Warrantless interception of communications: when, where, and why it can be done. (Legal Digest).

Law enforcement officers often desire to intercept and 4 record conversations of the subjects of their investigations. Defendants' recorded words can be the strongest evidence obtained against them. Law enforcement officials are permitted to intercept, record, and use these conversations as evidence, provided the interception is accomplished lawfully. For this reason, it is important for criminal investigators to understand when, where, and, most important, why conversations may be legally intercepted and recorded. This article addresses situations in which federal agents are permitted to record conversations without the authority of warrants or court orders. (1) Two points are important to remember. First, when practicable, officers always should seek warrants or court orders authorizing their interceptions of conversations. Second, state and local officers must be aware that constitutional and statutory requirements for interception may be different (and more restrictive) in their states.

The warrantless recording of a subject's conversation falls into one of two categories: those made with the consent of at least one of the parties involved in the conversation and those recorded without the consent of any of the parties involved in the conversation. In both cases, Fourth Amendment (2) and statutory ramifications must be considered.

INTERCEPTION UNDERTAKEN WITH THE CONSENT OF ONE PARTY

The use of confidential informants, cooperating witnesses, and undercover agents is one of the most effective and controversial tools available to law enforcement. Investigators frequently obtain otherwise unobtainable evidence by using these individuals. Often, the evidence obtained by informants, cooperating witnesses, and undercover agents comes in the form of verbal statements made by criminal subjects. Investigators generally are able to employ this method of evidence-gathering without violating either the subjects' Fourth Amendment rights to be free from unreasonable searches and seizures, (3) or their statutorily created rights, regardless of where the intercepted communications are uttered.

Fourth Amendment Considerations

It has long been recognized that the Fourth Amendment protects people, rather than places. (4) However, the Fourth Amendment does not apply to the situation in which subjects speak about criminal activity to, or in the presence of, individuals cooperating with law enforcement. The Supreme Court made clear in Hoffa v. United States (5) that the use of informants to capture the contents of conversations with the subjects of investigations does not violate those subjects' Fourth Amendment rights.

In 1962, James Hoffa was on trial in Nashville, Tennessee, accused of violating a provision of the Taft-Hartley Act. When Eddie Partin, an acquaintance of Hoffa, told federal agents that Hoffa was attempting to bribe members of the jury in his case, they asked him to report any evidence of the bribery. Partin reported information to the agents that he was told, or overheard, while in Hoffa's hotel suite during the course of the trial. When Hoffa subsequently was prosecuted for bribing members of the prior trial jury, he sought to suppress Partin' s testimony as a violation of, among other constitutional provisions, his Fourth Amendment rights. Hoffa argued that "Partin's failure to disclose his role as a government informer vitiated the consent that [Hoffa] gave to Partin's repeated entries into the suite and that by listening to [Hoffa's] statements Partin conducted an illegal 'search' for verbal evidence." (6)

At the outset of its analysis, the Supreme Court recognized that a "hotel room can clearly be the object of Fourth Amendment protection as much as a home or an office." (7) Furthermore, "the protections of the Fourth Amendment are surely not limited to tangibles but can extend as well to oral statements." (8) However, in his majority opinion, Justice Potter Stewart pointed out that Hoffa was not relying on the security of his hotel room to keep information from the government; rather, "he was relying upon his misplaced confidence that Partin would not reveal his wrongdoing." (9) Simply stated, the Court declined to apply Fourth Amendment protection to a ''wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." (10)

Three years prior to the Hoffa decision, the Supreme Court addressed a similar issue involving a subject's misplaced confidence in an Internal Revenue Service agent whom he attempted to bribe. In Lopez v. United States, (11) however, the agent not only testified at trial, but also introduced surreptitious recordings of the conversations that he had with the defendant wherein the defendant offered the bribes. The issue confronting the Court in 1963 was whether the recordings were admissible against the defendant Lopez.

The Court distinguished the surreptitious recordings made in this case from the more traditional "'electronic eavesdropping'...when devices have been used to enable government agents to overhear conversations which would have been beyond the reach of the human ear." (12) Because the agent was a party to the recorded conversations, there was no Fourth Amendment violation that would warrant exclusion of the tapes. In 1971, the Supreme Court reiterated this point by holding that "[i]f the conduct and revelations of an agent operating without electronic equipment do not invade the defendant's constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent." (13)

It is apparent from Hoffa and Lopez that the recording of conversations by governmental actors who are a party to, or are within earshot of, those conversations does not violate the Fourth Amendment's ban against unreasonable searches. In 1999, the U.S. Tenth Circuit Court of Appeals extended this logic one step further. In United States v. Longoria, (14) a confidential informant cooperating with FBI agents surreptitiously recorded conversations involving Abel Longoria. When Longoria was prosecuted, he did not contest the admissibility of the recorded conversations between himself and the informant. However, the informant also recorded conversations between Longoria and others while the informant was present, but that were in Spanish. Longoria argued that those particular recordings should not be admissible because the informant did not understand Spanish. Therefore, according to Longoria, he had not knowingly exposed his conversations to the informant; rather, he exhibited a reasonable expectation of privacy in them. The U.S. Tenth Circuit Court of Appeals disagreed with Longoria.

First, the appellate court pointed out that "comprehension is a malleable," (15) subjective concept. Rather than requiring judges or juries to ascertain whether an individual understood a particular language, the court preferred to eliminate the guesswork. Even more important to the Tenth Circuit's rejection of Longoria' s contention was the ever-increasing multilingual ability of American society. The court recognized that "the informant may very well have concealed his ability to speak Spanish the same as he concealed the recording equipment and his allegiance with law enforcement." (16) The court found the fact that the conversation was audible to the informant to be determinative, not whether the informant was able to understand what he clearly heard.

Federal case law makes clear that law enforcement may use individuals working for the government to record conversations to which they are a party, or overhear (even if they do not understand what they are hearing), without violating the Fourth Amendment to the Constitution.

Statutory Considerations

On the heels of the Supreme Court's Katz decision, (17) Congress passed the Omnibus Crime Control and Safe Streets Act of 1968. Title III (18) (hereinafter "Title III") of that act governs the interception of wire, electronic, and oral communications by the government and private parties. Especially relevant to law enforcement is the provision mandating that communications intercepted in violation of Title III may not be received in evidence during any trial, hearing, or other proceeding before any court. (19) However, not all oral and wire communications are entitled to Title III protection.

For purposes of Title III, an "'oral communication' means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation....,, (20) In other words, Title III does not protect oral conversations that occur under circumstances where the speaker has no reasonable expectation of privacy as defined in federal case law. As the analysis regarding the Fourth Amendment made clear, a person who misplaces his confidence in someone who is cooperating with the government does not have a reasonable expectation of privacy. Consequently, oral communications recorded by a consenting party do not fall within the definition of communications entitled to Title III protection.

Surreptitious recording of telephone conversations is not prohibited by Title III when one party consents. Although the communications satisfy the statutory definition of "wire communication," (21) another provision of Title III explicitly exempts such communications from protection. Title III states that "[i]t shall not be unlawful under this chapter for a person acting under color of law to intercept a wire...communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception." (22)

Clearly, consensual recording of a subject's telephone or personal communications runs afoul of neither constitutional nor statutory provisions. Consequently, this technique remains a legal option for law enforcement to gain invaluable information.

INTERCEPTION UNDERTAKEN WITHOUT THE CONSENT OF ANY PARTY

The antithesis of recording someone's conversations with the consent of one of the parties involved is the recording of conversations in which none of the parties involved has explicitly authorized the interception. At first glance, it seems that this type of interception would violate individuals' privacy rights in their spoken word. Upon closer examination, however, there are several circumstances that allow for such warrantless, nonconsensual interception. The same constitutional and statutory considerations must be examined to determine whether the warrantless interception is lawful.

Fourth Amendment Considerations

The Fourth Amendment prohibits unreasonable government searches. A Fourth Amendment search only occurs when the government intrudes into a person's reasonable expectation of privacy. (23) However, there are places where a person does not have a reasonable expectation of privacy. If the government records conversations in an area where no expectation of privacy exists, it is not conducting a search, and the Fourth Amendment is not implicated. These areas include prisons, patrol cars, and interrogation rooms.

Prison Cells

The Supreme Court has made clear that prison inmates do not have a reasonable expectation of privacy in their prison cells. In Hudson v. Palmer, (24) the Court recognized that "prisons are not beyond the reach of the Constitution." (25) However, the Court continued, "while persons imprisoned for crime enjoy many of the protections of the Constitution, it is also clear that imprisonment carries with it the circumscription or loss of many significant rights." (26) Fourth Amendment protections are among those rights lost by prison inmates. In the words of the Supreme Court, "society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell...." (27) Based on Katz, of course, in order for a person's expectation of privacy to enjoy Fourth Amendment protection, that expectation must be both subjectively (28) and objectively reasonable. (29) Although Hudson did not present a surveillance or electronic monitoring issue, the Court pointed out that "[ a] right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order." (30) While Hudson involved the physical search of an inmate's cell and property, other court opinions provide guidance on whether warrantless electronic surveillance is permissible in the prison setting and against whom such evidence is admissible.

A case involving the interception of a prison inmate's oral communications reached the Supreme Court in 1962, well before its Hudson decision. In Lanza v. New York, (31) the Court addressed a Fourth Amendment challenge to the surreptitious recording of a conversation between a prisoner and a visitor, the prisoner's brother (Lanza). Interestingly, the challenge to the recording came from the visiting brother, not the inmate. The record is unclear as to the circumstances that led to the brothers' conversation being recorded, but that issue did not influence the outcome. The Court quickly dismissed Lanza's challenge to the use of the recorded statements in his subsequent prosecution. In this pre-Katz decision, the Court dismissed the notion that the Fourth Amendment applied inside a prison by noting that "to say that a public jail is the equivalent of a man's 'house' or that it is a place where he can claim constitutional immunity from search or seizure.. .is at best a novel argument." (32) Rather, the Court rea soned, "[i]n prison, official surveillance has traditionally been the order of the day." (33)

Arguably, the 1967 Katz decision changed the Court's view of a challenge similar to that made in Lanza. Because Katz clearly provides Fourth Amendment protection to people rather than places, (34) this would appear to be a valid argument. However, later court decisions demonstrate that the Katz decision did not change the principle set forth in Lanza.

In United States v. Hearst, (35) a 1977 case wherein Patricia Hearst sought to suppress recorded conversations between herself (at the time an inmate of the San Mateo County jail) and a childhood friend who visited her in the jail, Hearst argued that Katz "effectively overruled Lanza or at the very least significantly reduced its precedential value." (36) The Ninth Circuit disagreed. It cited numerous opinions dealing with jailhouse searches and seizures that found Katz and Lanza compatible. (37) The Supreme Court refused to hear an appeal of either the Hearst case or any of the cases cited therein. This refusal makes it apparent that the Supreme Court agrees with the continuing validity of its Lanza pronouncement. Therefore, monitoring and recording of conversations that take place in jail cells or in jail visiting facilities do not violate the Fourth Amendment.

While Lanza and Hearst involved recording of inmate-visitor conversations, the U.S. Eleventh Circuit Court of Appeals was presented with a situation that merged the Hudson issue of jail cell privacy with the Lanza issue of surreptitious recording. In Moody v. United States, (38) Walter Leroy Moody sought to suppress all evidence obtained as a result of electronic monitoring of his prison cell. The monitoring commenced while Moody was jailed in the high-security unit of the Atlanta Federal Penitentiary. The unique aspect of this case is that Moody was alone in his cell, talking only to himself. At his subsequent trial, the government wished to introduce incriminating comments Moody made to himself while in his cell. The Eleventh Circuit affirmed the lower court's rejection of Moody's attempts to suppress the evidence. While the lower court acknowledged that the "basis for [Moody's] attack upon the electronic monitoring of his prison cell is somewhat unclear," (39) it certainly could not have been successfully based on the Fourth Amendment. In addition to the Hudson and Lanza decisions--which dictate that Moody had no reasonable expectation of privacy in his cell--court authorization for this wiretap had been secured. Thus, even his most remote Fourth Amendment challenges had been eliminated.

Possibly the best explanation of why prisoners and their visitors have no reasonable expectation of privacy was expressed by Judge Gee of the U.S. Fifth Circuit Court of Appeals in 1985. In United States v. Harrelson, (40) Charles Harrelson attempted to suppress recorded conversations between himself and his wife made while Harrelson was a prison inmate. The conversations were recorded by an inmate in the cell next to Harrelson's, using equipment provided by the FBI. In denying Harrelson's motion to suppress the evidence, Judge Gee stated that "one who expects privacy under the circumstances of prison visiting is, if not actually foolish, exceptionally naive.

Patrol Cars

Another place where law enforcement officers are free to surreptitiously record conversations is inside a police patrol car. Like jail, individuals do not have a reasonable expectation of privacy in a patrol car and, therefore, are not protected by the Fourth Amendment while there. What an individual placed in a patrol car subjectively believes does not establish a privacy right.

In a novel suppression argument, one subject maintained that the nonexistence of an expectation of privacy in a patrol car should not be a blanket rule. In United States v. McKinnon, (42) Steve McKinnon was placed in the back of a patrol car with Theodore Pressley, the driver of the vehicle in which McKinnon had been a passenger. McKinnon and Pressley were recorded surreptitiously while conversing in the back of the patrol car. They made incriminating statements, and cocaine was located during a consent search of their vehicle. McKinnon argued that his subjective expectation of privacy was one that "society is willing to recognize because the government violated his rights because it did not have probable cause to conduct this secret search." (43) McKinnon's most creative argument, though, was that "the front seat of a police car is equivalent to the officer's office, but the back seat is the office of the arrestee." (44) The U.S. Eleventh Circuit Court of Appeals, following the logic of one federal district court and several state courts, found that McKinnon's arguments failed and that "no reasonable expectation of privacy exists in the back seat area of a police car." (45)

In 1994, the year following the McKinnon decision, the U.S. Eighth Circuit Court of Appeals also held that individuals have no reasonable expectation of privacy in police vehicles. That federal court found that a police car is "essentially the [officer's] office, and is frequently used as a temporary jail for housing and transporting arrestees and suspects. The general public has no reason. ..to believe that it is a sanctuary for private discussions." (46) The analogy of the police car to a temporary jail slams the door on any argument that an expectation of privacy exists in a police vehicle as long as officers do or say nothing to establish that expectation.

Interrogation Rooms

Finally, surreptitious recording of individuals in a police agency's interrogation room is not prohibited by the Fourth Amendment. There is simply no reasonable expectation of privacy in an interrogation room. However, officials should do or say nothing that creates a reasonable expectation of privacy. For example, in Ahmad A. v. Superior Court, (47) an arrested juvenile requested to speak with his mother at the police station. They were allowed to converse in an interrogation room, where the juvenile made incriminating statements about a murder. The statements were surreptitiously recorded by the police. In denying his Fourth Amendment challenge to the admissibility of the remarks, the California court noted that "no representations or inquiries were made as to privacy or confidentiality." (48) A recent Virginia case agreed with the Ahmad A. opinion.

In Belmar v. commonwealth, (49) Akeim Belmar was arrested and taken to police headquarters. He entered through the rear door of the detective bureau and did not pass a sign posted in the front lobby advising those who entered that "interview rooms were 'electronically monitored and may be recorded."' (50) Belmar, therefore, had a subjectively reasonable expectation that his conversation in the interrogation would be private. However, the Virginia court decided that his subjective expectation of privacy was not objectively reasonable. First, the appellate court noted that "federal courts continue to find a suspect has no reasonable expectation of privacy in areas controlled by the police." (51) Specifically addressing interrogation rooms at police stations, the court pointed out that such rooms are "designed for disclosure, not the hiding, of information." (52) Finally, it recognized that the detective involved in the investigation did nothing to "lull" Belmar into believing his conversation would not be monit ored. (53) Clearly, officers should not make assurances to people that will give them an expectation of privacy in a police interrogation room. With no assurances to the contrary, individuals in police interrogation rooms enjoy no reasonable expectation of privacy, leaving their conversations open to warrantless electronic surveillance.

In all three of the preceding areas, courts have found that no reasonable expectation of privacy exists. Where no expectation of privacy exists, no Fourth Amendment search can occur. Therefore, under the U.S. Constitution, no warrant is required to surreptitiously record conversations in prisons, patrol cars, or interrogation rooms, even when no one has consented to the recording.

Statutory Considerations

For the same reasons as in the case of consensual surreptitious recordings, Title III challenges fail when aimed at nonconsensual recordings that are not protected by the Fourth Amendment. Title III defines oral communications as "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation...." (54) Because this definition was intended to incorporate the reasonable expectation of privacy test set forth by the Supreme Court in Katz, (55) nonconsensual recordings made in jails, patrol cars, and interrogation rooms also satisfy Title III restrictions because there is no justifiable expectation that those conversations will not be subject to interception.

Telephone conversations made from jail or police stations normally enjoy no Title III protection either. Clearly, these phone calls satisfy the statutory definition of wire communication, (56) but are not covered for one of two reasons. Some courts have held that individuals making phone calls from these locations have given their implied consent to have the conversations recorded. (57) Because Title III provides that "[i]t shall not be unlawful...for a person acting under color of law to intercept a wire.. .communication, where...one of the parties to the communication has given prior consent to the interception,,, (58) these courts have found that this interception does not violate Title III.

One federal circuit court of appeals does not recognize the implied consent rationale, but allows interception for a different reason. The U.S. Seventh Circuit Court of Appeals, in United States v. Daniels, (59) refused to suppress FBI recordings of a prisoner's phone calls because the surveillance was permitted by the "law enforcement officer in the ordinary course of his duties exception" (60) of Title III. (61) The logic may vary, but, generally, Title III does not prohibit the surreptitious recording of oral or telephonic conversations occurring in jails, patrol cars, or police interrogation rooms.

CONCLUSION

Law enforcement officers who contemplate the interception of their subjects' conversations must consider a myriad of issues: whether entrapment could be successfully argued, whether the conversations involve privileged communications, and whether Fifth or Sixth Amendment rights are impacted. Fourth Amendment and statutory issues also must be considered. This article has explained why, in several different situations, neither the Fourth Amendment nor Title III prevents the interception and recording of conversations. Of course, some state laws will prohibit this technique even when federal law clearly would not. (62) Twelve states have statutes more restrictive than the federal Title III statute in that they require all parties to a conversation to consent to its recording before it may be lawfully recorded. (63) For all practical purposes, this requirement eliminates any warrantless consensual recording in those states.

It is vital for law enforcement officials to recognize when, where, and why the warrantless interception of communications is a viable investigative technique to employ. Not all situations are obvious; yet, this technique can provide incredibly valuable and perfectly legal evidence for prosecutions.

Endnotes

(1.) This article addresses only warrantless interceptions. Court authorized interception must be accomplished in accordance with established restrictions and procedures. See, e.g., 18 U.S.C. ?? 2510 et seq., for the requirements to obtain a federal Title III court order.

(2.) For an in-depth discussion of Fifth and Sixth Amendment constraints on this technique, see K. Crawford, "Surreptitious Recording of Suspects' Conversations," FBI Law Enforcement Bulletin, September 1993, 26-32; and "A Constitutional Guide to the Use of Cellmate Informants," FBI Law Enforcement Bulletin, December 1995, 18-23.

(3.) U.S. CONST. AMEND. IV states, in pertinent part, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...."

(4.) Katz v. United States, 389 U.S. 347 (1967).

(5.) 385 U.S. 293 (1966).

(6.) Id. at 300.

(7.) 385 U.S. at 301, citing United States v. Jeffers, 342 U.S. 48 (1951).

(8.) 385 U.S. at 301 (emphasis added), citing Silverman v. United States, 365 U.S. 505 (1961).

(9.) 385 U.S. at 302.

(10.) 385 U.S. at 302.

(11.) 373 U.S. 427 (1963).

(12.) Id. at 438.

(13.) United States v. White, 401 U.S. 745, 751 (1971).

(14.) 177 F.3d 1179.

(15.) Id. at 1183.

(16.) 177 F.3d at 1183.

(17.) Supra note 4.

(18.) 18 U.S.C. [ss] 2510 et seq.

(19.) 18 U.S.C. [ss] 2515.

(20.) 18 U.S.C. [ss] 2510(2).

(21.) 18 U.S.C. [ss] 2510(1) defines wire communication as any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications or communications affecting interstate or foreign commerce.

(22.) 18 U.S.C. [ss] 251l(2)(c).

(23.) Supra note 4.

(24.) 468 U.S. 517 (1984).

(25.) Id. at 523.

(26.) 468 U.S. at 524.

(27.) 468 U.S. at 526.

(28.) Katz, 389 U.S. at 361 (Harlan, J., concurring).

(29.) Id.

(30.) 468 U.S. at 527-528 (emphasis added).

(31.) 370 U.S. 139 (1962).

(32.) Id. at 143.

(33.) 370 U.S. 143.

(34.) Katz, 389 U.S. at 351.

(35.) 563 F.2d 1331 (9th Cir. 1977), cert. denied, 435 U.S. 1000 (1978).

(36.) Id. at 1345.

(37.) 563 F.2d at 1345, citing United States v. Dasvson, 516 F.2d 796, 805 (9th Cir.), cert. denied, 423 U.S. 855 (1975); United States v. Hitchcock, 467 F.2d 1107, 1108 (9th Cir. 1972), cert. denied, 410 U.S. 916 (1973).

(38.) 977 F.2d 1425 (11th Cir. 1992), cert. denied, 507 U.S. 1052 (1993).

(39.) United States v. Moody, 762 F. Supp. 1491, 1498 (N.D. Ga. 1991).

(40.) 754 F.2d 1153 (5th Cir.), cert. denied, 474 U.S. 908 (1985).

(41.) Id. at 1169.

(42.) 985 F.2d 525 (11th Cir.), cert. denied, 510 U.S. 843 (1993).

(43.) Id. at 527.

(44.) 985 F.2d at 527.

(45.) Id.

(46.) United States v. Clark, 22 F.3d 799, 801-802 (8th Cir. 1994).

(47.) 263 Cal. Rptr. 747 (Cal. App. 2 Dist. 1989), cert. denied, 498 U.S. 834 (1990).

(48.) Id. at 751.

(49.) 553 S.E.2d 123 (Va. App. Ct. 2001).

(50.) Id. at 125.

(51.) 553 S.E.2d at 128.

(52.) 553 S.E.2d at 129.

(53.) Id.

(54.) Supra note 20.

(55.) See, e.g., Longoria, note 14.

(56.) Supra note 21.

(57.) See, e.g., Gilday v. Dubois, 124 F.3d 277, 289 (1st Cir. 1997); U.S. v. Workman, 80 F.3d 688, 692-694 (2nd Cir. 1996).

(58.) Title 18 U.S.C. [ss] 2511(c).

(59.) 902 F.2d 1238 (7th Cir. 1990).

(60.) Id. at 1245.

(61.) 18 U.S.C. [ss] 2510(a)(ii).

(62.) See, e.g., State v. Gerasv, 795 A.2d 1219 (Vt. 2002), where the Vermont Supreme Court found that the warrantless and surreptitious electronic recording of a face-to-face conversation by a known police officer in a defendant's home violated his right to privacy under the state constitution.

(63.) Kermit L. Hall, The Oxford Companion to American Law, 841 (2002).

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

Special Agent Schott is a legal instructor at the FBI Academy.