E.D.Tenn.: No reasonable expectation of privacy in the contents of a telephone call with an informant who’s recording it

There is no reasonable expectation of privacy in the contents of a telephone call with an informant who’s recording it. United States v. Deleon, 2014 U.S. Dist. LEXIS 90856 (E.D. Tenn. May 23, 2014):

In his motion to suppress, the Defendant argues [Doc. 246 at 4] that he had a “reasonable expectation of privacy” in his phone conversation with the informant. It is undisputed that the Defendant did not know that his phone calls with the informant were being recorded. Thus, as to the first prong of the inquiry, the Court finds that the Defendant has exhibited a subjective expectation of privacy in these communications.

In regard to the second prong, however, the Court finds that the Defendant’s privacy interest was not reasonable. “The test of legitimacy is not whether the individual chooses to conceal assertedly ‘private’ activity. Rather, the correct inquiry is whether the government’s intrusion infringes upon the personal and societal values protected by the Fourth Amendment.” Oliver v. United States, 466 U.S. 170, 182-83 (1984). Our Supreme Court has established that the Fourth Amendment does not “protect[] a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” Hoffa v. United States, 385 U.S. 293, 302 (1966). “[H]owever strongly a defendant may trust an apparent colleague, his expectations in this respect are not protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with the authorities.” United States v. White, 401 U.S. 745, 749 (1971) (plurality opinion).

The Defendant attempts to distinguish Hoffa and White from the instant case on the grounds that in those Supreme Court cases, the recorded conversations at issue were made by an informant who was in the physical presence of the defendant when the statements were made. By contrast, the Defendant argues that he believed he was engaged in a private phone conversation with another person which changes the privacy interests one could expect. Contrary to the Defendant’s assertion, the Court finds that the line of reasoning established in Hoffa and White is no less applicable where a defendant, as is in this case, makes the statements over the phone.

This was settled long ago, but defense counsel deserves credit for coming up with this new twist on the argument.