### The Honorable William G. Cambridge, Chief Judge, Unite d 1 

### States District Court for the District of Nebraska. ___________ No. 96-1140

___________ Cheryl M. Morford, * * Appellant, * * v. * * City of Omaha, a municipal * corporation and political * Appeal from the United States subdivision of the State of * District Court for the Nebraska; James Skinner, * District of Nebraska. individually and in his * capacity as Chief of Police of * the Police Department of the * City of Omaha, Nebraska; John * Car, individually and in his * capacity as a police officer * for the City of Omaha, Nebraska,* *

Appellees. *

___________ Submitted: September 11, 1996 Filed: October 21, 1996

___________ Before BOWMAN, BRIGHT, and JOHN R. GIBSON, Circuit Judges.

___________ BOWMAN, Circuit Judge.

Ch eryl Morford appeals from the decision of the District Court 1 denying her claims for statutory damages, attorney fees, and costs, despit e a j ury verdict in her favor in her suit against the city of Omaha an d certai n law enforcement officers for the unlawful interception of he r telephone conversations. We affirm.

### Car testified that he did not wait for the wiretap to b e 2 

### authorized because, once the w arrant was signed, it was only valid for thirty days. If something was amiss with the telephone lines or recording equipment, investigators could lose already limite d wiretap time while the problem was identified and corrected. -2- In the sp ring of 1990, a metro area task force that included, among others , the Omaha Police Department and the Douglas County Sheriff' s Depart ment, in a continuing investigation of the Omaha Hell's Angel s Motorcycle Club, received court authorization to install a pen register on the te lephone of Gary Apker. A pen register collects and prints ou t information about cal ls made to or from the target telephone, although it tells an investigator nothing about the content of the calls. By Jun e 199 0, investigators had sufficient information to apply for cour t authorization for a wiretap of Apker's telephone so that they might record his conversations. Omaha police officer John Car, who had been with the po lice department's special operations squad since January 1985, wa s assig ned to assist in installing first the Apker pen register and the n later the Apker wiretap. Car asked the task force to advise hi m app roximatelyone week before the wiretap was expected to receive cour t approval, so that he might run audio tests on th e equipment, a practice he regularly followed. 2
On June 19, 20, and 21, 1990, having received notification that court app roval of the wiretap was imminent, Car tapped into Apker's telephon e line with audio equipment that he attached to the pen register that already was opera ting. Car's only purpose in doing so was to check the soun d quality o n the line and to be sure that the recording equipment wa s operatin g properly. As he described his testing routine, when th e equipme nt indicated that the target's telephone was in use, Car woul d listen for a few seconds with headphones, then put the headphones around his ne ck and turn on one or more cassette tape recorders, taping th e conversations. Car would then rewind each cassette tape, listen to

### Morford testified that her husband was not in the shop that 3 

### da y, and thus it could not have been his conversation that wa s recorded, because he was in prison on drug charges at the time. -3- ten or fifteen seconds of the first part of the tape and a later part of the tape, then physically destroy the tape.

On June 21, 1990, someone using Apker's telephone twice dialed th e telephone number of t he Old Brass Shack, a metal polishing business owned and operated by Morford and her husba nd. A paper tape printed out by the 3 pen register/wiretap showed that the first call went out at approximately 12:1 0 p.m. and lasted only twelve seconds, a duration that, in Car' s experience, indicatedthe call was not answered. (He had no recollection of spe cific calls or conversations.) Approximately two minutes later , anot her call made to the Old Brass Shack lasted one minute, eightee n seconds.

Four days later, on June 25, 1990, a state district court judg e signed a warrant authorizing the wiretap on Apker's telephone. Th e invest igation led eventually to the arrest and prosecution of severa l individ uals, including Cheryl Morford. Morford entered a conditiona l guilty plea in federa l court. She then appealed the conviction, arguing, inter alia , that the evidence obtained from the wiretap should b e suppressed for reasons related to the pre-warrant testing. This Cour t conclu ded that the district court in Morford's criminal case properl y denied suppression. United States v. Lucht , 18 F.3d 541, 546 (8th Cir.), cert. denied , 115 S. Ct. 363 (1994). When Car's testing procedures came to light as a result of the suppression hearing, the Omaha polic e department policy was changed so that no testing involving the interceptio n of tel ephone conversations would occur until a wiretap was properl y authorized.

In Octob er 1993, Morford filed this civil lawsuit against the cit y of Omaha, Car, and Omaha police chief James Skinner under

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Title I II of the Omnibus Crime Control and Safe Streets Act of 1968, 1 8 U.S.C. §§ 2510-2521 (1988 & Supp. II 1990) (the Act), seeking statutor y damage s, punitive damages, attorney fees, and costs for the unlawfu l interception of her telephone conversations. Af ter trial, a jury found in favor of Morford, but denied her claim for punit ive damages. The District Court t hereafter denied Morford statutory damages, attorney fees, an d costs. Morford appeals.

Morford f irst argues that the District Court was without discretion to deny her an award of statutory damages when t he jury found in her favor
on her claim that defendants violated the Act. That argument is foreclose d by our opinion in Reynolds v. Spears , 93 F.3d 42 8, 433-35 (8th Cir. 1996), where we held that the trial court has discretion under 18 U.S.C

. § 2520( c)(2) (1988) to decline to award statutory damages for illega l te lephone interceptions. The question remains, however, whether th e Distri ct Court abused its discretion in declining Morford's request fo r statutory damages in the amount of $10,000 for each violation. We hol d that it did not.

The Distr ict Court is on the record in a ruling from the bench with
a number of reasons for denying statutory damages. The court found Morfor d sustained no actual damages, and that the "priva cy intrusion . . . appears to have been relatively minor." Partial Transcript of Proceedings, Dec. 1, 1995, at 10. The court concluded that those who may have played a part in the unlawful interceptions misunderstood the law and did not believe th e pre-warrant testing was illegal. Further, according to the court, Ca r never intended to monitor for information, or to use in any way informatio n gleaned from any conversations that may have been intercepted in the cours e of his testing of his equipment. Finally, although the testing procedure has b een changed, the court found that Morford's civil lawsuit did no t cause the change.

### -5- To those reasons we would add that the evidence shows Morford wa s recorded on only one day, two times at most, and for no more than ninety
sec onds total. There is no evidence that Car disclosed to anyone th e substance of any conversation that he may have h eard. Car was the officer assigned to handle only the technical aspects of the intercept. He was no t a member of the task force investigating Apker a nd therefore was not privy to the details of the ongoing investigation. Car physically destroyed eac h ta pe by breaking it and ripping it out of the cassette as soon as h e verified, by listening to a few seconds of the tape, that the recordin g equipment was operati ng properly. He clearly did not believe his actions
were ille gal and never tried to conceal the fact of his pre-warran t testing. Car's actions were part of an otherwise lawful investigation tha t result ed in the arrest and conviction of several individuals, includin g Morfor d, and the dissolution of a substantial conspiracy to distribut e methamphetamine in the Omaha area.

In these circumstances, we conclude that the District Court did not abuse its discretion in denying Morford's request for statutory damages.
Finally, we come to the question of attorney fees and costs. Under the Act, a person whose communication is unlawfully intercepted may recove r "a reasonable attorney's fee and other litigation costs reasonabl y incurr ed." 18 U.S.C. § 2520(b)(3) (1988). Because such an award i s discretionarywith the court, we will reverse only for an abuse in th e exercise of that discretion. See Reynolds , 93 F.3d 428, 436 (8th Cir

. 1996). The District Court denied fees and costs "for the same reasons [th e court] found with regard to statutory damages." Partial Transcript o f Proceedings at 11. Finding no abuse of discretion, we affirm.

In addition to the reasons enumerated in support of the denial o f statutory damages, the most cogent reason for denying attorney

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fees and costs is Morford's lack of success on her claim--statutory an d punitive damages were denied. We have previously concluded that a distric t court would not abuse its discretion in excluding from a fee award "time spen t in unsuccessfully seeking amended statutory damages and punitiv e damages." Bess v. Bess , 929 F.2d 1332, 1335 (8th Cir. 1991). Sinc e statutory and punitive damages were the only rel ief Morford sought, and no such damages were awarded, we cannot say that the District Court abused it s discretion in denying fees and costs.
Morford has claimed, both in her tes timony before the District Court and in her brief, that she brought suit "mainly to make the [sic] sure the City o f Omaha stopped this outrageous policy of illegally interceptin g unknown members of he r community." Brief of Appellant at 29. She claims that, "[b]ecause of this case, the City of Omaha has stopped" and that she should be awarded fee s for accomplishing this public purpose. Id. Given the uncontroverted record in this case, that argument is unavailing.

Morford a nd her co-defendants were arrested in the fall of 1990. A hearing on the motion to suppress the wiretap evidence in Morford' s criminal case because of Car's audio tests was held in October 1991. The undisputed testimony at the trial in this civil case demonstrates that the Omaha police department policy of performing pre-warrant audio tests b y tape recording telephone conversations had been abolished by 1992--wel l before Morford's complaint was filed in October 1993. Thus, her claim tha t this suit was responsible for changing Omaha's unlawful policy must b e rejected.
The judgment of the District Court is affirmed in all respects.

### -7- A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.