What happens if an arresting officer records your conversation with the public defender?

October 8, 2009 1:48 PM

What happens if an arresting officer records your conversation with the public defender?

When you get arrested, at some point the officer will ask if you want to speak to a lawyer. If you say yes, they put you on the phone with a public defender.

As I understand, it is illegal for law enforcement to record that conversation you have with the public defender.

If they do record it, what are the consequences of that? Does that usually affect the outcome of the charges you were originally arrested for?

posted by doomtop to law & government (14 comments total)

They can't use it or what they discover from it ("fruits from a poison tree") against you because it was illegally obtained. If it was used against them at trial, then it's certainly grounds for a mistrial.
posted by inturnaround at 1:58 PM on October 8

I'm not a lawyer but I'm pretty sure that anything recorded during a confidential talk with your lawyer would not be admissible. It may also open up the police officer to charges. But otherwise, it most likely wouldn't affect the rest of the case against you for the original charges. An additional crime isn't a get-out-of-jail-free card for a previous crime.
posted by cschneid at 2:00 PM on October 8

It's a 4th Amendment question, so it hinges on whether you have a reasonable expectation of privacy in the conversation. If you're talking about recording your end of the conversation, you probably don't have an reasonable expectation of privacy if you're in a crowded jail. Plenty of cases have found nothing unconstitutional about recording a defendant's jailhouse phone conversations with private parties and using those recordings at trial. See, e.g., State v. Avery, 211 P.3d 1154 (Alaska App. 2009). United States v. Hatcher, 323 F.3d 666, 674 (8th Cir. 2003) held that prisoners and their attorneys had no reasonable expectation of privacy since they knew their conversations were being recorded. See also United States v. Van Poyck, 77 F.3d 285, 290-291(9th Cir. 1996) (pretrial detainee had no expectation of privacy in phone calls from jail). The courts have split as to whether this lack of expectation of privacy applies to phone calls to attorneys as well.
posted by craven_morhead at 2:14 PM on October 8

Oh, and as for what happens if the court finds that you do have an expectation of privacy and that it's been violated, then that evidence is inadmissible at trial, and the prosecution can't use evidence found as a result of the recording. If they can show that they would have found the same evidence anyway, then it's still admissible. Moreover, if the evidence is objected to, admitted, you're convicted, and you appeal, in most jurisdictions the prosecution will have to show to the appellate court beyond a reasonable doubt that the evidence didn't lead to the conviction, but that standard varies by state.
posted by craven_morhead at 2:16 PM on October 8

As I understand, it is illegal for law enforcement to record that conversation you have with the public defender.

You are confusing, "inadmissable" with "illegal." Any evidence gained from the conversation or the fruits of the conversation (meaning looking under the bench for the murder weapon like you said) is inadmissible in court.

It is only illegal if it is illegal to tape someone's conversations without their consent.


I am not your lawyer.
posted by Ironmouth at 2:27 PM on October 8

Oh, and I, also, am not your lawyer.
posted by craven_morhead at 2:30 PM on October 8

IANAL, so I won't touch the legal aspects. However, in the real world, the police might very well do something like that, not reveal it, but use whatever info they gleaned to help target their investigation and nail you. Afterwards they'll make up some BS about how they came to investigate in that direction in the first place. From reading about police practices, I'm under the impression that the many cops will do anything they can get away with, whether it's legal or not, and the other cops will back 'em up. Better be careful and assume the worst - like that they are in fact listening in on your convos with you attorney... it's not like it hasn't happened plenty of times. Just recently in LA we had two cops on trial for totally framing a guy (they claimed he threw away drugs, while in fact, they planted them), and only got caught because there was a building camera and the building was owned by the father of the guy they were framing. I bet this happens every day, countless times, only the suspects are not amazingly lucky like this guy was.
posted by VikingSword at 4:27 PM on October 8

I am a criminal defense attorney practicing in Vermont. I serve as my county's public defender and handle many cases of driving under the influence. In Vermont, and in other states, a driver has a limited statutory right to a "meaningful" and "reasonably private" consultation with an attorney prior to deciding whether or not to take a breath test in connection with a driving under the influence investigation. While some states also recognize a state constitutional right to consult with an attorney before deciding whether to submit to the test, I know of no case stating that there is a federal constitutional right to consult with an attorney in this situation.

As to what happens when the police record a person's conversation with their attorney depends on where one lives. In Vermont, the court will suppress the results of the breath test (or evidence that the driver refused the test) if the driver can show that the recording somehow inhibited his conversation with the attorney. If the driver did not know he was being recorded, however, he would have a hard time convincing a judge that the recording negatively impacted his consultation.

As a side note, you are correct to use the term "illegal." In states where there is a statutory or state constitutional right to a meaningful consultation with a lawyer, it would be "illegal" for an officer to deny a driver this consultation by refusing to turn off his recording device or denying the driver privacy while on the phone. The remedy for this "illegal" act would not, however, be a criminal proceeding against the officer. It would be, as I explained above, the suppression of evidence. Also, a few very hungry lawyers would be willing to bring a lawsuit on the driver's behalf against the officer.
posted by kellygreen at 5:21 PM on October 8

And, I just answered your question as if you asked specifically about driving under the influence. Can you tell what I've been thinking about today?
posted by kellygreen at 5:40 PM on October 8

They can't use the recording against you, but they can use it against someone else. Like, say, someone you mention during the call. They could also use it to figure out where to look for probable cause (since they can't use the call as PC). Y'know, according to my understanding...IANAL, but the theory is that fruit of the poison tree falls near unpoisoned trees, and police/investigators have been known to work backwards from the poison tree to successfully find valid PC reflected in the fruit's skin (so to speak).
posted by rhizome at 9:39 PM on October 8

rhizome is right, in a roundabout way. You can only assert your own 4th amendment rights to suppress evidence brought against you; you can't assert someone else's 4th amendment rights. So if the cops conduct an unconstitutional search of my house, but find information about you in it, and you don't have an expectation of privacy in my house (though I do), they can use the evidence against you, but not me.
posted by craven_morhead at 8:01 AM on October 9

I am not a lawyer. Can you establish that you have an expectation to privacy by having your lawyer record the call and saying "I don't think anybody's listening in, so we should be able to talk freely."?
posted by Caviar at 8:04 PM on October 9

Caviar, no. By the same logic, you can't walk down a public street and say loudly "I sure am glad that nobody is listening" and establish an expectation of privacy. It needs to be both subjective (you actually think your conversation is private), and objective (an average person would think that your conversation is private).
posted by craven_morhead at 8:32 AM on October 10

I sure am glad that nobody is listening.
posted by Caviar at 6:49 PM on October 10