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Sawchuck v. Jenne, FL, Order on SJ, Attorney-Client Communications, 2007

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Case 0:06-cv- 61182- KAM

Document 51

Entered on FLSD Docket 09/21/2007

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Case No. 06- 61182- Civ- MARRNJOHNSON

individually and on behalf
of all others similarly situated
KEN JENNE , in his official and
individual capacity as SHERIFF
a political subdivision , BROWARD



This cause is before the Court upon Defendants Ken Jenne, Sheriff of Broward

County and the Broward Sheriffs Office Motion For Summary Judgment (DE
Court has carefully considered the motion , response, reply, entire court file

, and is

otherwise fully advised in the premises.

Plaintiffs filed their Class Action Complaint for Deprivation of Civil Rights

Complaint" ) pursuant to 42 U.

C. 9 1983 against the Sheriff of Broward County,

Kenneth Jenne (" Jenne ), Broward County, Florida (II Broward County"
), the Broward

Case 0:06-cv- 61182- KAM

Document 51

Entered on FLSD Docket 09/21/2007

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County Sheriffs Office ("BSO" ), and T- Netix Telecommunications Services , Inc.
(collectively, " Defendants

). Plaintiffs

operated by Defendant Broward County.
2006 violated inmates

by the BSO and implemented for a few weeks in the summer of

constitutional rights. Plaintiffs allege that the BSO policy of electronically recording, or
threatening to electronically record, all telephone calls between the inmates and third

parties, including privileged telephone conversations between inmates and their

lawyers , violates Plaintiffs ' rights and privileges guaranteed to them under the Fourth
Fifth, Sixth and Fourteenth Amendments to the United Constitution. Compl. ~~ 1
, 50-51.

(1) an unreasonable search and seizure of the persons and/or property of the Plaintiffs
and class members; (2) denied the Plaintiffs ' and the class members ' right to consult

with and obtain effective assistance of counsel by preventing or hindering them from
speaking candidly and confidentially with their lawyers; and (3) denies Plaintiffs and
members of the class due process of law.

Undisputed Facts
Many of the material facts in this action are undisputed. Defendants operate
detention facilities in Broward County including the North Broward Bureau where
Plaintiffs Joseph Sawchuck ("Sawchuck" ) and Richard Spencer (" Spencer") have

resided as pretrial detainees. From approximately June 29


until July 26 2006

Defendants monitored all inmate collect telephone calls made from BSO' s detention
1 Defendant T- Netix Telecommunications Services, Inc. was voluntarily

dismissed with prejudice. See DE 41.
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Document 51

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facilities. 2 Sawchuck Decl. ~ 5. Anyone, including attorneys , who wished to accept
collect calls from inmates being held at the Defendants ' facilities were required to press

a" to accept the call after being advised by a pre-recorded message that the

conversation would be electronically recorded.

On July 19



Sawchuck made a collect call to his attorney, Brian Simon

Simon ), from BSO' s North Broward Bureau. Sawchuck Decl. ~ 6. Sawchuck
intended to speak to his attorney about thoughts he had been having about taking his
own life, of which Simon was aware.


Simon heard the message, pressed "

, and

spoke with Sawchuck.
the conversation would be recorded, the call would have been disconnected.

Sawchuck Decl. ~ 7; Simon Decl. ~ 18. Sawchuck claims to have exchanged
unspecified confidential and privileged information with Simon which was recorded.
Sawchuck Decl.

Between July 14


and July 21 2006, Plaintiff Spencer made a collect call

to his attorney. Compl. ~ 22. When Spencer
his attorney would be recorded , Spencer decided not proceed with the telephone call.

Compl. ~ 23.

2 Prior to the enactment of the BSO taping policy, all telephone calls initiated by
inmates were subject to being recorded except those made by inmates to their attorney.
14- 15. During the
, the parties entered into a
stipulation concerning the electronic recordings which was approved by the Court.
BSO Defendants agreed not to disclose , listen to , or use in any manner
, conversations
between inmates detained at any SSO detention facility and their attorneys.

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Plaintiffs allege that BSO' s policy of recording all calls , including calls made to

their attorneys, violates clearly established constitutional law.
July 20,


a complaint was made to BSO that its taping policy violated the attorney-

client privilege, that it had a demonstrable " chilling effect" on the ability of attorneys and

inmates to speak freely with each other, and that it severed a major artery for attorneys

seeking to communicate with their clients. Compl. ~ 17.


discontinued its taping policy. Compl. ~ 19.
client telephone conversations exist remain in Defendants ' possession.

Inmates in the BSO jails and their attorneys do have the opportunity to meet

personally at the jail. Wimberly Unsworn 3

Decl. 11

defense lawyer may visit a BSO inmate in the late afternoons or early evenings during

the week. Simon Decl. " 15.
Legal' or ' privileged' mail is subject to inspection only for contraband , and only

in the presence of the inmate unless waived by the inmate in writing. When such
inspection takes place, the contents are inspected for contraband, but the contents of
the communications are not read by staff. " Wimberly Unsworn Decl. ~ 4.

3 The Court does not understand why Defendants would submit an unsworn

declaration in support of their motion. In any event , the few facts set forth in the
declaration upon which the Court has relied in this Order are not disputed by the
Plaintiffs , Le. , that attorneys can visit their clients at the Broward County jail and that
they can communicate via mail with their clients.
Simon Declaration. The key
issue is whether the availability and practicality of using these means of attorney-client
access are sufficient to provide Plaintiffs effective assistance of counsel required by the
Sixth Amendment.
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Entered on FLSD Docket 09/21/2007

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Standard of Review
Summary judgment is appropriate only when the pleadings, depositions

, and

affidavits submitted by the parties show that no genuine issue of material fact exists

and that the movant is entitled to judgment as a matter of law. Fed.

R.Civ.P. 56(c). The

court should view the evidence and any inferences that may be drawn from it in the light
most favorable to the non-movant.

Adickes v. S. H. Kress

Co. 398 U. S. 144 , 158-

(1970). The party seeking summary judgment must
absence of a genuine issue of material fact.

Gelotex Corp. v. Catrett

477 U. S.


323- 24 (1986). The burden then shifts to the non-movant , who must go beyond the
pleadings and present affirmative evidence to show that a genuine issue of material fact
does exist.

Anderson v. Liberty Lobby, Inc.,

477 U. S.

242 257 (1986).

In the Complaint , Plaintiffs allege violations of their Fourth , Fifth

, Sixth and

Fourteenth Amendment constitutional rights as cognizable through 42 U.

C. 9 1983.

Plaintiffs contend that the telephonic recordings of conversation between them and their
attorneys constitute an unconstitutional search in violation of their Fourth Amendment

rights , a violation of their Sixth Amendment right to counsel and a violation of their Fifth

and Fourteenth Amendment rights to due process.
4 Count III of the Complaint alleges the violation of Plaintiffs

' Fifth and
Fourteenth Amendment rights to due process. Plaintiffs claim the act of recording their
confidential telephone conversations with counsel essentially denies them the
opportunity to consult with, and obtain , effective assistance of counsel. The Fourteenth
Amendment guarantees prisoners meaningful access to the courts, and the opportunity
to communicate privately with an attorney is an important part of that meaningful
See Bounds v. Smith 430 U. S. 817 , 822 (1977);
Dreherv. Sielaff,
636 F.
1141 , 1143 (7th Cir. 1980). The analysis here of whether a genuine issue of
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The action challenged herein is an admitted BSO policy of electronically
recording, or threatening to electronically record , all telephone conversations between
inmates and third parties , including privileged telephone conversations between

inmates and their lawyers. When reviewing a policy implemented by a penal institution
Courts are advised to give prison administrators great deference in adopting and
executing policies and practices.

Pope v. Hightower, 101

3d 1382 , 1384 (11

1996). Such great deference is important because " courts are ill equipped to deal with
the increasingly urgent problems of prison administration and reform.


416 U. S.

Procunier v.

396, 405 (1974). In particular, prison officials exercise " wide

discretion " in determining the manner and method that inmates will be allowed to
access the court system and their attorneys , and prisoners are not entitled to any

Bounds v. Smith 430 U.

particular method of access to the courts or to their lawyers.

817, 833 (1977). Absent substantial evidence in the record indicating that officials
exaggerated their response to considerations of order, discipline, and security, courts
See Bell v. Wolfish 441 U. S. 520 , 547 (1979);

ordinarily should defer to their judgment.

see also McCorkle v. Johnson 881 F. 2d 993 (11th Cir. 1989).

Turner v. Safley,

482 U. S.

78, 84 (1987), the Supreme Court formulated a

unitary deferential" standard for reviewing prisoners ' constitutional claims that strikes a

balance between the policy of judicial restraint regarding prisoner complaints and the

fact exists regarding a violation of Plaintiffs ' right to effective assistance of counsel
under the Sixth Amendment is equally applicable under the Fifth and Fourteenth
Amendments and a separate analysis, based on the facts of this case, is not

See In re Grand Jury Subpoena Served Upon Doe,
781 F. 2d 238, 257(2d Cir. 1986) ("ltJhe Due Process clause of the Fifth and Fourteenth Amendment
requires the same opportunity, as the Sixth Amendment"

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Entered on FLSD Docket 09/21/2007

Document 51

need to protect constitutional rights. 482 U. S. at 85;



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532 U. S.

Shaw v. Murphy,


Court held that when a prison regulation impinges upon on


inmate s constitutional rights, the regulation is valid if it is reasonably related to
legitimate penological interests. 482 U. S. at 89;


The Supreme Court considered

this deferential standard necessary if " prison administrators ... and not the courts

to make the difficult judgments concerning institutional operations.
North Carolina Prisoners ' Union , Inc.


433 U. S. 119


, (areJ

Jones v.


128 (1977)).

Court identified several factors that serve to focus the

reasonableness inquiry: (1) whether there is a " valid, rational connection

" between the

regulation and a legitimate governmental interest put forward to justify it; (2) whether
there are alternative means of exercising the asserted constitutional right that remain
open to the inmates; (3) whether and the extent to which accommodation of the
asserted right will have an impact on prison staff, inmates, and the allocation of prison
resources generally; and (4) whether the regulation represents an " exaggerated


" to prison concerns.


482 U. S.

at 89- 91;

Pope v. Hightower, 101

1382, 1384 (11

phone usage by inmates is reasonably related to the legitimate government interest in

reducing criminal activity and harassment). Thus, " (aJ prison regulation , even though it
infringes the inmate s

constitutional rights ,

the regulation is unreasonable.
cert. denied,

532 U. S.


Hakim v. Hicks,

is an actionable constitutional violation only if
223 F. 3d 1244


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1247 (11th Cir.



Case 0:06-cv- 61182- KAM

Document 51

Wilson v. Moore, 270

there has been an infringement in the first place.

1328, 1348 (N. D. Fla.

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s requirements, the Court must determine whether


Prior to considering

Entered on FLSD Docket 09/21/2007

F. Supp. 2d

Plaintiffs assert that the BSQ' s policy of tape recording all


outgoing calls, including telephone calls with their attorneys, constitutes a denial of their
right to counsel , since the monitoring effectively prevented them from conferring

confidentially with their lawyers.

The essential purpose of the Sixth Amendment is to ensure that criminal
defendants have the requisite assistance of counsel thought to be necessary to a fair

511 U. S.

Nichols v. United States,

466 U. S.

738, 754- 55 (1994);

Strickland v. Washington

668 , 684 (1984) (holding that the Sixth Amendment right to counsel exists "

order to protect the fundamental right to a fair trial" Nix v. Whiteside 475 U. S. 157

175 (1986). Jails and penal institutions need only provide access to counsel that is
adequate, effective, and meaningful when viewed as a whole and prisoners do not have
a right to any particular means of access.


Morris v. Slappy

461 U. S. 1 ,

Bounds v. Smith 430 U. S. 817 , 823, 832

11 (1983) (not every restriction on counsel'

opportunity to consult with his client or otherwise to prepare for trial violates a

defendant' s Sixth Amendment right to counsel). 5 A prisoner's right to telephone access
419 F. Supp. 2d
820 836 (E.D. Va. 2005) (prison
See also U. S. v. Lentz,
policy of recording and monitoring all inmate telephone calls did not infringe Plaintiffs
Sixth Amendment rights because Plaintiff had at least two effective avenues of
communicating confidentially with counsel - mail and in- person conferences);
v. McMickens,
692 F. Supp. 205 , 214 (S. N.Y. 1988) (" States have no obligation to
provide the best manner of access to counsel. Rather, restrictions on inmates ' access
to counsel via the telephone may be permitted as long as prisoners have some manner
Aswegan v. Henry,
of access to counsel" );
981 F. 2d 313. 314 (8th Cir. 1992)
(a)lthough prisoners have a constitutional right of meaningful access to the courts,
prisoners do not have a right to any particular means of access , including unlimited

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Case 0:06-cv- 61182- KAM

is "

Document 51

Entered on FLSD Docket 09/21/2007

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subject to rational limitations in the face of legitimate security interests of the penal


791 F. 2d 744, 747 (9th Cir. 1986);

Strandberg v. City of Helena,

United States v. Noriega 917 F. 2d 1543 , 1551 n. 10 (111h Gir.

see also

(iJt is not


or unreasonable to condition the use of telephones by penal inmates on monitoring of
the telephone calls by the authorities charged with maintaining the security of the penal

Feeley v. Sampson 570 F. 2d 364 , 373-374 (1st Cir. 1978) (suggesting that


striking an appropriate balance between the interests of prison authorities and prisoners
could be achieved by conditioning prisoners ' access to telephones on their recognition
that prison guards have authority to monitor telephone conversations).

Plaintiffs claim that attorney-client contact within the Broward County detention

facilities by mail or personal visits does not provide meaningful access.
that " (tJhe BSO taping policy at issue

Amendment rights of all inmates by forcing them to make a Hobson s choice between
either waiving their attorney-client privilege or

completely foregoing

their right to

communicate with counsel in the best manner practicable. " DE 42 at 12 (emphasis in

original). Plaintiffs proffer the affidavit of attorney Simon in support of the
that personal visits and correspondence do not provide reasonable or meaningful

access to counsel. Simon declares that the BSO Defendants " ignore the realities of the
difficulties that a criminal defense lawyer in Broward County, such as myself, faces in
attempting to communicate meaningfully, effectively and regularly with clients who are

telephone use

Pino v. Dalsheim 558 F. Supp. 673 675 (S.
Y. 1983) (noting that
the government is not required to provide inmates the best manner of access to


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being held in a detention facility. " Simon Decl. ~ 12. As a result , Plaintiffs assert that

unrecorded telephone communications with counsel are required in order for Broward

County inmates to have effective legal representation. DE 42

, Simon Decl. ~~ 12-

20. In the absence of
attorney and his client, recording of communications between that attorney and client
would appear to be an infringement of a defendant' s Sixth Amendment right.
Defendants claim , on the other hand , that other meaningful and effective means


of communication are available between counsel and the inmates , including unlimited

, Wimberly Unsworn Decl. W 3-4.

access to the mails and personal visits. DE

Thus, while the Court is not prepared to rule that the recording in question constitutes a
per se violation of Plaintiffs ' Fifth , Sixth and Fourteenth Amendment rights , questions of

fact are presented by Plaintiffs ' Complaint and Defendants ' motion as to whether

Broward County detention facilities provide viable and effective means of
communication or access between inmates and their attorney, without regard to the use

of telephone communications. The sparse record in this case illustrates the existence
of genuine issues of material fact regarding whether Plaintiffs ' constitutional rights have

been infringed. Furthermore , if it is determined that Plaintiffs ' constitutional rights have
been infringed, the Court must then consider the


factors - which again create

questions of fact. Under the present record, summary
Fourth Amendment
The Fourth Amendment protects against unreasonable searches and seizures.
Katz v. United States,

389 U. S.

347, 511 (1967). Conversation is within the

Amendment' s protection , and use of electronic devices to capture it is a " search" within

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Berger v. New York

the meaning of the Amendment.

388 U. S.

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41, 51 (1967). The

Fourth Amendment protection against unreasonable searches of the person provides a

clearly established right to be free from invasion of privacy.

Society recognizes the importance of privacy in communications with an

attorney. The "attorney-client privilege is one of the oldest recognized privileges for
confidential communications. The privilege is intended to encourage ' full and frank
communication between attorneys and their clients and thereby promote broader public


524 U. S.

Ber/in v. United States,

399, 403 (1998) (citations

omitted). Thus , it is reasonable to expect that a conversation with attorney would be

See Lanza v. New York

370 U. S.

139, 143-44 (1962) (" even in a jail , or

perhaps especially there , the relationships which the law has endowed with

particularized confidentiality must continue to receive unceasing protection
On the other hand, " (iJt is not unusual

telephones by penal inmates on monitoring of the telephone calls by the authorities
charged with maintaining the security of the penal facility.

United States v. Noriega,

917 F. 2d 1543, 1551 n. 10 (11th Cir. 1990). Moreover , Florida courts have recognized

the propriety and legality of recording inmates ' telephone conversations.

See Pires v.

Wainwright 419 So. 2d 358, 359 (Fla. Dist. Ct. App. 1982)
interests of maintaining custody over prisoners significantly outweighs the individual

prisoner's interests in the privacy of his telephonic communications. Accordingly, we
hold there is an exception to the Security of Communications Act permitting prison

officials to wiretap telephone calls from prisoners incarcerated in our prisons

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A defendant cannot invoke the Fourth Amendment' s protections unless he has a
legitimate expectation of privacy against the government' s intrusion.
v. Chadwick 433 U. S.


7 (1977);

Minnesota v. Carter

525 U. S.

See United States
83 (1998);


States v. Cooper 133 F. 3d 1394, 1398 (11

protections of the Fourth Amendment has the burden of establishing his legitimate

Rakas v. Illinois

expectation of privacy in the place invaded.

439 U. S.

128 130 n.

United States v. Meyer 656 F. 2d 979 (5th Cir. 1981). The test for determining


what constitutes a " legitimate expectation of privacy " is: 1) whether a subjective

expectation was exhibited; and 2) whether the expectation is one that society will
recognize as reasonable.

Smith v. Maryland,

442 U. S.

735, 740 (1979). Defendants

argue that Plaintiffs did not have a subjective expectation of privacy necessary to

support a Fourth Amendment claim with regard to their telephone conversations made

from the prison and that summary judgment on this claim should be granted.

There can be no doubt that Sawchuck had no reasonable expectation of
confidentiality in the July 19lh conversation with attorney Simon because, as he has

acknowledged , he knew his call was subject to monitoring and recording. Indeed , both
Plaintiffs cannot claim even a subjective expectation of confidentiality, especially
Spencer who refused to use the telephone because he did not want to be recorded.

Application of the Fourth Amendment depends on whether the person invoking its
protection can claim a " legitimate expectation of privacy " that has been invaded by the

State s action. The Fourth Amendment is simply inapplicable to the circumstances of

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Case 0:06-cv-61182- KAM

this case.

Document 51

U.S. v. Noriega 764 F. Supp.

Entered on FLSD Docket 09/21/2007



Page 13 of 14

(S. D. Fla. 1991).

Sawchuck attempts to get around this hurdle by arguing that because he was
speaking with his attorney, he had a legitimate expectation of privacy with respect to
this " privileged telephone conversation. " DE 42 at 18.

the requirement that they consent to being recorded to the hypothetical situation where
a homeowner is forced at gunpoint by a police officer to consent to a search of his
home. Sawchuck

free and unconstrained choice.

The law on the Fourth Amendment right to be free from unreasonable searches

and the right of privacy is well established. So long as a prisoner is provided notice that
his communications will be recorded, and he is in fact aware of the monitoring program
but nevertheless uses the telephones, by that use he impliedly consents to be

United States v. Workman,

80 F. 3d 688, 693 (2d Cir. 1996). The Fourth

Amendment cannot attach under these undisputed material facts and the Plaintiffs do
not have a cognizable claim for unconstitutional search.

Defendants request the Court to grant them summary judgment on all of
Plaintiffs ' constitutional claims. As to the Sixth Amendment claim, the motion will be

denied as explained above. As to the Fourth Amendment claim , the motion for
summary judgment will be granted as explained above. Accordingly, it is hereby

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Case 0:06-cv- 61182- KAM


Document 51

Entered on FLSD Docket 09/21/2007

Page 14 of 14

that Defendants ' Motion For Summary Judgment


(DE 21J is


in Chambers at West Palm Beach , Palm Beach County,

Florida , this 20th day of September 2007.

United States District Judge
copies to:

All counsel of record

Page 14 of 14

Page 1 of2

Nyla Libhart



To: flsd

, 2007 1

cmecCnotice~flsd. uscourts. gov

Subject: Activity in

61182- KAM Sawchuck , et al v. Jenne , et al " Order on Motion for Summary Judgment"

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S. District Court
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The following transaction was received from bs entered on 9/21/2007 at
Case Name: Sawchuck , et al v. Jenne , et al
Case Number: O:06~Gy- 6LL82

Document Number: 51

Docket Text:
ORDER granting in part and denying in part (21J Motion for Summary Judgment; Signed by Judge Kenneth A. Marra



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Page 2 of2
Fernando Eugenio Amuchastegui
Broward County Attorney s Office
115 South Andrews Avenue
Suite 423
Fort Lauderdale , FL 33301- 1801
Stephanie A. Joyce
Kelley Drye Collier Shannon
3050 K Street NW
4th Floor

Washington , DC 20007
Glen H. Waldman
Bilzin Sumberg Baena Price & Axelrod
200 S Biscayne Boulevard

Suite 2500
Miami , FL 33131- 2336