D.P.R.: Rule 41 provides authority on PC for cell provider to assist in recording calls phone owner has already consented to

The government had permission from a cell phone user to record conversations but needed assistance from the cell phone provider which declined to do it without a court order. First, Title III doesn’t apply because the user’s consent removes the situation from its coverage. The court finds authority in Rule 41 in general because the DEA agent’s affidavit in support shows probable cause for court ordered assistance of the provider. In the Matter of the Application of the United States of America for an Order Directing a Provider of Communication Services to Provide Technical Assistance to Agents of the U.S. Drug Enforcement Administration, 2015 U.S. Dist. LEXIS 123029 (D.P.R. August 27, 2015):

In the present case, while one party to the conversation has consented to law enforcement’s interception of electronic communications to and from the Target Phone, the party’s consent merely takes the requested order out of the Title III context, and does not magically confer jurisdiction on the court to order PROVIDER’s cooperation. Therefore, out of an abundance of caution, I find that an order directing assistance should not issue unless the government satisfies the requirements for search warrants under Rule 41, and provide an affidavit, detailing facts sufficient to establish that the interception of the electronic communications to and from Target Phone is likely to lead to evidence of a crime. Fed. R. Crim. P. 41(d); cf. N.Y. Tel. Co., 434 U.S. at 169 (noting that Rule 41 is “sufficiently flexible to include within its scope electronic intrusions authorized upon a finding of probable cause”). Here, although the government’s application bases its request not on Rule 41, but on what I have found to be insufficient statutory authority, the application nevertheless is supported by an affidavit executed by a DEA agent. I have reviewed that affidavit and am satisfied that it establishes probable cause that the intrusion and technical assistance the government seeks to compel likely will result in seizure of evidence of criminal activity. The requirements of Rule 41 being met, the government’s application is granted.