USA v. Burk

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
JOHNNYLEE PRESTON BURK,
Defendant.
Case No. 3:19-cr-00117-JMK
ORDER DENYING
MOTION TO SUPPRESS
Before the Court at Docket 167 is Defendant Johnnylee Burk’s “Motion to
Suppress Recorded Jail Calls” (the Motion). 	Mr. Burk seeks an order from this Court to
“suppress illegally monitored and recorded jail calls while Burk has been housed at ACC-
East. . . .”1 The Government responded in opposition at Docket 169. No reply was filed.
Mr. Burk argues that “pretrial calls” that were produced during discovery in
this case “were obtained by the illegal monitoring and recording being done by DOC staff
in direct violation of Cleary’s FSA and without any warrant granted by a magistrate to do
so.”2 “Cleary’s FSA” refers to a Final Settlement Agreement and Order, incorporated into
a judicial consent decree by the Alaska Superior Court in 1990.3 The Cleary consent decree
1 Docket 167 at 1.
2 Id. at 3–4. Mr. Burk does not specify who the calls are to and from or what the content of the calls is.
3 See Cleary v. Smith, No. 3AN-81-5274 Ci., Final Settlement Agreement and Order (Alaska Super. Ct.,
Sept. 21, 1990).
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applied to ‘all inmates, with some exceptions, who are or will
in the future be incarcerated in correctional facilities owned or
operated by the state’. . . [and] included elaborate provisions
for future operation of Alaska prisons, enumerated rights of
inmates, guaranteed the availability of specific rehabilitative
programs and services, required the state to implement an
inmate classification system, created population guidelines,
and established caps to eliminate overcrowding.4
However, the Cleary consent decree does not purport to apply to “individuals charged only
with a federal offense or offenses[.]”5 Mr. Burk is charged with two counts of assault in
violation of 18 U.S.C. §§ 111(a)(1) and (b), and 18 U.S.C. §§ 111(a)(1), respectively.6 It
thus is not clear to the Court that the Cleary consent decree creates any affirmative rights
or bases for relief for Mr. Burk.
Further, even if the Cleary decree applied to Mr. Burk, the text only suggests
a prohibition as to the monitoring and recording of calls between an inmate and his or her
attorney. 	Specifically, the decree provides that “[t]he Department may not monitor the
telephone call of a pretrial detainee, or the telephone call by any inmate to or from any
attorney, except when authorized by court order.”7 Mr. Burk has not shown or alleged that
the calls he seeks to suppress were made to or from an attorney. In summary, the Cleary
consent decree cannot serve as an adequate basis for Mr. Burk’s requested relief.
Mr. Burk also alleges that the monitoring and recording of his calls violates
various constitutional rights. First, Mr. Burk argues that the calls were “obtained by DOC
4 Miller v. Corr. Corp. of Am., 3:03-cv-00266-JWS, 2008 WL 11338666, *1 (D. Alaska Sept. 18, 2008)
(citing Smith v. Cleary, 24 P.3d 1245, 1247 (Alaska 2001)).
5 Docket 169-1 at 7.
6 See Docket 2.
7 Docket 169-1 at 34.
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United States v. Burk 	Case No. 3:19-cr-00117-JMK
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through an illegal ‘search’” and “cannot be excused here under the good-faith exception.”8
Mr. Burk cites to United States v. Leon, 468 U.S. 897 (1984), for this assertion, and states
that the “the U.S. Marshals and DOC staff, had no reason to believe that probable cause
existed[.]”9 	However, Leon only addressed the question of “[w]hether the exclusionary
sanction is appropriately imposed in a particular case,” rather than “whether the Fourth
Amendment rights of the party seeking to invoke the rule were violated. . . .”10
Here, the Court cannot find that an illegal search occurred, and therefore no
violation of Mr. Burk’s Fourth Amendment rights has been shown. 	“The Fourth
Amendment is not triggered unless the state intrudes into an area ‘in which there is a
constitutional protected reasonable expectation of privacy.”11 The Ninth Circuit has held
that “any expectation of privacy in outbound calls from prison is not objectively reasonable
and that the Fourth Amendment is therefore not triggered by the routine taping of such
calls.”12 Therefore, the monitoring and recording of Mr. Burk’s non-attorney phone calls
does not amount to an illegal search, and any exclusionary rule analysis under Leon is
inapplicable.
Mr. Burk additionally asserts that the monitoring and recording of calls
violates his procedural due process rights under the Fifth and Fourteenth Amendments.13
8 Docket 167 at 6.
9 Id. at 6–7.
10 United States v. Leon, 468 U.S. 897, 906 (1984) (quoting Illinois v. Gates, 462 U.S. 213, 223 (1983)).
11 United States v. Van Poyck, 77 F.3d 285, 290 (9th Cir. 1996) (internal citations omitted).
12 Id. at 291. 	Further, the Ninth Circuit found that even if the Fourth Amendment were triggered,
“institutional security concerns justify such recordings and render them reasonable for Fourth Amendment purposes.”
Id. 13 Docket 167 at 7. The Supreme Court uses the same analysis under the Fifth and Fourteenth Amendment
due process clauses to determine whether a liberty interest exists. See Kaufmann v. Pima Cnty., CV 11-534 TUC
DCB, 2014 WL 12538174, *2 (D. Ariz. Jan. 21, 2014).
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He argues that “protected liberty interests were created by the terms set in the Final
Settlement Agreement and Order in Cleary v. Smith . . .” and the “monitoring and recording
of Burk’s pretrial calls, in violation of those terms, constitutes a deprivation of his protected
liberty interests and is therefore illegally obtained by DOC, requiring it to be suppressed
here.”14 	The Ninth Circuit has held that consent decrees can create liberty interests
protected by the Fourteenth Amendment, but “[a] consent decree, however, only creates
obligations that run to the parties to the decree, and only while the decree is still in force.”15
As discussed above, the Cleary consent decree creates no protected interest in making or
receiving un-monitored non-attorney calls. 	Even if the Court could find that it did,
Mr. Burk has no claim of entitlement to such an interest. 	In summary, Mr. Burk has not
shown 	violations 	of 	his 	Fourth, 	Fifth, 	and 	Fourteenth 	Amendment 	rights, 	or 	that
suppression of non-attorney calls is warranted.
CONCLUSION
In light of the foregoing, the Motion at Docket 167 is DENIED without
prejudice.
IT IS SO ORDERED this 20th day of September, 2021, at Anchorage,
Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
14 Docket 167 at 8.
15 Smith v. Sumner, 994 F.2d 1401, 1406 n.4 (9th Cir. 1993).
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