Plaintiff did not state a claim for violation of Fourth and Sixth Amendment rights because the police recorded a telephone call between him and his lawyer while awaiting a breath test. An officer was in the room, and he was being videorecorded at the time. The events leading up to the breath test was not a critical stage. Mattson v. Becker County, 2008 U.S. Dist. LEXIS 61510 (D. Minn. August 12, 2008):<\/p>\n
The Eighth Circuit’s holding in Sherbrooke dictates that Mattson’s claim of being subjected to an unconstitutional search and seizure fails and Defendants are granted summary judgment on this claim. Mattson knew that Haverkamp was in the room during his conversation with his attorney and thus could not reasonably expect that his conversation was private. Further, Mattson testified that he knew he was being recorded because the camera was above him in plain view. Mattson Dep. at 52. Accordingly, Mattson was not subjected to an unreasonable search and seizure and his Fourth Amendment rights were not violated.<\/p>\n
. . .<\/p>\n
At the time Mattson spoke with his counsel, his Sixth Amendment right to counsel had not yet attached. Kirby v. Illinois<\/em>, 406 U.S. 682, 689, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972) (holding that the Sixth Amendment right to counsel attaches upon the commencement of formal judicial proceedings); see also City of Belle Plaine v. Stradcutter<\/em>, 568 N.W.2d 545, 547 (Minn. Ct. App. 1997) (discussing State v. Nielsen<\/em>, 530 N.W.2d 212 (Minn. Ct. App. 1995), and explaining that “the process of chemical testing in a DWI investigation is not a ‘critical stage’ upon which the right to counsel attach[es]” because the defendant does not have a choice to refuse testing). Because Mattson’s right to counsel had not yet attached, the County did not violate his constitutional rights when Haverkamp remained in the room while Mattson spoke to his attorney or when it recorded Mattson’s portion of the conversation.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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