Criminal arrestees should not expect 4th Amendment protection of their conversations in police vehicles
Virginia criminal attorney on the weakness of Fourth Amendment protection of conversations in police vehicles
Fairfax criminal lawyer pursuing the best defense
Police sometimes will put more than one co-defendant-arrestee in the same police vehicle, to transport to the jail or police station. It may be tempting for the arrested co-defendants then to begin talking in hushed tones. However, if they are being recorded — surreptitiously or not — good luck for their later efforts to use the Fourth Amendment in seeking to suppress such recordings, and good luck with their expecting their hushed tones to bypass audibility by audio-recording devices.
The Seventh Circuit recently stated that:
“[F]ederal and state courts ha[ve] concluded with apparent unanimity that a person has no objectively reasonable expectation of privacy while seated in a marked patrol car. See United States v. Dunbar, 553 F.3d 48, 57 (1st Cir. 2009); United States v. Turner, 209 F.3d 1198, 1200–01 (10th Cir. 2000); Clark, 22 F.3d at 801‐02; McKinnon, 985 F.2d at 527–28; United States v. Fridie, 442 F. App’x 839, 841 (4th Cir. 2011) (per curiam) (non‐precedential decision); United States v. Carter, 117 F.3d 1418 (table), 1997 WL 336290 (5th Cir. June 5, 1997) (per curiam) (unpublished); United States v. Sallee, No. 91 CR 20006‐19, 1991 WL 352613, at *2 (N.D. Ill. Oct. 24, 1991) collecting state cases); State v. Torgrimson, 637 N.W.2d 345, 350 (Minn. Ct. App. 2002); State v. Ramirez, 535 N.W.2d 847, 850 (S.D. 1995) (collecting cases); State v. Smith, 641 So.2d 849, 852 (Fla. 1994); People v. Crowson, 660 P.2d 389, 392‐93 (Cal. 1983) (plurality), overruled in part on other grounds by People v. Myers, 858 P.2d 301 (Cal. 1993). Those holdings have deemed it immaterial whether the individual has been arrested, temporarily detained, or simply invited to sit in the car while the police conduct an investigation. See, e.g., Turner, 209 F.3d at 1201 (“whether an individual is in custody does not materially affect an expectation of privacy in a police car”) (following McKinnon, 985 F.2d at 528 (“[w]e find no persuasive distinction between pre‐arrest and post‐arrest situations in this case”) (collecting cases)).”
U.S. v. Cornelius Paxton, ___ F.3d ___ (7th Cir., Feb. 17, 2017).
Paxton applies its ruling to all types of police vehicles:
“This case requires us to confront the issue we left open in Webster and to decide whether the unique features of police vans and squadrols support an expectation of privacy that society is prepared to recognize as reasonable. Although we agree with Judges Castillo and Gettleman that distinctions can be drawn between a squad car on the one hand and a police squadrol or van on the other, we believe those distinctions matter more as to a detainee’s subjective expectation of privacy than they do to the objective reasonableness ofthat expectation of privacy. The enclosed nature of the detainee compartment in a van like the one used to transport the defendants in this case may cause a detainee to think that he cannot be overheard. See R. 156‐1 (declaration of Matthew Webster) ¶ 3 (“I believed that the conversation was private because it was in a separate, enclosed area of the paddy wagon and not in a squad car, and because we had the conversation when no agents or officers were present and the van door was shut … .”). But given the inescapable fact that a detainee has been taken into custody and placed into a marked police vehicle for transport to a law enforcement facility, we are not convinced that any expectation of privacy on the part of the detainee in the van is one that society is prepared to recognize as reasonable.”
Of course, when a person does not have a reasonable expectation of privacy, Fourth Amendment protection does not apply. Rideout v. Virginia, 62 Va.App. 779, 785-86 (2014).