CA9: Recording pretrial detention inmates’ conversations for witness safety was reasonable

While defendants were in pretrial detention on a RICO indictment, the government apparently surreptitiously recorded conversations between them because there were legitimate witness safety concerns. The court finds no reasonable expectation of privacy in that situation. United States v. Ross, 2019 U.S. App. LEXIS 13039 (9th Cir. Apr. 30, 2019):

The district court also permissibly denied a motion to suppress recordings of Hollins, Foreman, and a third alleged gang member during pretrial detention. Defendants argue this court should follow United States v. Cohen, 796 F.2d 20, 23-24 (2d Cir. 1986), in which the Second Circuit held that a pretrial detainee retained an expectation of privacy to challenge the warrantless physical search of his cell intended solely to bolster the prosecution’s case. The Supreme Court has held that a convicted criminal does not have a Fourth Amendment expectation of privacy while incarcerated. See Hudson v. Palmer, 468 U.S. 517, 530 (1984). The California Supreme Court has extended that conclusion to pretrial detainees, rejecting the approach taken in Cohen. People v. Davis, 115 P.3d 417, 428-29 (Cal. 2005). We do not have to resolve that difference because this case is unlike Cohen. There was no physical search here, and there was evidence the search was not intended solely to bolster the prosecution’s case. The court did not abuse its discretion in finding that these defendants had no reasonable expectation of privacy in their jail cell conversation and that law enforcement recorded their conversation based on real concerns about witness safety. See United States v. Mayer, 560 F.3d 948, 956 (9th Cir. 2009).