M.D.Pa.: Police recording the one side of a telephone conversation they could already hear did not implicate ECPA

Police recording the one side of a telephone conversation they could already hear did not implicate the Electronic Communications Privacy act. United States v. Ray, 2014 U.S. Dist. LEXIS 49647 (M.D. Pa. April 10, 2014):

Ray argues that even though the recording only captures Bobb’s side of the telephone conversation, he is nevertheless an “aggrieved person” under the purview of the statute because he was the “person against whom the interception was directed.” See United States v. Oliva, 705 F.3d 390 (9th Cir. 2012) (holding that defendant had standing to challenge interceptions even though he refused to admit that the voices in the conversations intercepted included his own). While it may be true that the troopers intended to utilize the interception against Ray, an actual interception never occurred as contemplated by the statute. The recording device merely recorded what Bobb stated into the microphone. (Doc. 227 at 10-11). Hence, law enforcement never recorded any aural transfer made through the use of the cell phone. Moreover, the recording merely reflects the extent of the conversation that was already available to Trooper Mearkle by virtue of his physical presence with Bobb. Ray cannot reasonably claim to have an expectation of privacy in Bobb’s half of the conversation. Thus, the provisions of the ECPA do not apply and the court will not suppress the one-sided recording of Bobb’s telephone call with “Diego” or any evidence derived therefrom.

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