CA7: No reasonable expectation of privacy in a conversation in the back of a police car

There is no reasonable expectation of privacy in a conversation in the back of a police car. Just because the defendant was quiet when the officer was around doesn’t make it objectively reasonable. Williams and the squadrol (paddy wagon) distinguished. United States v. Webster, 2015 U.S. App. LEXIS 74 (7th Cir. January 5, 2015):

In order to succeed on this claim, Webster has to establish that he had a reasonable expectation of privacy in the conversation that took place in the caged portion of the squad car. A reasonable expectation of privacy exists when the defendant manifested a subjective expectation of privacy and society recognizes that expectation to be reasonable. United States v. Walton, 763 F.3d 655, 658 (7th Cir. 2014). Therefore, it contains both a subjective and objective component. We assume for purposes of the analysis here that Webster in fact manifested a subjective expectation of privacy, which was evidenced by his silencing of the conversation when the officer was in the patrol car, as would be expected from someone seeking to keep a conversation private. Id. (the subjective prong looks to the individual’s affirmative steps to conceal and keep private that which was the subject of the search).

Instead, the insurmountable obstacle to his claim is in the objective portion of the test—whether the expectation is one that society accepts as reasonable. Although our circuit has not yet addressed this question, six circuits have done so over the last two decades and all have held that there is no objectively reasonable expectation of privacy in a conversation that occurs in a squad car. See United States v. Dunbar, 553 F.3d 48, 57 (1st Cir. 2009); United States v. Turner, 209 F.3d 1198, 1200-01 (10th Cir. 2000); United States v. Clark, 22 F.3d 799, 801-02 (8th Cir. 1994); United States v. McKinnon, 985 F.2d 525, 527-28 (11th Cir. 1993); United States v. Fridie, 442 Fed. Appx. 839, 841 (4th Cir. 2011)(unpublished); United States v. Carter, 117 F.3d 1418 (5th Cir. 1997) (unpublished). The reasoning of those courts are instructive. The Tenth Circuit in Turner based its holding on the distinct nature of a squad car, which is a place bristling with electronics in which the practical realities of the situation should be apparent to occupants. 209 F.3d at 1201. It noted that in addition to the microphones to a dispatcher, it is increasingly common for squad cars to possess video recording devices (and in fact one such device was used to record the conversation in this case,) and other electronic and recording devices. Id. Moreover, as a number of circuits have recognized, the squad car is in essence the mobile office of the patrol officer, and the back seat is often used as a temporary jail for housing and transporting arrestees and suspects. Clark, 22 F.3d at 801-02; McKinnon, 985 F.2d at 527. Given the nature of the vehicle and the visible presence of electronics capable of transmitting any internal conversations, the expectation that a conversation within the vehicle is private is not an expectation that society would recognize to be reasonable. We agree with those circuits, and hold that conversations in a squad car such as the one in this case are not entitled to a reasonable expectation of privacy, and therefore the recording of the conversation is not a violation of the Fourth Amendment.

We note that this holding reflects the layout and equipment of the squad car, and express no opinion as to conversations that occur in other vehicles. For instance, Webster relied largely on a district court opinion in United States v. Williams, 15 F. Supp. 3d 821 (N.D. Ill. 2014), in which the court held that there is a reasonable expectation of privacy in conversations that take place in a squadrol or patrol wagon. That decision, however, is inapposite. The Williams court emphasized in its decision that the squadrol had three compartments including two separate rear compartments for prisoners that were physically separated from the front portion of the vehicle in which the officers rode. Id. at 825. The prisoner compartment was separated from the front part by a wall and windows with thick plexiglass through which officers could see but not hear the prisoners, and there were no electronics visible. Id. In finding an objectively reasonable expectation of privacy, the court distinguished the squadrol from the patrol car with its electronics and visibility to the public. Id. at 828-30. Therefore, that case is not helpful to Webster. Because there was no expectation of privacy in the squad car, the recordings did not violate Webster’s Fourth Amendment rights. Webster argues in his reply brief that the transcript of the recording should have been excluded because the government failed to provide an adequate foundation for it, but that argument was not raised in the opening brief and therefore is waived. See United States v. Dabney, 498 F.3d 455, 460 (7th Cir. 2007).

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