Post details: OH11: No per se rule that there is no reasonable expectation of privacy in a police interview room; here there was


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OH11: No per se rule that there is no reasonable expectation of privacy in a police interview room; here there was

There is no per se rule that there is no reasonable expectation of privacy in a police interview room. Here, the microphone was hidden in the thermostat. It should have been suppressed; however, the harmless error rule applied. State v. Williams, 2013-Ohio-5076, 2013 Ohio App. LEXIS 5278 (11th Dist. November 18, 2013):


[*P31] An intensive inquiry into the facts is necessary to determine whether a reasonable expectation of privacy exists in a certain place under certain circumstances. Given a certain set of facts, a legitimate expectation of privacy may exist though a person is under arrest and in an interrogation room. We do not believe that one can never have a reasonable expectation of privacy in a police interrogation room.

[*P32] The majority of cases conclude there is no reasonable expectation of privacy in conversations that occur in police stations, including interrogation rooms. See, e.g., State v. Strohl, 587 N.W.2d 675, 682 (Neb.1999) ("[t]he greater weight of authority *** has consistently *** upheld the admission of monitored conversations in police stations"); Belmer v. Commonwealth, 553 S.E.2d 123, 128 (Va.App.2001) ("[g]enerally, the federal courts continue to find a suspect has no reasonable expectation of privacy in areas controlled by the police"). However, these cases continue to make a fact-intensive inquiry into whether a reasonable expectation of privacy existed. There are important factual distinctions between these cases and the case at issue.

[*P33] Other courts have found a reasonable expectation of privacy in a police interrogation room under facts similar to those presented here. See, e.g., State v. Calhoun, 479 So.2d 241, 244-245 (Fla.App.1985) (where there was a hidden camera and a Mirandized defendant was left alone to converse with his brother in an interrogation room pursuant to the defendant's request to speak privately with his brother, the conversation was not admissible); State v. Howard, 728 A.2d 1178, 1184 (Del.1998) (because there was no evidence that the defendant was told of the possibility of monitoring or that the defendant could see the camera, the defendant's expectation of privacy was reasonable).

[*P34] The state of Ohio argues that no reasonable expectation of privacy existed when appellant was left alone with his mother in the interview room; it relies mainly on two cases, both of which are distinguishable. First, the Seventh District has held that a defendant in custody did not have a reasonable expectation of privacy in a police interrogation room containing a two-way mirror. State v. Clemons, 7th Dist. Belmont No. 10 BE 7, 2011-Ohio-1177, ¶74-76. The Clemons court placed great weight on the presence of the two-way mirror in distinguishing it from other cases where it was determined that a reasonable expectation of privacy did exist. Furthermore, the Clemons court noted that the defendant had whispered the incriminating statements, indicating he was aware someone might be listening. Id. at 70. In this case, there was no two-way mirror or anything else to indicate the possibility of monitoring. Further, neither appellant nor his mother whispered during the conversation.

[*P35] Second, in Belmer v. Commonwealth, 553 S.E.2d 123 (Va.App.2001), the Virginia Court of Appeals addressed the surreptitious monitoring of a conversation between the defendant and his mother that occurred in the police station's interview room. The Belmer court emphasized that (1) the detective never stated the defendant could speak freely; (2) the defendant knew he was the subject of an armed robbery investigation; and (3) the defendant "had no reason to believe this interrogation room was a 'sanctuary for private discussions.'" Id. at 129. The Belmer court held that, under the circumstances, no reasonable expectation of privacy existed: the room contained a two-way mirror, the conversation was whispered, and signs were posted that indicated the interview rooms were being monitored. Id. at 125. The defendant did not see the signs, but his mother and her boyfriend walked past them. Id. In the present case, there was no two-way mirror, no signs posted, and no whispering by appellant or his mother. Thus, in Belmer, there are facts to support the holding that the defendant had no reasonable expectation of privacy—facts that are not present here.

[*P36] The state of Ohio further takes the position that this case is similar to those related to the recording of conversations in police cars, where it is well-established that a detainee has no reasonable expectation of privacy under the Fourth Amendment. See State v. Ingram, 9th Dist. Medina No. 10CA0022-M, 2010-Ohio-3546, ¶17; State v. Blackwell, 8th Dist. Cuyahoga No. 87278, 2006-Ohio-4890, ¶33-35; State v. Skidmore, 12th Dist. Warren No. CA99-12-137, 2000 Ohio App. LEXIS 3535, *16 (Aug. 7, 2000).

[*P37] The Seventh District has commented on the similarity between a police interview room and the back of a police car, stating, "there is really nothing to distinguish a police interrogation room from conversations in the back of a police car." Clemons, supra, at ¶75. We disagree. Police cars are typically equipped with visible cameras or other recording devices. Therefore, an expectation of privacy in the back of a police car is not reasonable as a matter of course.

[*P38] The problem in this case is that the interrogation room contained no indicia that the activity could be monitored or recorded. Except for the table and chairs, it was an empty room, with no windows or other means of viewing into the room. The only other discernible object in the room was a thermostat. It is not reasonable to suggest that most people would expect a thermostat to be a video and audio recording and monitoring device. If the police truly believe that no reasonable person would have an expectation of privacy in such a room, the recording equipment should not need to be disguised.

[*P39] The reasons given for hiding a recording device in a thermostat are unconvincing. It is disingenuous to assert that the reason for the recording device is to protect against escape, suicide attempts, or the passing of contraband between persons. These goals are readily accomplished with visible equipment. Indeed, if the purpose is to discourage nefarious conduct within interview rooms, a visible camera would be more valuable because its presence would deter such conduct. Hidden recording devices are quite obviously intended to secretively gather evidence for use in criminal prosecutions.

[*P40] The interview room used in this case is actually designed and arranged to suggest activity in the room is not being recorded. As a result, a reasonable person, regardless of his status, would have an expectation that he is not being monitored. Thus, the statements should have been suppressed.


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