CA1: Client impliedly consented to telephone calls from jail to lawyer

Telephone calls from client to lawyer resulted in the lawyer being charged with obstruction and money laundering in an allegedly corrupt effort to file false affidavits to lessen the client’s criminal history. Calls from the jail were subject to monitoring, and the client knew it. Therefore, the client impliedly consented to the recording of the calls. Since the motion to suppress was filed on Fourth Amendment grounds only, the court does not reach the Sixth Amendment issue. United States v. Novak, 2008 U.S. App. LEXIS 13764 (1st Cir. June 30, 2008) (opinion by Sandra Day O’Connor), rev’g United States v. Novak, 453 F. Supp. 2d 249 (D. Mass. 2006):

No doubt, the monitoring of Holyoke’s calls to his attorney presents a significant Sixth Amendment issue. Cf. Swidler & Berlin v. United States, 524 U.S. 399, 403 (1998) (discussing importance of attorney-client privilege); United States v. Mastroianni, 749 F.2d 900, 907 (1st Cir. 1984). Novak, however, does not raise a Sixth Amendment challenge to the introduction of these recordings; he claims, instead, that monitoring of the calls violated his Fourth Amendment rights.

The district court believed that the prison’s failure to tell Holyoke of his right to exempt calls to his attorney from monitoring nullified Holyoke’s consent. It stated that Holyoke did not consent freely to the monitoring because he believed he had no other option but to submit to recording if he wished to talk to Novak by telephone. Under such circumstances, the district court reasoned, “ ‘implied consent’ in this sense is not a free and voluntary consent; it is instead no more than a choice between unattractive options. …” Novak, 453 F. Supp. 2d at 259 (quoting Langton v. Hogan, 71 F.3d 930, 936 (1st Cir. 1995)),

This argument, however, proves too much. While the district court found Novak and Holyoke had a protected interest in the privacy of their conversation precisely because they were attorney and client, under Title III, consent is also required for monitoring of all prison calls. The district court’s argument that Holyoke’s implied consent under these circumstances was invalid is inconsistent with First Circuit precedent holding such consent to be adequate, notwithstanding the smaller number of choices that an inmate in that circumstance has. Footman, 215 F.3d at 155.

This Circuit has held that recordings obtained under similar circumstances between an inmate and a non-attorney did not violate the Fourth Amendment. Id. The inmate in Footman was given no choice but to accept monitoring of the calls. Notwithstanding his inability to opt out of monitoring, this Circuit held that his consent was effective.

It is no doubt significant that one of the parties to the conversation in this case is an attorney. That significance, however, does not arise out of the Fourth Amendment’s prohibition against unreasonable searches and seizures. Instead, it is attached to the protections that the Sixth Amendment affords to the attorney-client relationship. Holyoke’s consent, for Fourth Amendment purposes, was adequate to support the monitoring of his calls to Novak.