D.Conn.: No reasonable expectation of privacy in the back of a police car when defs alone talk to each other

Two defendants were arrested and left alone in the back of a police car, and, as hoped, they talked about the crime they were arrested for, and it was surreptitiously recorded. They may have had a subjective expectation of privacy but not an objective one. The Second Circuit hasn’t had this issue yet, but every circuit to rule on it goes against them. United States v. Colon, 2014 U.S. Dist. LEXIS 161461 (D. Conn. November 17, 2014):

Although the Second Circuit has yet to address this issue, every other federal appeals court to consider it has concluded that a criminal suspect or arrestee does not have a reasonable expectation of privacy from having his conversations secretly monitored and recorded while voluntarily present or detained in a police car. See United States v. Fridie, 442 F. App’x. 839, 841 (4th Cir. 2011) (per curiam); United States v. Hernandez-Mendoza, 600 F.3d 971, 977 (8th Cir. 2010), opinion amended on denial of reh’g, 611 F.3d 418 (8th Cir. 2010); United States v. Dunbar, 553 F.3d 48, 57 (1st Cir. 2009); United States v. Turner, 209 F.3d 1198, 1200-1201 (10th Cir. 2000); United States v. Carter, 117 F.3d 1418 (5th Cir. 1997) (per curiam); United States v. Clark, 22 F.3d 799, 801-02 (8th Cir. 1994); United States v. McKinnon, 985 F.2d 525, 528 (11th Cir. 1993); see also United States v. Fabian, 2005 WL 2043008, at *2, report and recommendation adopted, 2005 WL 2205899 (D. Vt. 2005).

Some of these courts have elaborated on why an expectation of privacy for what defendants might say in a police car is not reasonable. In Clark, for example, the Eighth Circuit found that a police car was “essentially the trooper’s office,” because it “is frequently used as a temporary jail for housing and transporting arrestees and suspects,” and that, because police transport vehicles were used in investigation “for the express purpose of ferreting out crime,” there was no reasonable expectation of privacy. Clark, 22 F.3d at 801-02. In Turner, the Tenth Circuit found that, even if the officer “deliberately represented the car as a safe haven,” the defendant’s subjective expectation of privacy was not reasonable under the circumstances, because “the practical realities of the situation should be apparent to occupants,” as “[p]atrol cars bristle with electronics, including microphones to a dispatcher, possible video recording with audio pickup, and other electronic and recording devices.” Turner, 209 F.3d at 1200-01 (footnote omitted).

Defendants strive to distinguish these decisions on grounds that this case involves neither marked police cars nor vehicles that were “bristling” with electronics on the inside. They rely on two recent decisions from the Northern District of Illinois that recognize an expectation of privacy against secret tape recording of arrestees while they were in the rear compartment of a police paddy wagon; the compartment was out of earshot of the driver’s compartment, and there was no electronic equipment in plain sight. See United States v. Paxton, 2014 WL 3807965, at *2 (N.D. Ill. 2014); United States v. Williams, 15 F. Supp. 3d 821, 2014 WL 642813, at *4-6 (N.D. Ill. 2014).

I reject defendants’ arguments and find both Paxton and Williams to be unpersuasive. The reasonableness of an expectation of privacy should not depend on how a police car is marked or painted on the outside. Nor should the reasonableness of an expectation of privacy turn on whether a police vehicle is decked out on the inside with radios, scanners, or other gadgets and electronics. The police might just as easily hide a video camera or tape-recorder in a hat or a soda can on the dashboard as in a dashboard-mounted radio or GPS location device. A suspect is no more or less on notice of the likelihood that he may be subject to recording because of the random presence of electronics that give no indication that they are being used to record conversations.