Issue before the Court: Does DOC’s release to prosecutors or law enforcement agencies of non-privileged telephone calls made by pretrial detainees, who are notified that their calls will be monitored and recorded, violate the Fourth Amendment?

 

Held:  No.  Detainees informed of the monitoring and recording of their calls, have no objectively reasonable expectation of privacy in those calls.  The correctional facility can record and monitor detainees calls and share them with law enforcement without violating the Fourth Amendment.

 

Discussion: Diaz argued that because the Rikers  had not advised him that his calls could be turned over to the prosecution for use in his criminal case and his consent to the intrusion could be no broader than the notice provided, the disclosure of the calls to the prosecution violated the Fourth Amendment.  

 

Judge Feinman, writing for the majority, held that even if Diaz subjectively believed his calls would be private -- a notion belied by the record given all the forms of notice provided to Rikers inmates, – that expectation of privacy could not be deemed reasonable in light of the government’s weighty interest in ensuring a prison’s institutional security.   Given the diminished expectation of privacy in prisons, there can be no legitimate claim to Fourth Amendment protection for prisoner phone calls.   The Court noted that any challenge to the “voluntariness” of the consent to the monitoring and recording of the phone calls or claims that Diaz’s rights to due process and equal protection were violated were not preserved.

 

Judge Wilson in a lengthy dissent, joined by Judge Rivera,  argued that “Diaz’s consent to a search by DOC, a non-law enforcement government entity, for its own security purposes cannot reasonably be construed to include consent for the District Attorney–a law enforcement entity–to search information for prosecutorial purposes.”   The dissent questioned “whether we, as a society, want to prosecute crime by jailing suspects for lengthy periods of time in relatively inaccessible locations and monitoring their calls for statements that might be used against them.”  

 

CAL Observes: Sadly, the Court seems untroubled by the type of society the dissent described and clueless concerning the desperation and isolation  poor people face while awaiting trial on Rikers.  Once again, the Court left a small door open to future constitutional challenges to the voluntariness of consent under these circumstances.  The way forward seems to be developing a record of an individual client’s circumstances to undercut the validity of the consent found to have been given by Diaz.