20 Bisplinghoff and Lomonaco again met with Ms. Newby on January 4, 2011. The meeting occurred at the offices of the United States Attorney for the Middle District of Florida (Tr. 1 at 35–40, 150–51).[10] Ms. Newby arrived at the U.S. Attorney's Office without legal counsel and discussed her involvement in the purchase of two luxury automobiles for Mitchell (Tr. 1 at 38–40). It is alleged in the Superseding Indictment that as part of the conspiracy Mitchell fraudulently obtained luxury automobiles to help create the illusion that he was a legitimate investor. Superseding Indictment at ¶ 6.

During this meeting, Ms. Newby also gave consent to search the iPhone and two iPads, which she stated belonged to her even though they were found within the Maserati driven by Mitchell (Tr. 1 at 26–28, 104–06, 128–29; see also Gov't Ex. 13, Consent to Search Computer Equipment, signed January 5, 2011 by Amy Newby).[11] Mitchell introduced evidence that as of July 7, 2010 he possessed an iPhone under the alias “Maven Busari” and had taken this phone to an Apple Store for repairs. Defendant's Ex. 7. Mitchell's evidence also shows that the email address of record for that iPhone was amynewby@amynewby.com. See id. Lomonaco testified that AT & T records identified Amy Newby as the owner and bill payer for the iPhone (Tr. 128–29). The evidence establishes Newby was the owner of the iPhone and iPads and Mitchell may have been an approved user.

Lomonaco read Newby the Miranda rights when she met with him and Bisplinghoff at the United States Attorney's Office on January 4, 2011 (Tr. 1 at 150–51). Agent Lomonaco testified he administered those rights because Ms. Newby had been handcuffed earlier that day by another law enforcement agency and he believed it best to advise her of her constitutional rights under the circumstances (Tr. 1 at 151–52). As of January 4, the State Attorney had given Ms. Newby a waiver from prosecution of a State bar charge for an unspecified period of time (Tr. 1 at 223–24). When Ms. Newby spoke with Lomonaco and Bisplinghoff, she was not handcuffed, nor had she been advised she would go to jail unless she cooperated. Id.

On February 9, 2011, Mitchell, who had been released on bond from the jail on February 6, telephoned Agent Lomonaco (Tr. 1 at 145–48, 238; Doc. # 134–3). During that call, Mitchell gave Lomonaco permission to search the bag that was in the Maserati and “get [his] banking information out of it.” Id. Mitchell told Lomonaco that he could hold the information “in evidence” if he wanted. Id. The next day, February 10, Mitchell again called Agent Lomonaco, this time giving Lomonaco permission to search the iPhone that had been in the bag inside the Maserati (Tr. 1 at 109–112; Doc. # 134–4; Doc. # 134–5). Mitchell also verified that the two iPads found in the Maserati were purchased by and belonged to Amy Newby. Id.

In January and February 2011, Agent Lomonaco identified and interviewed a number of individuals as potential victims in Mitchell's alleged financial investment scam (Tr. 1 at 118–20). The victims were not, however, initially identified through information obtained from either the iPhone or the iPads found in the Maserati (Tr. 1 at 113). At that point in time, Ms. Newby had committed some acts that Lomonaco considered potentially criminal, but he also believed Ms. Newby might have been a potential victim of Mitchell's alleged fraud (Tr.1 at 121).

*21 In August 2011, Mitchell pled guilty to the State charge of grand theft of the brake services from Midas, and the grand theft charge of the tires from Tire Kingdom was thereafter dropped (Tr. 1 at 226). In September 2011, Mitchell was indicted by a federal grand jury on fraud charges (Doc. # 1).

IV. Analysis and Conclusions of Law

Motions to suppress evidence relevant to a criminal trial present mixed questions of law and fact for the court's determination. United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir.1991) (internal citations omitted). The individual moving for suppression of evidence bears the initial burden of persuading the court, through specific factual allegations and supporting evidence, that seizure of the evidence was illegal and that the evidence should therefore be suppressed. United States v. Ross, 827 F.Supp. 711, 716 (S.D.Ala.1993) (citations omitted). “Once the movant has established a basis for his or her motion, the burden then shifts to the government to prove by a preponderance of the evidence that the seizure of evidence was legally and factually justified.” Id. A circuit court of appeals reviews the district court's findings of fact under the clearly erroneous standard, but application of the law to those facts is subject to de novo review. Tobin, 923 F.2d at 1510.

Validity of the Impoundment and Inventory Search of the Maserati

The Fourth Amendment prohibits “unreasonable searches and seizures....” U.S. Const. Amend. IV. The Supreme Court has held that what is reasonable depends on “all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.” United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985). Although warrantless searches generally are presumptively unreasonable, there are exceptions in which the government's interest in conducting a warrantless search outweighs the individual's privacy interest. See, e.g., Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) (finding evidence of a crime in plain view may be reasonably seized without a warrant); United States v. Gordon, 231 F.3d 750, 754 (11th Cir.2000) (finding a Terrystop is one exception to warrant requirement). An inventory search of a legally impounded vehicle presents such an exception. Colorado v. Bertine, 479 U.S. 367, 371, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987); United States v. Laing, 708 F.2d 1568, 1570 (11th Cir.1983) (per curiam).

An inventory search does not run afoul of the Fourth Amendment so long as the search is performed pursuant to explicit and comprehensive police procedures as a means for safeguarding individuals' possessions and protecting the police from false claims. Bertine, 479 U.S. at 372; United States v. Williams, 936 F.2d 1243, 1247 (11th Cir.1991). A warrantless inventory search of a vehicle is permissible when executed in accordance with standard police practice. Laing, 708 F.2d at 1570 (internal citations omitted). An inventory search, however, may not be used as a pretext for intrusive investigatory searches that go beyond the scope of the recognized purposes to conduct an inventory of the contents of a suspect's vehicle. Id. Thus, inventory searches may not be conducted for the primary purpose of investigating crime. United States v. Shirley, No. 1:10–CR–167–JEC/AJB, 2010 WL 5390138, at *13 (N.D.Ga. Nov.10, 2010) (citing Florida v. Wells, 495 U.S. 1,4, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990)).[12] In other words, the search “must not be a ruse for a general rummaging in order to uncover incriminating evidence.” Id. (internal quotation marks omitted). The validity of the inventory search hinges on the decision which brought the property into the hands of the police in the first instance.

*22 In cases involving automobiles, this requires examining the legality of the decision to impound the car. To be valid, the impounding and inventorying of the car must be according to standard criteria and may not be pretext for an investigation. United States v. Skinner, 957 F.Supp. 228, 231–32 (M.D.Ga.1997). Evidence that the inventory search in question was undertaken as a standard practice for the involved law enforcement agency is the strongest indicia that an inventory check was conducted for legitimate purposes. Laing, 708 F.2d at 1520. The scope of an inventory search extends to the contents of closed containers found within the vehicle. See Bertine, 479 U.S. at 371–75. That an inventory search may be expected to turn up evidence of a crime does not vitiate a valid inventory search conducted pursuant to proper protocol and standards. Shirley, 2010 WL 5390138 at *13–14 (internal citations omitted).

In this case, Mitchell was arrested pursuant to two valid warrants and the Maserati was impounded to preserve evidence, namely the two tires that allegedly were taken from Tire Kingdom without payment. Gov't Exs. 5 & 6; Defendant's Exs. 1–3. Mitchell does not contest the actual arrest and the Court finds probable cause existed to arrest Mitchell on the outstanding warrants. See United States v. Glover, 441 Fed. Appx. 748, 750–51 (11th Cir.2011) (finding probable cause existed for arrest even though the defendant was initially stopped because his vehicle did not display a license tag, which was a non-criminal violation).

In United States v. Ceruti, 827 F.Supp.2d 1036 (W.D.Mo.2011), a somewhat similar factual situation existed at the time of the defendant's arrest, but based on testimony from the arresting officer, the court found the inventory search of the vehicle had no legal basis. The ruling on the propriety of the inventory search in Ceruti, however, is easily distinguishable from the present case. In that case, police stopped Ceruti because his driver's license had expired and there was an outstanding warrant for his arrest. Ceruti's vehicle was impounded, towed, and subjected to an inventory search subsequent to Ceruti's arrest. Id. at 1041. When an officer was questioned as to the basis for towing the vehicle, he testified it was done because Ceruti was under arrest, the vehicle was parked on private property, and it was the practice of the police department to tow a vehicle when making an arrest. Id. at 1043. Upon examining the towing policy for the Kansas City, Missouri Police Department, the court found there was no legal basis for the tow because the stated reason did not fall within the actual policy of the department. Id. at 1044.

In contrast, the impoundment and towing of the Maserati in this case clearly falls within the policy and practice of the JSO. JSO standard procedures and Jacksonville Municipal Ordinance 804.1101 explicitly provide for the detention of vehicles “subject to being held as evidence.” Gov't Exs. 8 & 18. The detective was specifically told to seize the vehicle because the tires were believed to be stolen. The preservation of evidence of a crime is specifically stated as one of many reasons a vehicle would be towed by JSO. Although Mitchell argues Bisplinghoff's actions of impounding and inventorying the Maserati were simply a pretext to investigate the contents of the vehicle in furtherance of the ongoing federal investigation (Tr. 1 at 51), the fact remains that the vehicle was impounded and inventoried under standard police procedures after a valid arrest.

*23 In Cardwell v. Lewis, 417 U.S. 583, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974), the Supreme Court was faced with “the issue of the legality, under the Fourth and Fourteenth Amendments, of a warrantless seizure of an automobile and the examination of its exterior at a police impoundment area after the car had been removed from a public parking lot.” Id. at 585. In determining whether the examination of the automobile's exterior, including the tire tread on an operative wheel, invaded the vehicle owner's right to privacy that a warrant requirement was meant to protect, the Court found the “invasion of privacy, if it [could] be said to exist, [was] abstract and theoretical.” Id.at 592 (citation omitted). Finding probable cause existed for the arrest of the defendant a day earlier, and probable cause existed to believe Lewis' car had been used in the commission of a crime, the Court determined a warrantless examination of the exterior of a car is not unreasonable under the Fourth and Fourteenth Amendments. Id. at 586–92. The fact that Lewis' car was impounded before the exterior examination was done did not render the seizure unreasonable or the examination a violation of the Fourth or Fourteenth Amendments. Id.at 592–93. In the case before this Court, Bisplinghoff had probable cause to arrest Mitchell, probable cause to inspect the tires on the Maserati, and probable cause to impound the vehicle to preserve the evidence of the Tire Kingdom theft. The initial inspection of the Maserati's exterior was reasonable, as was the subsequent inventory search.

It is not relevant to the Court's findings that a factual dispute exists over the time of day that the vehicle was moved. Defendant called a surety bond agent to testify that she had seen the Maserati parked on the street the afternoon of the day Mitchell was arrested, but did not see it parked between ten o'clock and eleven o'clock the next morning when she arrived at work (Tr. 1 at 88–91). Testimony from another of Defendant's witnesses indicated she looked for, but did not see, the Mitchell's car on December 29 when she received a phone call from Amy Newby at 9:54 a.m., asking that she go put money in the meter for “probably the nicest [car] out there” (Tr. 1 at 93–101). Bisplinghoff testified the property records receipts showing he retrieved the key to the Maserati from the property room at 11:08 a.m. on December 29 and the Maserati was taken into the impound warehouse at approximately 12:29 p.m. that day were accurate to the best of his knowledge (Tr. 1 at 198–99; see also Tr. 1 at 167–77, Testimony of Detective Martin Chapman). Whether the car was moved before or after ten o'clock the morning of December 29, 2010 does not alter the finding the Maserati was impounded and inventoried as evidence of a crime in accordance with JSO policy and procedures.

Not only was the impoundment of the vehicle in accord with JSO procedures for preserving evidence, but the involved officer also had a right and a duty to protect the Maserati and its contents. See, e.g., United States v. Staller, 616 F.2d 1284, 1289–90 (5th Cir.1980) (finding the police were justified in taking custody of the appellant's car pursuant to their community care taking function because the vehicle was in danger of being stolen or vandalized given that the owner was to be separated from the vehicle for some time);[13] see also Gov't Ex. 18 (Jacksonville Municipal Code Sec. 804.1101(d) authorizing the impoundment of a vehicle if the continued presence of the vehicle at its physical location poses a danger to the vehicle itself). Whether the inventory of the vehicle would lead to discovery of evidence relevant to the federal investigation is irrelevant to the inventory search that was performed in accord with standard operating procedures. See Shirley,2010 WL 5390138 at *13–14 (collecting cases). The Court will not delve into the mind of the officer so long as the proper objective standards for the otherwise valid inventory search are met. See id. Standard police protocol was followed in this instance.[14]

The Attorney–Client Privilege Between Newby and Mitchell

*24 The attorney-client privilege has been referred to has the “bedrock principle of the adversary system.” United States v. Lentz, 419 F.Supp.2d 820, 826 (E.D.Va.2005). Under federal law, the attorney-client privilege is known as the oldest of the privileges for confidential communications. United States v. Zolin, 491 U.S. 554, 562, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989) (internal citation omitted). However, this privilege attaches only to those “communications made in confidence to an attorney by that attorney's client for the purposes of securing legal advice or assistance.” In re Grand Jury Investigation, 842 F.2d 1223, 1224 (11th Cir.1987) (citations omitted). The privilege does not apply when the attorney is acting in a ministerial capacity, or as a business agent, rather than a legal adviser. United States v. Huberts, 637 F.2d 630, 640 (9th Cir.1980). Moreover, when communications between a client and his attorney are made in furtherance of a future crime or fraud, the attorney-client privilege ceases to apply to those communications. Zolin, 491 U.S. at 562–63.

In this case, Defendant seeks to suppress all records taken from the law office of Amy Newby, all communications made by the Defendant to Amy Newby, and all records taken from the two cellular phones and the two iPads seized by law enforcement from either Defendant's person or vehicle. Despite Mitchell's allegations to the contrary, the United States has made it clear that no records were obtained from Amy Newby's law office and no records were obtained from either Newby's brother or mother who worked in the office with her (Tr. 2 at 46–51, 79). Thus, the request to suppress any evidence obtained from Newby's office is rendered moot. Of the two cell phones that went into the inmate property room at the Duval County Jail, one was an iPhone and the other was not. There has been no evidence introduced to suggest any information was obtained from the cell phone that was not an iPhone. The Court is therefore left to consider the question of suppression as to the information obtained from the iPhone and the two iPads, for which Ms. Newby gave her consent to search, and the recorded communications between Newby and Mitchell.

The Recorded Inmate Calls

Mitchell asserts all the communications between himself and Amy Newby are protected under the attorney-client privilege. The undersigned finds Mitchell's claim overstates the extent of the attorney-client privilege.

Testimony during the two evidentiary hearings establishes that Newby was Mitchell's attorney, plausibly until February 3, 2011 (see, e.g., Tr. 2 at 12). However, the record also establishes that Mitchell's calls to Newby on December 31, 2010 and January 1, 2011 were made from the Duval County Jail, which has an established policy of recording all outgoing inmate calls and of monitoring many such calls (Tr. 1 at 221; Tr. 2 at 89, 103). The beginning of every outgoing inmate call is prefaced with a pre-recorded message advising the call will be recorded and third party calls are not allowed (Tr. 2 at 89, Docs. # 134–1, # 134–2). The policy is also stated in the inmate handbook (Tr. 2 at 103). Attorneys have the option of exempting their telephone numbers from the recorded calls (Tr. 2 at 103–08). Having heard the prerecorded statement at the beginning of each outgoing call, both Newby and Mitchell were aware their phone calls would be recorded. In fact, Newby was required to consent to the terms of the call being recorded by dialing a number on her phone before the call would be put through (see, e.g., Doc. # 134–1).

*25 The extent of the attorney-client privilege is circumscribed by the caveats that the communication must be for the purpose of obtaining legal advice and the communication must have been intended to remain confidential between the client and the attorney. See In re Grand Jury Investigation, 842 F.2d at 1224. “The burden of establishing the applicability of the attorney-client privilege rests on the party seeking to assert it.” In re Grand Jury Proceedings, 616 F.3d 1172, 1183 (10th Cir.2010) (internal quotation marks and citations omitted). Thus, Mitchell must establish that his recorded calls to Newby were made by him as the client to his attorney for the purpose of obtaining legal advice or services, with the reasonable expectation that the calls would remain confidential between himself and Newby. See United States v. Noriega,917 F.2d 1543, 1550 (11th Cir.1990). For the privilege to apply, Newby must have been acting in her capacity as a lawyer and the communication must not have been related to the commission of a crime or tort. See id.

Under 18 U.S.C. § 2511, no mechanical, electronic, or other device may be used to intentionally intercept any wire communication, including telephone calls, unless a court order has been obtained permitting the intrusion or another statutory exception applies. United States v. Freeman, No. 09–80104–CR, 2010 WL 989227, at *6 (S.D.Fla. Mar.16, 2010). The exceptions possibly applicable in this circumstance would be the monitoring and recording of calls by a law enforcement agency in the normal course of its duties or consent to the monitoring and recording. See id. at *7. As jail officers are also law enforcement officers, the monitoring and recording of outgoing inmate calls pursuant to established policy is within the normal course of the officers' duties. Id. The consent to the policy by the inmates may be implied or explicit. See id.

Inmate calls made to outside attorneys frequently lose the protection of the attorney-client privilege due to routine recording of such calls, unless measures to protect the attorney-client confidentiality are taken. Courts have often found that “the presence of the recording device is the functional equivalent of the presence of a third party, such that the attorney-client privilege is destroyed.” United States v. Walker, No. 2:10cr186–MHT(WO), 2011 WL 2728460, at *2 (M.D.Ala. Jul. 13, 2011) (internal citation and quotation marks omitted). Moreover, when an inmate knows, or has reason to know, that a call made to outside counsel call will be recorded, the inmate loses any reasonable expectation of privacy in that call. See Black v. Attorney General, No. 6:08–cv–784–Orl–35GJK, 2010 WL 4595661, at *3–4 (M.D.Fla. Nov.3, 2010) (petitioner for habeas corpus relief on basis of ineffective assistance of counsel had no objectively reasonable expectation of privacy in telephone call since he was warned by automated message that his calls were subject to monitoring and he continued the call involving both his attorney and sister despite the warning).

*26 Here, Mitchell was no stranger to policy and procedure at the Duval County Jail, as he had been previously detained there in July 2010 (Tr. 1 at 30). Detective Bisplinghoff testified he had listened to “hundreds of calls of Mr. Mitchell from our jail” (Tr. 1 at 49). Newby had visited Mitchell at this facility numerous times and, thus, would be at least somewhat familiar with the policies and procedures governing inmate conduct and attorney-client interaction (see Tr. 1 at 220). The two calls placed to Newby contained the automated message stating the calls would be recorded (Docs.# 134–1, # 134–2). Both individuals having heard the automated message, and Newby's action of affirmatively pressing a phone key to accept the calls, obviates any reasonable expectation of privacy between the attorney and client in these two calls because Newby and Mitchell each knew the calls were being recorded. Furthermore, Mitchell and Newby implicitly consented to the recording of the calls by continuing the conversations despite the warning.[15]

Even if the Court were to find Mitchell had a reasonable expectation of privacy in the calls made to Newby, the United States argues and the undersigned agrees, the content of the calls suggests the crime-fraud exception to attorney-client privilege would apply. “[T]he attorney-client privilege does not protect communications made in furtherance of a crime or fraud.” In re Federal Grand Jury Proceedings, 89–10(MIA),938 F.2d 1578, 1581 (11th Cir.1991) (internal quotations and citation omitted). For the crime-fraud exception to apply:

First, there must be a prima facie showing that the client was engaged in criminal or fraudulent conduct when he sought the advice of counsel, that he was planning such conduct when he sought the advice of counsel, or that he committed a crime or fraud subsequent to receiving the benefit of counsel's advice. Second, there must be a showing that the attorney's assistance was obtained in furtherance of the criminal or fraudulent activity or was closely related to it.

Id. The content of the December 31 phone call indicates Mitchell directed Newby to “wipe [his] phone as quickly” as she could using the MobileMe application and she complied with the request (Doc. # 134–1 at 2–3). Under the circumstances of an ongoing investigation for fraud, the actions of Mitchell and Newby in this regard are reasonably construed as possible destruction of evidence. Mitchell directed Newby to place a third party call to another individual, which Newby did despite the warning that three-way calling was prohibited (Doc. # 134–1 at 6–8). On the three-way call, Newby falsely told the other lady that Mitchell was out of the country and Newby relayed Mitchell's request that the “package” from USAA be cancelled and she should have USAA “rewrite another one” (Doc. # 134–1 at 6–8). It would appear Mitchell was trying to have Almashea write another check. As the evidence introduced during the first hearing demonstrates that a USAA teller check was recovered from the Maserati (Gov't Ex. 10), and the lady on the three-way call, Almashea, was identified as a potential victim of Mitchell's fraudulent scheme (Tr. 1 at 119–20), the actions discussed in this phone call are reasonably construed as actions taken in furtherance of the alleged fraud.

*27 In summary, Mitchell made telephone calls to his attorney discussing, inter alia, matters in furtherance of the alleged fraud, when he knew the calls would be recorded by the corrections officers at the jail and he continued with the calls despite that knowledge. Mitchell waived all reasonable expectation of privacy in the phone calls to Newby, which were undertaken, at least in part, to further criminal activity in which Newby assisted. Thus, the calls should not be suppressed under the crime-fraud exception to the attorney-client privilege. Neither should the calls be suppressed since the recordings were made in the normal course of the officers' duties at the jail and Mitchell had full knowledge his calls were not confidential and were, in fact, being recorded.[16]

Consent to Search the iPhone and iPads

As a threshold matter, Mitchell must establish a legitimate right of privacy in the electronic devices he claims were illegally searched. See Rakas v. Illinois, 439 U.S. 128, 148–49, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); United States v. Hastamorir, 881 F.2d 1551, 1559–60 (11th Cir.1989). Yet, the scope of an individual's privacy rights in objects such as cell phones and computer tablets is not well defined. See City of Ontario, California v. Quon, –––U.S. ––––, ––––, 130 S.Ct. 2619, 2629, 177 L.Ed.2d 216 (2010) (“The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment ...”); United States v. Cole, No. 1:09–CR–0412–ODE–RGV, 2010 WL 3210963, at *16 (N.D.Ga. Aug.11, 2010) (the “exact nature and extent” of an individual's reasonable expectation of privacy in the information stored on cell phones remains a subject of debate). In fact, the scope of an individual's rights who possesses these items is even less clear than the scope of one who owns them. See Rakas, 439 U.S. at 152 (Powell, J., concurring) (in “considering the reasonableness of asserted privacy expectations ... the Court has examined whether the person invoking the protection of the Fourth Amendment took normal precautions to maintain his privacy”); Hastamorir, 881 F.2d at 1559 (citing United States v. Hawkins, 681 F.2d 1343, 1344 (11th Cir.1982), for the standard that the court must determine whether the individual has a reasonable and legitimate expectation of privacy in the article at the time of the search, and consequently whether the Fourth Amendment was actually violated) (emphasis added). What is clear, however, is that the Court must consider the totality of the circumstances in determining the legitimacy of asserted privacy rights and the propriety of authority when one individual consents to search an object, to which another individual may have an objection to the search. See United States v. Zapata, 180 F.3d 1237, 1241 (11th Cir.1999) citing Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (the court will look at the totality of the circumstances in assessing the voluntariness of the given consent).

*28 In this case, Amy Newby gave the officers consent to search the iPhone obtained from Mitchell's person on the day of his arrest and the two iPads that were removed from the Maserati with the inventory search (Tr. 1 at 104–06). Newby represented to Lomonaco and Bisplinghoff that she purchased and owned these items (Tr. 1 at 27, 128–29, 206–07). Mitchell confirmed Newby's ownership of the iPads (Doc. # 134–5 at 1–2) and independently told Lomonaco he could search the iPhone and the iPads (Doc. # 134–4 at 4; Doc. # 134–5 at 2). Mitchell claims the seizure of these items was illegal and contests the validity of the consents to search these items (Tr. 2 at 50–51). First Motion at 2–3. The crux of Mitchell's argument appears to hinge on his assertion that Newby's consent to search was not voluntarily made (Tr. 1 at 204–05).

“To determine whether an individual may challenge a search, the court must decide whether the individual maintains a legitimate expectation of privacy in the object of the search.” United States v. Acosta, 807 F.Supp.2d 1154, 1264 (N.D.Ga.2011) (quoting Hastamorir, 881 F.2d at 1559). To establish a legitimate expectation of privacy in the iPhone and the iPads, Mitchell must prove he had a subjective expectation of privacy in the electronic devices that society is willing to accept as legitimate. See Acosta, 807 F.Supp.2d at 1264. Possession of the object of a search may establish a subjective expectation of privacy in the object, but the expectation may or may not be one that society is willing to recognize as legitimate. Rakas, 439 U.S. at 151 (Powell, J., concurring) (“Only legitimate expectations of privacy are protected by the Constitution.”); see also United States v. Miravalles, 280 F.3d 1328, 1331 (11th Cir.2002) (an expectation of privacy is protected by the Fourth Amendment only if society is prepared to recognize that expectation as objectively reasonable); United States v. Crisp, 542 F.Supp.2d 1267, 1275–83 (M.D.Fla.2008) (determining driver of rented vehicle who was not an authorized driver under the rental agreement and whose license had been revoked had a subjective expectation of privacy in the vehicle that was not a legitimate expectation of privacy under the totality of the circumstances).

When considering an expectation of privacy and authority to consent to search electronic devices such as cell phones, some courts have concluded the cell phone “itself warrants Fourth Amendment protections due to the nature of the privacy expectations bestowed on it by its owner and the public generally.” United States v. Gomez, 807 F.Supp.2d 1134, 1140–41 (S.D.Fla.2011) (citing United States v. De La Paz, 43 F.Supp.2d 370, 372 (S.D.N.Y.1999) and United States v. Finley, 477 F.3d 250, 259 (5th Cir.2007)). In Gomez, the court determined the initial, warrantless search of the defendant's cell phone was valid under the incident to arrest exception. Id. at 1142–50. In the instant case, however, the searches of the iPhone and iPads were not made incident to the arrest of Mitchell, but were made after the arrest, subsequent to the consent given by Newby, and most likely prior to the consent given by Mitchell (see Tr.1 at 128).[17] Nevertheless, Mitchell did not take any precautions to keep the contents of the iPhone and the iPads confidential. In fact, Mitchell told Lomonaco, “I never put a passcode on mine” and “I don't never waste time with passcodes” (Doc. # 134–4 at 4; Doc. # 134–5 at 2). Thus, irrespective of whether Mitchell had a legitimate expectation of privacy, the Court must determine the validity of the consent obtained from Amy Newby as the professed owner of the iPhone and iPads.

*29 The voluntariness of a consent must be judged in light of the totality of all the circumstances on a case-by-case basis. Schneckloth, 412 U.S. at 226–27. Among the relevant facts to be considered are the suspect's custodial status, the presence of coercive police procedure, the extent and level of cooperation with the police, the individual's awareness of his right to refuse to consent to the search, the individual's education and intelligence, the existence of advice as to the nature of the constitutional right implicated, the length of the detention before consent, and the subjective state of the person who consents. See Zapata, 180 F.3d at 1241 (discussing factors for voluntariness of consents under Schneckloth); Tukes v. Dugger, 911 F.2d 508, 517 (11 th Cir.1990), cert. denied, 502 U.S. 898, 112 S.Ct. 273, 116 L.Ed.2d 225 (1991)(internal citations omitted) (discussing what the court should consider in assessing the voluntariness of a consent to search given by the defendant). The consent need not be “knowing,” in the sense that a person must be told of the right to refuse to consent; rather, the lack of advice of the right to refuse consent is a factor to be considered by the Court. Schneckloth, 412 U.S. at 226–234. The appropriate inquiry is whether “a reasonable [innocent] person would feel free to decline the officers' requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429,436 (1990).

In the context of warrantless searches involving objects other than electronic devices, courts have recognized both the person in possession of the object to be searched and the owner of the object to be searched may validly consent to the search. For example, in United States v. Harris, the Eleventh Circuit upheld the trial court's denial of the defendant's motion to suppress evidence of the gun found in the warrantless search of the taxi cab in which the defendant was riding. 526 F.3d 1334 (11th Cir.2008). Reasoning, without deciding, that the defendant may have had a reasonable expectation of privacy in the cab, the cab driver's consent to search the vehicle was nonetheless valid as there was “common authority over or other sufficient relationship to the premises or effects sought to be inspected.” Id. at 1338–39(internal quotation marks and citation omitted).

In United States v. Dominguez–Ramirez, No. 5:06–CR–6–OC–10GRJ, 2006 WL 1704461 (M.D.Fla. Jun.8, 2006), during an interview with law enforcement the defendant gave a conditional consent to search the marital home, while the defendant's wife gave a general consent to search when the officers arrived at the residence. The Dominguez–Ramirez court determined the wife's unconditional consent was valid, finding there was no evidence of coercive police tactics and despite minor conflicts between the wife's testimony and the officers' testimony, the wife was present in the home when the search was conducted and she had clearly signed an “easy to understand” consent form while the officers were still on the premises, although it was signed after the search had been completed. Id. at *6–8.

*30 Here, as in Harris, the Court need not determine the scope of Mitchell's asserted privacy rights insofar as the authority of Newby to consent to the searches is found valid and well established. “An owner of a cell phone generally has a reasonable expectation of privacy in the electronic data stored on the phone.” United States v. Quintana, 594 F.Supp.2d 1291, 1299 (M.D.Fla.2009) (internal citation omitted). As either the owner or a person with common authority over iPhone and iPads, Newby's authority to consent was valid if knowingly and voluntarily given. See Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (search for specific objects in a person's home not subject to warrant requirement if owner of the property to be seized or third party with common authority over the premises voluntarily consents to the search); United States v. Buckner, 473 F.3d 551 (4th Cir.2007) (finding defendant's wife had actual authority to consent to search non-password protected areas of home computer leased in her name and apparent authority to consent to search areas protected by defendant's passwords, if any). It is axiomatic that an owner of objects such as the iPhone and the iPads in question has a legitimate privacy interest in her personal property. See Quintana, 594 F.Supp.2d at 1299; see also United States v. Cole, No. 1:09–CR–412–ODE–RGV, 2010 WL 3211027, at *15 (N.D.Ga. May 12, 2010) (courts have recognized a reasonable expectation of privacy regarding the information stored in cell phone); United States v. Sereme, No. 2:11–CR–97–FtM–29SPC, 2012 WL 1757702, at *9 (M.D.Fla. Mar.27, 2012)(noting in dicta that an individual does not have a privacy interest in a cell phone that was not registered in his name or used by him); United States v. Suarez–Blanca, No. 1:07–CR–0023–MHS/AJB, 2008 WL 4200156, at *7 (N.D.Ga. Apr.21, 2008) (collecting cases finding an individual who is not linked to the subscriber of a cell phone has no legitimate privacy interest in that phone).

Moreover, even if Newby did not have actual authority to consent to the searches, the undersigned finds the facts of the case more than adequately demonstrate she had apparent authority upon which the officers could reasonably rely. See Rodriguez, 497 U.S. at 185–86. There is no indication in this case that Newby was threatened or coerced into giving consent to search the disputed devices. Although Newby may have been the target of a Florida Bar investigation at the time she gave consent to search the iPhone and iPads, and she may even have been a person of interest in the federal investigation of Mitchell's alleged fraud, the evidence of record establishes she knowingly and willingly gave her consent to search these items.

No evidence was presented that suggests to the Court that Newby was led to believe cooperation in Mitchell's case would impact her apparent legal issues in any way. Newby was a licensed attorney when she gave consent to search and there is no challenge that she did not understand the nature of her consent either when given verbally or in signing the Consent to Search Computer Equipment form. Under the totality of the circumstances, the Court finds Newby's consent to search the iPhone and iPads was knowingly and voluntarily made. Thus, the subsequent search of these items was valid and any evidence obtained therefrom should not be suppressed.

V. Recommendation

*31 Thus, for the above discussed reasons, the undersigned respectfully recommends Defendant's motions to suppress evidence (Docs.# 52, # 55) be DENIED.

DONE AND ENTERED at Jacksonville, Florida this 21st day of August, 2012.

I. Status

This case is before the Court on the Authorized Third Motion to Suppress, filed by Defendant Donald Mitchell (Doc. # 189, “Third Motion). The Third Motion seeks suppression of “all communications made by the Defendant to Michele Taylor, Attorney at Law, during the course of and in anticipation of the representation of the Defendant” and “all evidence obtained subsequent to the aforesaid seizure and testimony as fruits of the poisonous tree.” Third Motion at 1. The Government has responded in opposition to the sought relief (see Doc. # 191, “Gov't Response”).

The Third Motion was referred to the undersigned by the Honorable Marcia Morales Howard for issuance of a report and recommendation.[18] The Court held evidentiary hearings on December 19, 2012 and January 9, 2013. Transcripts of the proceedings have been filed (Docs. # 200 and # 209) (hereinafter referred to as “Tr. 1” and “Tr. 2”, followed by the appropriate page number).[19]

Upon consideration of the argument from counsel and the evidence presented, the undersigned recommends the Authorized Third Motion to Suppress be denied.

II. Background

Prior to indictment on the current federal criminal charges, Defendant Donald Mitchell (hereinafter referred to as “Defendant” or “Mitchell”) had been arrested and incarcerated in Duval County Jail on grand theft charges filed by the State of Florida in December 2010. See First Report and Recommendation at 4–9. From April 2010 through at least January 2011, Mitchell's attorney was Ms. Amy Newby in Jacksonville, Florida. Id. at 4. On December 28, 2010, Mitchell was arrested on the warrants issued for the grand theft charges. Id. at 6. Information obtained from a joint investigation into Mitchell's activities by the Jacksonville Sheriff's Office, the Federal Bureau of Investigation and the United States Secret Service from July 2010 and beyond eventually led to the federal charges against Mitchell for fraud violations. Id. at 5. Evidence obtained through the joint investigation, and as a result of the December 28, 2010 arrest, forms the basis for Mitchell's motions to suppress.

On September 29, 2011, a grand jury returned a seven count Indictment (Doc. # 1) charging with mail fraud, conspiracy to commit mail fraud, and wire fraud, in violation of Title 18, United States Code, Sections 1341, 1343, and 1349. The Indictment also alleges there is property, real or personal, that is subject to forfeiture pursuant to Title 18, United States Code, Section 981(a)(1)(C) and Title 28, United States Code, Section 2461(c). The nature of the alleged fraud centers around an investment scheme devised, or intended to be devised, by Mitchell. A Superseding Indictment was returned on April 25, 2012 (Doc. # 89) and a Second Superseding Indictment (Doc. # 146) was returned on August 29, 2012. That Indictment reduced the number of counts, although the same statutory violations remain as were alleged in the original Indictment, and added Ms. Amy Newby, Esq., as a co-defendant.

*32 Prior to the appointment of his current legal counsel, Mitchell was represented in this case by an Assistant Federal Public Defender and another private attorney appointed under the Criminal Justice Act, 18 U.S.C. § 3006A.[20] The first Criminal Justice Act attorney filed the two earlier motions to suppress evidence (Docs.# 52, # 55). The Court held evidentiary hearings on those motions, with current defense counsel, and issued the First Report and Recommendation (Doc. # 144) to deny those motions to suppress. One of the issues included in the First Report and Recommendation was whether the recording of telephone conversations Mitchell had with attorney Newby, while in jail on December 31, 2010 and January 2, 2011, violated his attorney client privilege. The Court concluded that it did not. First Report and Recommendation at 9–10, 19–25.

Now, Defendant seeks to suppress any statements recorded in telephone conversations between himself and attorney Michelle Kalil Taylor (“Taylor”) during Defendant's incarceration on State charges in April 2011. See generally, Third Motion. Defendant claims those conversations are privileged, raising two new issues concerning (1) a State court order allowing him to make telephone calls to try to obtain new counsel and (2) specific comments Taylor made that implied their telephone conversations were privileged. Third Motion at 2. The United States argues the recorded conversations fall outside the ambit of attorney-client privilege. See generally, Gov't Response. The undersigned finds the recorded phone calls are not privileged.

Upon consideration of all the evidence presented and the arguments made, the Court makes the following findings of fact and conclusions of law.

III. Findings of Fact

On December 28, 2010, Donald Mitchell was arrested on two outstanding state warrants for grand theft. By that date, Mitchell had already come to the attention of local and federal law enforcement officials due to the monitoring of Mitchell's outgoing phone calls from the Duval County Jail that had begun in either July or August 2010. See First Report and Recommendation at 5. In January 2011, Mitchell posted bond on the grand theft charges and was released from jail. Gov't Response at 1. On February 7, 2011, Mitchell failed to appear for a court hearing on those charges, so a failure to appear warrant was issued. Mitchell was again arrested and transported back to the Duval County Jail on February 18, 2011. On April 13, 2011, the judge in Mitchell's state cases entered an order directing personnel at the Duval County Jail to allow Mitchell telephone and visitation privileges in order to contact possible new defense counsel in the grand theft cases. See Defendant's Ex. 3.

Mitchell later made contact with attorney Michelle Taylor, but Taylor testified she was never retained as Mitchell's legal counsel (Tr. 1 at 8). According to Taylor, Mitchell told her he was wealthy and he had friends of his contact her to verify he was financially able to retain her. Id. at 8–9. Taylor testified she had contact with Mitchell for approximately two weeks in April 2011. Id. Taylor saw Mitchell in person at the jail and had contact with him by telephone. Id. The United States intends to use, and Mitchell seeks to suppress, the two phone calls initiated by Mitchell from the Duval County Jail to Michelle Taylor on April 29, 2011.

*33 Calls made by inmates from the Duval County Jail to the outside world are routinely recorded. See First Report and Recommendation at 10. There is a prerecorded warning at the initiation of all calls from inmates in the jail that states the call is being recorded. Telephone communications between inmates and their attorneys can be exempted from the recording if the attorney requests to have his or her calls removed from the recording list. The removal from the recording list is based on the telephone number provided by the attorney to the jail custodian for the audio records. Generally, the telephone number provided by the attorney permanently remains as an exempt phone number from recorded calls. See id.

In August 2011, Mitchell pled guilty to one of the State's grand theft charges, and the second grand theft charge was thereafter dropped. First Report and Recommendation at 13. In September 2011, Mitchell was indicted by a federal grand jury on fraud charges (Doc. # 1). Subsequently, two superceding indictments were returned. The Second Superseding Indictment (Doc. # 146) alleges mail fraud and conspiracy to defraud by Mitchell and by Mitchell's former attorney, Amy Newby, whom he had retained to represent him on the grand theft charges referenced herein.

IV. Analysis and Conclusions of Law

Motions to suppress evidence relevant to a criminal trial present mixed questions of law and fact for the court's determination. United States v. Tobin, 923 F.2d 1506, 1510 (11th Cir.1991) (internal citations omitted). The individual moving for suppression of evidence bears the initial burden of persuading the court, through specific factual allegations and supporting evidence, that seizure of the evidence was illegal and that the evidence should therefore be suppressed. United States v. Ross, 827 F.Supp. 711, 716 (S.D.Ala.1993) (citations omitted). “Once the movant has established a basis for his or her motion, the burden then shifts to the government to prove by a preponderance of the evidence that the seizure of evidence was legally and factually justified.” Id. A circuit court of appeals reviews the district court's findings of fact under the clearly erroneous standard, but application of the law to those facts is subject to de novo review. Tobin, 923 F.2d at 1510.

The Attorney–Client Privilege Between Taylor and Mitchell

The attorney-client privilege has been referred to has the “bedrock principle of the adversary system.” United States v. Lentz, 419 F.Supp.2d 820, 826 (E.D.Va.2005). Under federal law, the attorney-client privilege is known as the oldest of the privileges for confidential communications. United States v. Zolin, 491 U.S. 554, 562, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989) (internal citation omitted). However, this privilege attaches only to those “communications made in confidence to an attorney by that attorney's client for the purposes of securing legal advice or assistance.” In re Grand Jury Investigation, 842 F.2d 1223, 1224 (11th Cir.1987) (citations omitted). The privilege does not apply when the attorney is acting in a ministerial capacity, or as a business agent, rather than a legal adviser. United States v. Huberts, 637 F.2d 630, 640 (9th Cir.1980). Moreover, when communications between a client and his attorney are made in the presence of a third party, the attorney-client privilege generally ceases to apply to those communications. United States v. Bennett, No. CR609–067, 2010 WL 4313905, *5 (S.D.Ga. Oct.5, 2010) (citing In re Grand Jury Proceedings, 78 F.3d 251, 254 (6 th Cir.1996) and United States v. Gann, 732 F.2d 714, 723 (9th Cir.1984)).[21]

*34 The person invoking the privilege has the burden of proving its existence. In re Grand Jury Investigation, 842 F.2d at 1225 (citation omitted). “The privilege must be strictly construed and accepted only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.” In re Grand Jury Proceedings, 616 F.3d 1172, 1183 (10th Cir.2010) (citation and internal quote marks omitted); see also In re Grand Jury Investigation, 842 F.2d at 1225.

The Recorded Inmate Calls

Mitchell asserts all recorded calls between himself and Taylor are protected under the attorney-client privilege. Here again, the undersigned finds Mitchell's claim overstates the extent of the attorney-client privilege.

Testimony during the two evidentiary hearings on the Third Motion establishes that Taylor and Mitchell communicated about possible legal representation, but Taylor was not actually retained (Tr. 1 at 8). The record also establishes that Mitchell's calls to Taylor on April 29, 2011 were made from the Duval County Jail, which has an long standing policy of recording all outgoing inmate calls. See First Report and Recommendation at 10 (internal citations omitted). The beginning of every outgoing inmate call is prefaced with a pre-recorded message advising the call will be recorded and third party calls are not allowed. See, e.g., Gov't Ex. 1A, Gov't Ex. 2A. The policy is also stated in the inmate handbook. Defendant Ex. 1. Attorneys have the option of exempting their telephone numbers from the recorded calls. See id. Having heard the prerecorded statement at the beginning of each outgoing call, both Taylor and Mitchell were aware their phone calls would be recorded. In fact, Taylor was required to consent to the terms of the call being recorded by dialing a number on her phone before the call would be put through. See Gov't Ex. 1A at 1 (reflecting number on phone pressed to accept the call).

Taylor testified she had no knowledge of the long standing policy that private attorneys may exempt their calls with clients from jailhouse recording if the attorney puts a telephone number on record with the Duval County Jail as an exempt number (Tr. 1 at 14–16).[22] During the course of the earlier call on April 29, Taylor presumably starts to tell Mitchell that their call falls under the attorney-client privilege when Mitchell interrupts her and says, “Oh God they don't care about that” (Tr. 1 at 2). Taylor responds by implying that “just like” calls to the Public Defender's Office, other outgoing inmate calls to attorneys may not be used by law enforcement because the calls are privileged. See id.

The extent of the attorney-client privilege, however, is circumscribed by the caveats that the communication must be for the purpose of obtaining legal advice and the communication must have been intended to remain confidential between the client and the attorney. See In re Grand Jury Investigation, 842 F.2d at 1224. “The party invoking the attorney-client privilege has the burden of proving that an attorney-client relationship existed and that the particular communications were confidential.” United States v. Schaltenbrand, 930 F.2d 1554, 1562 (11 th Cir.1991); United States v. Gordon–Nikkar, 518 F.2d 972, 975 (5th Cir.1975).[23] Thus, Mitchell must establish that his recorded calls to Taylor, were made by him as the client to his attorney for the purpose of obtaining legal advice or services, with the reasonable expectation that the calls would remain confidential between himself and Taylor. See United States v. Noriega, 917 F.2d 1543, 1550 (11th Cir.1990). For the privilege to apply, Taylor must have been acting in her capacity as a lawyer. See id.

*35 Inmate calls made to outside attorneys frequently lose the protection of the attorney-client privilege due to the routine recording of such calls, unless measures to protect the attorney-client confidentiality are taken. Courts have often found that “the presence of the recording device is the functional equivalent of the presence of a third party, such that the attorney-client privilege is destroyed.” United States v. Walker, No. 2:10cr186–MHT(WO), 2011 WL 2728460, at *2 (M.D.Ala. Jul. 13, 2011) (citing United States v. Hatcher, 323 F.3d 666, 674 (8 th Cir.2003)). Furthermore, when an inmate knows, or has reason to know, that a call made to outside counsel call will be recorded, the inmate loses any reasonable expectation of privacy in that call. See Black v. Attorney General, No. 6:08–cv–784–Orl35GJK, 2010 WL 4595661, at *3–4 (M.D.Fla. Nov.3, 2010) (finding petitioner for habeas corpus relief on basis of ineffective assistance of counsel had no objectively reasonable expectation of privacy in telephone call since he was warned by automated message that his calls were subject to monitoring and he continued the call involving both his attorney and sister despite the warning); United States v. Landers, No. 1:12–CR–88–TWT–GGB, 2012 WL 6214627, *4 (N.D.Ga. Nov.7, 2012) (collecting cases on recorded inmate phone calls not protected by a privilege). Also see, e.g., United States v. Delibro, 347 Fed. Appx. 474, 475 (11 th Cir.2009) (per curiam) (finding no error with the district court's denial of the defendant's motion to suppress because the defendant lacked a reasonable expectation of privacy in conversations known to be actively monitored in a police station).[24] Here, Mitchell's exclamation, “Oh God they don't care about that!” and his earlier statement, “I want to go over something with you real quick without saying too much,” demonstrate his foreknowledge that calls he initiated from inside the jail would be recorded, and thus were not private for any purpose. See Gov't Ex. 1A.

Moreover, the calls at issue do not appear to have been made to obtain legal advice or services. In a singular moment, mid-way through the first call, Mitchell inquired of Taylor “how easy” she thought his case might be in court. Id. at 4. Taylor responded only that she didn't “have enough information yet” when the conversation turns back to an individual Mitchell had requested Taylor contact. Id. In view of the surrounding facts, this brief inquiry is insufficient to raise the veil of attorney-client privilege over the call.

The subject matter of the calls would be wholly unclear to a reasonable person with no prior knowledge of Mitchell's history. The content of the calls make it clear that Mitchell and Taylor were previously acquainted. See, e.g., Gov't Ex. 1A at 1–2. The substance of the calls involves Taylor's communications with individuals Mitchell apparently requested she contact, and a third party call in which Taylor connects to another person on a separate phone and then speaks as an intermediary between Mitchell and that person. See generally, Gov't Ex. 1A and Gov't Ex. 2A. Giving a very liberal construction to the content of the two calls to Taylor, the Court finds those calls could conceivably concern arrangements for payment of legal fees between Mitchell and Taylor. However, with limited exception that does not apply in this situation, matters regarding the payment of attorney's fees are not privileged. See In re Grand Jury Matter No. 91–01386, 969 F.2d 995, 997–98 (11th Cir.1992).

*36 Additionally, Mitchell was no stranger to policy and procedure at the Duval County Jail, as he had been detained there in July 2010 and December 2010, prior to his re-incarceration in mid-February 2011. See First Report and Recommendation at 5–9, 22–23; Gov't Response at 1. Thus, Mitchell had been in and out of Duval County Jail on at least three occasions prior to indictment under the current federal charges. As least at early as February 2011, Mitchell knew his phone calls from the Duval County Jail were being recorded and monitored by law enforcement personnel.

Former Detective Dave Bisplinghoff, of the Jacksonville Sheriff's Office, testified during the May 31, 2012 evidentiary hearing that he had listened to “hundreds of calls of Mr. Mitchell from our jail.” See First Report and Recommendation at 6, 22. While on release from incarceration in early February 2011, Mitchell initiated at least two telephone calls to Special Agent Lawrence Lomonaco of the United States Secret Service (see Doc. # 134–3, Doc. # 134–4). In one of those calls, Mitchell and Lomonaco expressly discussed the fact Lomonaco was listening to some of Mitchell's “jail phone calls” (Doc. # 134–4).

The two calls placed to Taylor contained the automated message stating the calls would be recorded. Gov't Ex. 1A, Gov't Ex. 2A. Any reasonable expectation of privacy between the attorney and client in those two calls disappeared when Taylor and Mitchell heard the automated warning message and continued the conversations despite the knowledge the calls would be recorded. Moreover, by the time he made the April 29, 2011 outgoing calls to Ms. Taylor, Mitchell was well aware his jail calls were being recorded and reviewed by law enforcement personnel.[25] Mitchell implicitly consented to the recording of his phone calls from Duval County Jail by his continued use of the inmate phone system with the prerecorded warning.

Defendant's Reliance on the Court Order

Mitchell argues that the April 29 phone calls to Taylor are in a different posture than the December or January phone calls to Newby because Duval County Circuit Court Judge Russell Healy had issued an order on April 13, 2011, modifying some conditions of Mitchell's confinement. The second paragraph of that order states it is ordered and adjudged, “That the Duval County Jail shall immediately allow the Defendant, Donald H. Mitchell, to have telephonic privileges for the purpose of contacting possible new defense counsel to represent him in the above-styled cases.” Defendant's Ex. 3. Attorney Taylor testified that she had been in court when Mitchell raised the matter with Judge Healy (Tr. 1 at 22). “I think Mitchell raised to the Judge that he was unable to make phone calls from the jail. And so Judge Healy indicated that the only phone calls he would be allowed to make would be to try and retain an attorney” (Tr. 1 at 27).

The fact a judge ordered jail personnel to permit Mitchell to make outgoing calls in search of new legal representation does not alter Mitchell's knowledge that his calls were recorded, nor his knowledge that law enforcement personnel were reviewing his recorded calls. See Landers, 2012 WL 6214627 at *4 (finding inmates lose any privilege attached to recorded phone calls when inmate is aware of the recording beforehand). Moreover, nothing in the State judge's order gives any indication that he was overruling the jail policy on recording inmate calls, or that the jail should not record the calls Mitchell would be permitted to make. See Defendant's Ex. 3. The order simply permitted Mitchell to make calls that he previously had been restricted from making. Mitchell had no reasonable expectation of privacy in the phone calls to attorney Michelle Taylor that the United States seeks to introduce into evidence.

Defendant's Reliance on Attorney's Statements

*37 Arguably, attorney Taylor implied to Mitchell that their phone conversations, even if recorded, would be privileged. See Gov't Ex. 1A. Mitchell, however, may not rely on Ms. Taylor's statements to shield these phone calls from disclosure and potential use as evidence. While a client's reasonable beliefs may be relevant to application of the attorney-client privilege in some circumstances, such a circumstance is not present in this case. See In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 923–24 (8th Cir.1997) (discussing situations in which a client's reasonable, but mistaken, belief a conversation was within the attorney-client privilege would render the conversation confidential). Reasonable mistakes of fact, such as the belief that a “poseur was in fact a lawyer,” may protect a communication. Id. However, there is no authority “holding that a client's beliefs, subjective or objective, about the law of privilege can transform an otherwise unprivileged conversation into a privileged one.” Id. at 923. Similarly, an attorney's reasonable mistake of law does not apply in the realm of privileges to insulate a non-privileged conversation from disclosure. Id. at 923–24. Taylor's statement of “just like ... any calls to the P.D.'s office” is her mistaken assertion of the law surrounding the attorney-client privilege. Gov't Ex. 1A at 2.

Conclusion

In summary, Mitchell made at least two telephone calls to a person he knew to be a lawyer, when he knew the calls would be recorded by the corrections officers at the jail. Mitchell continued with the calls despite that knowledge. It is questionable whether the contested telephone calls were made to obtain legal advice or services, but Mitchell waived all reasonable expectation of privacy in the phone calls to Taylor. Thus, the calls should not be suppressed since the recordings properly were made in the normal course of the officers' duties at the jail and Mitchell had full knowledge his calls were not confidential and were, in fact, being recorded and reviewed by law enforcement officials.

V. Recommendation

For the above discussed reasons, the undersigned respectfully recommends Defendant Donald Mitchell's Authorized Third Motion to Suppress (Doc. # 189) be DENIED.

DONE AND ENTERED at Jacksonville, Florida this 22 ndday of February, 2013.

Footnotes

[1]

In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981), the Eleventh Circuit adopted as binding precedent decisions of the former Fifth Circuit (including Unit A panel decisions of that circuit) handed down prior to October 1, 1981. W.R. Huff Asset Mgmt. Co., L.L.C. v. Kohlberg, Kravis, Roberts & Co.,L.P.,566 F.3d 979, 985 n. 6 (11th Cir.2009). After October 1, 1981, “only the decisions of the continuing Fifth Circuit's Administrative Unit B are binding on this circuit....” Dresdner Bank AG v. M/V Olympia Voyager, 446 F.3d 1377, 1381 n. 1 (11th Cir.2006). The Court notes that the Fifth Circuit overruled Nettles, in part, on other grounds, in Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428–29 (5th Cir.1996) (en banc ). However, “that does not change the binding effect of Nettles in this Circuit because Douglass was decided after October 1, 1981, and was not a Unit B decision.” United States v. Schultz, 565 F.3d 1353, 1360 n. 4 (11th Cir.2009).

[2]

Both 28 U.S.C. § 636(b)(1) and Rule 59(b)(2) require a party wishing to object to a magistrate judge's recommendation to serve and file any objections within fourteen (14) days of being served with the magistrate's recommendation. Rule 59 further provides that a “[f]ailure to object in accordance with this rule waives a party's right to review.” Rule 59(b)(2).

[3]

See Rule 59 advisory committee notes (2005) (citing Peretz v. United States, 501 U.S. 923, 111 S.Ct. 2661, 115 L.Ed.2d 808 (1991)).

[4]

The Court will not repeat here the extensive factual background relevant to the Motions as it is in large part set forth in the First and Second Reports. To the extent Defendant objects to the Magistrate Judge's factual findings, or relies on facts not included in the Reports, the Court will address those objections and the relevant facts in its analysis below.

[5]

Bisplinghoff testified that at the time of Defendant's arrest he told Officer M.S. Lundquist, who assisted him with the arrest, that he “didn't want to have anything to do with what's in that car.” Tr. I at 15, 45–46. Bisplinghoff explained that he was familiar with Defendant's demeanor and how he “carries on” and that Defendant “was already making a big scene there.” Id. at 45–46. Bisplinghoff testified that he “was serving the two arrest warrants and that's all [he] was there to do.” Id. at 46. At the scene, Bisplinghoff turned Defendant over to Lundquist who then booked Defendant in to the Jacksonville Pretrial Detention Facility (the Jail). Id. at 14–16. Bisplinghoff also contacted the State Attorney's Office that same day and notified them that he had executed the arrest warrants and Defendant was in custody, but did not discuss the vehicle. Id. at 18. The following day, Bisplinghoff received a call from personnel at the Jail who informed him that they were monitoring Defendant's phone calls and that Defendant had expressed concerns about the vehicle. Id. at 18, 47. Bisplinghoff then relayed this information to the State Attorney's Office, and was instructed that, because the vehicle had the stolen tires on it, which Bisplinghoff confirmed, he should “tow the car, seize the car because it's got our stolen property on it.” Id. at 18, 47, 53–56.

[6]

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as binding precedent all the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.

[7]

Defendant adds that the detective's improper motive is further demonstrated by the fact that he made no attempt to inventory or memorialize the tires. This argument is not supported by the record. The tires were affixed to the Maserati which was secured in the warehouse. See Tr. I at 56–57. When the Maserati was released to its registered owner in February of 2011, Bisplinghoff had someone at the warehouse take pictures of the tires and send the pictures to him in an email prior to the vehicle's release. Id. at 57, 218–19, 226. Although Bisplinghoff did not send the pictures to the state attorney's office, he held on to the pictures as a precaution, reasoning that he would have them if the state needed them. Id. at 225–27. Bisplinghoff explains that the tires were not retained when the vehicle was released because “we didn't want to leave the people without transportation. The tires were now used, so we let the car go.” Id. at 219. In August of 2011, after Defendant pled guilty to separate charges, the state dropped the tire theft charge. Id. at 226. Bisplinghoff ended his employment with the sheriff's office in December 2011, and, seeing no reason to keep the pictures, left them in his email account there. He believes this email account was deleted following his departure, and therefore the pictures are no longer available. Id. at 57–58. Thus, contrary to Defendant's argument, the tires were secured in the warehouse, and then memorialized in pictures, until such time as the related charges against Defendant were dropped, actions which are consistent with Bisplinghoff's explanation that the tires were evidence of the theft.

[8]

In Whren, the Supreme Court noted two types of searches where the Court has considered an officer's subjective intent in determining the validity of a search: inventory searches and administrative inspections. Whren, 517 U.S. at 811. An administrative inspection is “the inspection of business premises conducted by authorities responsible for enforcing a pervasive regulatory scheme....” Id. at 811 n. 2. An inventory search is “the search of property lawfully seized and detained, in order to ensure that it is harmless, to secure valuable items (such as might be kept in a towed car), and to protect against false claims of loss or damage.” Id. at 811 n. 1. An inventory search must not be carried out in bad faith, for the sole purpose of investigation, or as a “ruse for a general rummaging in order to discover incriminating evidence.” Id. at 811. An officer's purpose in conducting a search and seizure matters in this context because “the exemption from the need for probable cause (and warrant), which is accorded to searches made for the purpose of inventory or administrative regulation, is not accorded to searches that are not made for those purposes.” Id. at 811–12.

[9]

Although Defendant moves to suppress the evidence taken from “two (2) cell telephones” seized at the time of Defendant's arrest, First Motion at 1, the Magistrate Judge found that “[t]here has been no evidence introduced to suggest any information was obtained from the cell phone that was not an iPhone.” See First Report at 20. Defendant did not object to this finding, and therefore, the Court will only address the search of the iPhone.

[10]

The Court notes that the Magistrate Judge mistakenly states in his Findings of Fact that the iPhone was found within the Maserati. See First Report at 11. This error appears to be inadvertent and harmless given that in the portion of the First Report discussing Newby's consent the Magistrate Judge correctly states that the iPhone was taken from Defendant's person on the day of his arrest. See First Report at 26.

[11]

Notably, Defendant presents no evidence to suggest that Newby did not have actual authority over the iPads. Indeed, on February 10, 2011, Defendant told Lomonaco that the iPads belonged to Newby. See May Hrg., Gov't Ex. 4B. Although Defendant relies on the fact that one of the iPads was locked with a security code, see First Objection at 5, Defendant's statements to Lomonaco demonstrate that the password was likely placed on the iPad remotely by Newby after it was seized, and that Defendant did not know the password. See May Hrg., Gov't Ex. 4B (“LL: Alright, what's your passcode? DM: Uh, I don't have one. [Newby] would have had to put a passcode on there when she locked it and wiped it ‘cause I don't never waste time with passcodes.”).

[12]

The Court notes that the government also presented evidence which suggests that Newby had previously attempted to remotely erase the contents of the iPhone and iPads. See June Hrg., Gov't Ex. 1; May Hrg., Gov't Ex. 4B. As such, when Newby gave her consent to the search, she likely believed that no information would be found on these devices, and thus, this factor also weighs in favor of a finding that her consent was voluntary.

[13]

Defendant does not object to the Magistrate Judge's finding that, to the extent Defendant seeks to suppress records obtained from Newby's law office, such a request should be denied as moot because no records were obtained from that location or from Newby's mother and brother who worked there. See First Report at 19–20; Tr. II at 46–49, 52. Accordingly, the Court will adopt this recommendation.

[14]

Alternatively, the Court concludes that Defendant did not have a reasonable expectation of privacy in the telephone calls in light of the unequivocal warnings that all calls were recorded. See United States v. Adams, 321 F. App'x 449, 462 (6th Cir.2009) (“[Defendants] could not have expected privacy where a message at the start of every telephone call informed the inmates that they had no right to privacy and that their conversation was being recorded and possibly monitored.”); Hill v. Donoghue, 815 F.Supp.2d 583, 588 (E.D.N.Y.2011); United States v. Speciale, No. 1:10CR61, 2011 WL 921614, at *5 (N.D.W.Va. Feb.9, 2011)(“Defendant was given advance notice that his phone calls would be monitored and recorded. By using the telephone knowing the calls would be recorded, Defendant could not possibly have had a reasonable expectation of privacy.”); United States v. Morris, No. 07–20, 2008 WL 5188826, at *3–4 (W.D.Pa. Dec.8, 2008).

[15]

The Court notes that in Watkins v. L.M. Berry & Co., 704 F.2d 577 (11th Cir.1983) the Eleventh Circuit cautioned against routinely implying consent to interception from the surrounding circumstances for purposes of the Wiretap Act. See Watkins, 704 F.2d at 581. The court instructed that “knowledge of the capability of monitoring alone cannot be considered implied consent.” Id. However, this case is distinguishable from Watkins in that the automated warning given to Defendant at the start of the calls was not that the calls might be or could be recorded, but unequivocally, that all calls were recorded. Cf. Watkins, 704 F.2d at 581 (finding no implied consent to monitoring of personal call where plaintiff expressly consented to the limited monitoring of business, not personal calls, and not a general policy of monitoring).

[16]

The remainder of the cases upon which Defendant relies to argue that he had a reasonable expectation of privacy simply because he was talking to his attorney are distinguishable for the same reason. See Lonegan v. Hasty, 436 F.Supp.2d 419, 435–36 (E.D.N.Y.2006) (stating that the defense attorneys were told that the video cameras in the Visiting Area were not recording their conversations with the detainees); Lanza v. State of New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962) (noting that the conversation at issue was recorded without the knowledge of the prisoner or his visitor); Sowards v. City of Milpitas, No. C–03–3036–JF, 2005 WL 1566540, at *3 (N.D.Cal. July 5, 2005) (stating that “[t]here is no indication in the record that [the officer] informed [the inmate] that he was going to tape record the conversation ...”); see also Evans v. Inmate Calling Solutions, No. 3:08–cv–00353–GMN–VPC, 2011 WL 7470336 (D.Nev. July 29, 2011) (holding that although it may have been unclear whether the inmate had an expectation of privacy because he was notified that “properly placed” legal calls would not be recorded, inmate's deposition testimony demonstrated that inmate believed the phone calls were recorded such that inmate fails to demonstrate a subjective expectation of privacy).

[17]

It appears Defendant may also contend that the communications between Newby and Defendant contained on the iPads and iPhone are protected by the attorney-client privilege. See Tr. II at 46–47. In the government's Second Response, the government contends that “communications obtained from the iPhone and iPad are not privileged because their disclosure was authorized by both Newby and Mitchell. See Second Response at 7. However, although Newby consented to the searches, her consent does not waive the privilege with respect to Mitchell. See In re von Bulow, 828 F.2d 94, 101 (2d Cir.1987) (“Of course, the privilege belongs solely to the client and may only be waived by him. An attorney may not waive the privilege without his client's consent.”); see also Noriega,917 F.2d at 1551 (“It is a bedrock principle that the attorney-client privilege is the client's and his alone.” (internal quotations omitted)). Although Defendant likely waived the privilege with respect to any communications on the iPads when he gave Lomonaco permission generally to “check” the iPads, see May Hrg., Gov't Ex. 4B, his purported consent to the search of the iPhone is arguably limited to the iPhone's history log for the purpose of obtaining a particular telephone number. See May Hrg., Gov't Ex. 4A. However, the Court need not resolve the issue of waiver because Defendant has failed to demonstrate that any communications on the iPhone or iPads would be privileged in the first place. Among other things, Defendant fails to show that the devices contain communications between Newby and Defendant that relate “to a fact of which the attorney was informed ... for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding....” Noriega, 917 F.2d at 1550; Schaltenbrand, 930 F.2d at 1562 (instructing that the party invoking the privilege must show that the communications made to an attorney were made to him “confidentially, in his professional capacity for the purpose of securing legal advice or assistance” (internal quotation omitted)). Defendant's blanket assertion of privilege with respect to all communications between Newby and Defendant is insufficient to invoke the privilege in the absence of any showing that the communications were intended to be confidential and “made for the purpose of securing legal advice.” See In re Grand Jury Subpoena, 831 F.2d 225, 227–28 (11th Cir.1987) (“[A] party cannot meet its burden of proof with a blanket assertion of privilege....”).

[18]

Because the Court concludes that Defendant fails to make the necessary showing of confidentiality required to invoke the privilege, the Court need not decide whether the crime-fraud exception applies to these communications.

[19]

Although Defendant argues in the Third Motion that the calls should be suppressed based only on the contention that they are privileged attorney-client phone calls, see Third Motion at 3, in his Second Objection, Defendant raises the argument that the calls were obtained in violation of the Wiretap Act and the Fourth Amendment. See Second Objection at 4–7. Although the Court has the discretion to do so, Stephens v. Tolbert, 471 F.3d 1173, 1174 (11th Cir.2006), the Court is not required to consider arguments not raised in the first instance to the Magistrate Judge. See Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir.2009). Here, Defendant gives no explanation for his failure to assert these arguments before the Magistrate Judge. Certainly, Defendant was aware of these arguments given that he previously raised them in his earlier Objections to the First Report, filed two months prior to the Third Motion to Suppress. First Objection at 13–20. Accordingly, the Court declines to consider Defendant's argument that the recording of Defendant's jail calls to Taylor violated the Fourth Amendment or the Wiretap Act. Regardless, even if the Court were to consider these arguments, the Court would find no violation of the Fourth Amendment or the Wiretap Act for the same reasons set forth above with respect to the jail calls to Newby. See supra at Part III.B.

[20]

It is unclear to the Court whether Taylor believed that, despite the automated warning, the conversation was not actually recorded, or, that the conversation was protected despite the recording. Tr. I II at 18. Taylor's confusion appears to stem from her experience working as a public defender prior to entering private practice. Id. at 14–15. When she worked at the Public Defender's Office, Taylor knew that her calls with clients “were excluded,” id. at 26, and her telephone conversations with clients had never been used against them. Id. at 20. However, while Taylor was a public defender, when she spoke with incarcerated clients she did not hear the automated warning in her calls. Id. at 26–27. In contrast, it is undisputed that she heard the automated warning at the beginning of her initial telephone conversation with Defendant. Id. at 26. Regardless, while Taylor may have been reasonably confused, these facts do not show that Defendant had any reason to believe that his telephone calls to Taylor would not be recorded.

[1]

As a matter of course, within fourteen (14) days after service of this document, specific, written objections may be filed in accordance with 28 U.S.C. § 636, Rule 59, Federal Rules of Criminal Procedure, and Rule 6.02, Local Rules, United States District Court, Middle District of Florida. Failure to file a timely objection waives a party's right to review. Fed.R.Crim.P. 59.

[2]

Hearings on the motions were delayed by Defendant's request for new counsel and the time needed for the new attorney to prepare.

[3]

Also contained within the record are the transcripts of telephone calls played during the evidentiary hearings (see Doc. # 134). The calls between attorney Amy Newby and Donald Mitchell, while Mitchell was incarcerated at the Duval County Jail on December 31, 2010 and January 1, 2011 are transcribed (Doc. # 134–1, # 134–2), as are the portions of the calls placed by Donald Mitchell to Special Agent Lawrence Lomonaco on February 9 and February 10, 2011 that were played during the hearings (Doc. # 134–3, # 134–4, # 134–5).

[4]

Since the arrest of Mitchell in December 2010, Detective Bisplinghoff has terminated his employment with the Jacksonville Sheriff's Office and has begun employment with the State Attorney's Office (Tr.1 at 9). Throughout the period of time relevant to Defendant's case, Bisplinghoff remained employed by JSO. See id. Therefore, to avoid confusion, the Court will refer to Bisplinghoff as either Detective Bisplinghoff or by his given name throughout this report and recommendation.

[5]

Detective Bisplinghoff testified the Maserati was towed by city wrecker to the impound warehouse (Tr. 1 at 198–99). Detective Gonzalez, who works at the impound warehouse and assisted in the inventory search of the vehicle, testified he could not remember the mode of transportation by which the Maserati came to be in the warehouse (Tr. 2 at 22). Of the two drivers who operate the city wreckers used to tow vehicles for the JSO, one testified he did not tow the Maserati and one testified he could not recall towing the Maserati, but normally an outside wrecker service would be used to tow “the more exotic cars” that “sit lower to the ground” (Tr. 2 at 33–39, 43–46). Detective Martin Chapman, who also is assigned to the city impound warehouse, testified review of the records revealed the Maserati had been towed to the warehouse by a city wrecker (Tr. 1 at 168).

The Court recognizes the mode by which the Maserati was transported to the city warehouse is the subject of dispute between the United States and Defendant. However, JSO standard policy provides that a vehicle may be either towed into the warehouse or driven to the warehouse by a law enforcement officer (Tr. 2 at 27–28). Thus, the method of moving the Maserati would not invalidate its removal to the warehouse to preserve evidence of a crime, nor would it invalidate the inventory search conducted at the warehouse. See, e.g., United States v. Laing, 708 F.2d 1568 (11th Cir.1983) (routine inventory search of impounded vehicle is reasonable when conducted pursuant to standard police procedure).

[6]

Detective Bisplinghoff directed someone working at the impound warehouse to take photographs of the tires on the Maserati before the vehicle was released in February 2011 to the owner (Tr. 1 at 57, 218–20). Those photos were emailed to Bisplinghoff, who retained them within his email account at the JSO. Id. It is unknown what happened to the photographs upon Bisplinghoff's change of employment from the JSO to the State Attorney's office. Because the charges had resolved before Bisplinghoff left the JSO, he testified he had no need to print or maintain the photographs (Tr. 1 at 57–58).

[7]

MobileMe has been described to the Court as an application for Apple products that permits the user to access the electronic device remotely to view information that is stored on the device, or to direct the deletion of information, such as call records and contact list, from the device (Tr. 2 at 92–93).

[8]

A “Nebbia hearing” is held to inquire into the motives of the surety so as to accurately assess the effect of a bail bond on the defendant's incentive to flee. United States v. Nebbia, 357 F.2d 303, 304 (2d Cir.1966) (importance is placed on the ability and incentive of the surety to produce the defendant); United States v. Dussuyer 526 F.Supp. 883 (S.D.Fla.1981).

[9]

Officer Timothy Holochwost, who testified as the jail custodian for audio records, stated the JSO currently does not have a policy to purge out attorney telephone numbers once they have been entered into the system as exempt from recording (Tr. 2 at 105).

[10]

The record reflects Ms. Newby was likely the subject of a Florida Bar investigation on this date (see Tr. 1 at 150–52).

[11]

Although the date on the signed document is written as 1/5/10, the parties do not contest that it was actually signed on January 5, 2011 (see Tr. 1 at 105, 123–24).

[12]

Unpublished cases may be cited for persuasive authority in accordance with the Eleventh Circuit Rules. 11th Cir. R. 36–2.

[13]

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11 th Cir.1981) (en banc) the Eleventh Circuit adopted as binding precedent all the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.

[14]

On these facts and the Court's findings, the Court need not determine whether an expired parking meter justified the towing of the vehicle.

[15]

The facts of this case are easily distinguishable from Gennusa v. Shoar, No. 3:09–cv–1208–J–32MCR, 2012 WL 2918487 (M.D.Fla. Jul.17, 2012), to which Defendant cites as supplemental authority to suppress the recorded phone calls (see Doc. # 141, Notice of Supplemental Authority). In Gennusa, conversations between an attorney and her client were unknowingly recorded while they were in an interview room at the St. John's County Sheriff's Office. Id. at *1, *4–7. Although the law enforcement officers knew the interview room was actively monitored and recorded, the plaintiffs, Gennusa and her client, were given no indication of that fact. Id. at *1. The plaintiffs sued the sheriff's office for violations of the Fourth Amendment and the Federal Wiretapping Act, 18 U.S.C. § 2510 et seq., in recording the attorney-client conversations. On these facts, the court found the plaintiffs had a subjective expectation of privacy in their attorney-client conversations that society was willing to recognize as reasonable. Id. at *4–7. Conversely, in this case, Mitchell was not sitting alone in an interrogation room with his attorney, but was making outgoing calls to his attorney from the Duval County Jail on a phone that he reasonably knew was monitored and the calls recorded. Moreover, Newby had visited Mitchell a number of times at the jail well in advance of this arrest and had more than ample opportunity to submit her phone number as an attorney number to be exempted from recorded calls, but opted not to do so.

[16]

Although not directly argued by Mitchell, the Court nonetheless finds that Mitchell's statements to Agent Lomonaco during the February 9 and 10, 2011 phones should not be suppressed. In those instances, Mitchell initiated the telephone calls to the office of a federal government law enforcement agent (Tr. 1 at 107–08, 145). Mitchell had a history of prior dealings with Agent Lomonaco as far back as 1999 and reasonably knew he was the target of a federal / state investigation that extended beyond his arrest for grand theft (see Tr. 1 at 30–31, 115). On these facts, Mitchell had no legitimate expectation that his calls to Lomonaco would be private and confidential.

[17]

Agent Lomonaco testified he was “pretty certain” the searches of the iPads and iPhone had been completed, by February 8, 2011 (Tr. 1 at 128) and Mitchell made his calls to Lomonaco on February 9 and February 10, 2011 (Doc. # 134–4; Doc. # 134–5).

[18]

Also at the request of Judge Howard, the undersigned issued a report and recommendation (Doc. # 144, First Report and Recommendation) regarding the first and second motions to suppress Mitchell filed in this case.

[19]

Also contained within the record are the transcripts of the two telephone calls between attorney Michelle Kalil Taylor and Donald Mitchell that were played during the evidentiary hearings (see Gov't Ex. 1A, Gov't Ex. 2A). The calls took place while Mitchell was incarcerated at the Duval County Jail on April 29, 2011.

[20]

Initially, privately retained attorney Matthew Kachergus appeared as Defendant's counsel, but he quickly moved to withdraw from representation (see Docs. # 8,-# 13).

[21]

Unpublished opinions are not considered binding authority; however, they may be cited as persuasive authority pursuant to the Eleventh Circuit Rules. 11th Cir. R. 36–2.

[22]

The Court takes note of Ms. Taylor's testimony that prior to going into private practice in 2010, she worked at the Public Defender's Office (for Florida's 4th Judicial Circuit) for twelve years (Tr. 1 at 14–15). The Court also takes note that the Jacksonville Sheriff's Office Department of Corrections Inmate Orientation Handbook specifically states, “Any telephone call made from any Department of Corrections facility will be recorded and may be monitored, with the exception of telephone numbers identified as privileged (i.e., Attorneys who request that calls to their numbers not be monitored or recorded, Public Defender, and Federal Public Defenders Office).” Defendant Ex. 1. Thus, it appears that the phone number for the office in which Ms. Taylor worked for twelve years, that of the Public Defender, was identified as privileged prior to the 2010 publication date of the Handbook excerpt entered into evidence.

[23]

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc) the Eleventh Circuit adopted as binding precedent all the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981.

[24]

But see Gennusa v. Shoar, 879 F.Supp.2d 1337, 1346 (M.D.Fla.2012) (finding violation of the attorney-client privilege and the Fourth Amendment when attorney and arrestee did not know their private conversations in a sheriff's office interview room would be secretly recorded).

[25]

Under 18 U.S.C. § 2511, no mechanical, electronic, or other device may be used to intentionally intercept any wire communication, including telephone calls, unless a court order has been obtained permitting the intrusion or another statutory exception applies. United States v. Freeman, No. 09–80104–CR, 2010 WL 989227, at *6 (S.D.Fla. Mar.16, 2010). The exceptions possibly applicable in this circumstance would be the monitoring and recording of calls by a law enforcement agency in the normal course of its duties or consent to the monitoring and recording. See id. at *7. As jail officers are also law enforcement officers, the monitoring and recording of outgoing inmate calls pursuant to established policy is within the normal course of the officers' duties. Id. The consent to the policy by the inmates may be implied or explicit. See id.