United States v. Simon Smith

MEMORANDUM

Simon Smith (“Smith”) was in custody, under indictment for state drug and firearms crimes, and represented by counsel, when state agents placed a confidential informant (“Cl”) and a recording device in his cell in an attempt to gather information about a missing person. The placement of the recording device was done with FBI assistance and pursuant to an authorizing warrant, but also done despite a warning delivered to the state police from his counsel that Smith was not to be questioned without his counsel present. Over 400 hours of conversation were recorded. Subsequently, the State dropped its charges and turned the case over to the federal authorities who proceeded to indict Smith on federal drug and firearms crimes arising out of the same events that had led to the state charges.

When the government announced its intention to use excerpts from the recorded conversations at trial, Smith moved to suppress the recorded statements as violations of his Sixth Amendment right to counsel. Following a lengthy hearing, a magistrate judge recommended allowing admission of statements made outside the presence of the Cl, but suppression of those statements made in the Cl’s…