People v. Diaz

• Decision Date: 21 February 2019
• Docket Number: No. 9,9
• Parties: The PEOPLE of the State of New York, Respondent, v. Emmanuel DIAZ, Appellant.
• Court: New York Court of Appeals Court of Appeals

33 N.Y.3d 92

122 N.E.3d 61

98 N.Y.S.3d 544

The PEOPLE of the State of New York, Respondent,

v.Emmanuel DIAZ, Appellant.

No. 9

Court of Appeals of New York.

February 21, 2019

OPINION OF THE COURT

FEINMAN, J.

The issue in this appeal is whether a correctional facility's release to prosecutors or law enforcement agencies of recordings of nonprivileged telephone calls made by pretrial detainees, who are notified that their calls will be monitored and recorded, violates the Fourth Amendment. We hold that detainees, informed of the monitoring and recording of their calls, have no objectively reasonable constitutional expectation of privacy in the content of those calls ( U.S. Const., amend. IV ). Thus, a correctional facility may record and monitor detainees' calls, as well as share the recordings with law enforcement officials and prosecutors, without violating the Fourth Amendment.

I.

Defendant Emmanuel Diaz was arrested in July 2012 and charged with multiple counts of burglary and robbery. Upon his arraignment on the felony complaint, he was committed to the custody of the New York City Department of Correction (DOC). He was held in one of the Rikers Island Correctional Facilities until his family posted bail. During the eight months before defendant posted bail, he made approximately 1,100 phone calls from prison. At trial, the prosecution sought to introduce excerpts of four phone calls recorded by DOC containing incriminating statements. After colloquy with the parties concerning the notice that had been provided to inmates of the electronic surveillance, Supreme Court admitted the recordings into evidence, over defendant's objection. Defendant was subsequently convicted and sentenced.

The Appellate Division, with one Justice dissenting, affirmed the judgment ( 149 A.D.3d 974, 53 N.Y.S.3d 94 [2d Dept. 2017] ). The majority found that defendant had impliedly consented to the monitoring and recording of his telephone conversations because DOC had given him sufficient notice that his calls would be monitored. The Court determined that the record reflected that DOC had provided several types of notice of the prison's policy to monitor and record inmate telephone calls, including the inmate handbook, signs posted next to the telephones, and a recorded message preceding every phone call made by inmates. The majority held it was not reasonable for defendant to presume an expectation of privacy in the dissemination of the content of his recorded phone conversations. Although it remarked that the "better practice going forward" might be for DOC to expressly notify detainees that the recordings of their calls may be turned over to prosecutors, the majority concluded that the absence of such a warning did not render the calls inadmissible ( id. at 976, 53 N.Y.S.3d 94 ). Additionally, the majority found no merit to defendant's contention that the admission of the recorded phone calls into evidence deprived him of his right to counsel under the Federal and State Constitutions ( id. at 975, 53 N.Y.S.3d 94, citing People v. Johnson, 27 N.Y.3d 199, 205–206, 32 N.Y.S.3d 34, 51 N.E.3d 545 [2016] ).

The dissenting Justice would have held that the calls were inadmissible because defendant was never informed that the recordings of his calls would be made available to the prosecutor for potential use at trial ( Diaz, 149 A.D.3d at 977, 53 N.Y.S.3d 94 [Hall, J.P.] ). The dissent contended that DOC should be required to provide proof that detainees were given express notice that their recorded telephone calls could be turned over to the prosecution for use at trial ( id. at 978, 53 N.Y.S.3d 94 ). Although the dissent recognized that defendant had no reason to expect privacy in his calls, it posited that this did not mean he consented to the prosecution having access to them. The dissenting Justice granted defendant leave to appeal.

II.

In 2008, DOC began monitoring prisoner phone calls pursuant to an amendment to the Rules of the City of New York and the subsequent development of new DOC policies and procedures.¹ Under the Rules of the City of New York, inmates may make telephone calls during their incarceration, but, "[u]pon implementation of appropriate procedures," their calls may be listened to or monitored where they have been given "legally sufficient notice" (40 RCNY 1–10[a], [h] ). As set forth in its Operations Order,² DOC "shall record all inmate telephone calls and retain these recordings," except calls to inmates' attorneys and others included in the Department's "Do Not Record List."³ The Operations Order requires that inmates be notified that their telephone calls will be monitored and/or recorded by three different methods: (1) signs posted near the telephones used by inmates, stating in both English and Spanish that calls are monitored and recorded and that using the phone constitutes consent to the recording or monitoring; (2) a notice in the inmate handbook that calls can be monitored and recorded; and (3) a recording in Spanish or English that plays when an inmate picks up the phone receiver, stating that the call may be recorded and monitored (see Operations Order pp. 8–9, § III[E][1], [2] ).

Defendant asserts that DOC's release of his recorded telephone calls to the prosecution without a warrant violates his Fourth Amendment right to privacy.⁴ Specifically, defendant maintains that a person's consent to governmental intrusion can be no broader than the notice provided. This issue was previously raised in People v. Johnson , 27 N.Y.3d 199, 32 N.Y.S.3d 34, 51 N.E.3d 545 (2016) but was unpreserved. The parties agree that the issue is now properly before us.

III.

"The Fourth Amendment protects ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures’ " ( Carpenter v. United States , ––– U.S. ––––, 138 S.Ct. 2206, 2213, 201 L.Ed.2d 507 [2018] ) and safeguards two interests—retaining possession of property, and maintaining personal privacy (see Texas v. Brown, 460 U.S. 730, 747, 103 S.Ct. 1535, 75 L.Ed.2d 502 [1983] [Stevens, J., concurring with Brennan and Marshall, JJ.]; United States v. Jacobsen, 466 U.S. 109, 113–114, 104 S.Ct. 1652, 80 L.Ed.2d 85 [1984] ). A seizure pertains to the first interest, and a search pertains to the second ( Texas v. Brown, 460 U.S. at 747, 103 S.Ct. 1535 ). The application of the Fourth Amendment depends on whether the person invoking its protection can claim a reasonable expectation of privacy in the face of government action (see Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 [1979] ). A legitimate expectation of privacy exists where a person has demonstrated an actual (subjective) expectation of privacy and that expectation is one that society is prepared to recognize as reasonable (see Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 [1967] [Harlan, J., concurring] ). If such expectations of privacy are lacking, no Fourth Amendment violation occurs (see New York v. Class, 475 U.S. 106, 112, 106 S.Ct. 960, 89 L.Ed.2d 81 [1986] ).

Even if defendant subjectively believed that his calls were private – a notion that is largely belied by the record – that expectation was not objectively reasonable. Given the government's weighty interest in ensuring institutional security and order, surveillance is ubiquitous in the prison context (see Hudson v. Palmer, 468 U.S. 517, 527–528, 529–530, 104 S.Ct. 3194, 82 L.Ed.2d 393 [1984] [an incarcerated individual's "expectation of privacy must always yield to what must be considered the paramount interest in institutional security"]; Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 [1979] ).

For instance, correctional officers routinely conduct warrantless searches of inmates and their cells to keep other inmates and themselves safe (see Bell, 441 U.S. at 547, 99 S.Ct. 1861 ). The logic underlying the routine monitoring and recording of phone calls is no different (see United States v. Hearst, 563 F.2d 1331, 1345 [9th Cir.1977] [detainees' expectations of privacy in their phone calls are superseded by "the government's weighty, countervailing interests in prison security and order"]; see also Lanza v. State of New York, 370 U.S. 139, 143, 82 S.Ct. 1218, 8 L.Ed.2d 384 [1962] ["it is obvious that a jail shares none of the attributes of privacy of a home, an automobile, an office, or a hotel room. In prison, official surveillance has traditionally been the order of the day"]; see e.g. United States v. Willoughby, 860 F.2d 15, 21 [2d Cir.1988] [detention facility's practice of randomly monitoring and recording pretrial detainees' phone calls "in the interest of institutional security is not an unreasonable invasion of the privacy rights of pretrial detainees"] ). In addition, defendant, like all Rikers Island inmates, received a number of prominent, unavoidable warnings that his calls were subject to electronic monitoring and recording by DOC. Because any expectation of privacy in defendant's calls was not objectively reasonable, "the Fourth Amendment is therefore not triggered by the routine taping of such calls" ( United States v. Van Poyck, 77 F.3d 285, 291 [9th Cir.1996] ).

On this basis, federal and state courts across the country have long held that detainees provided with prior notice of the government's monitoring and recording of their phone calls have no reasonable expectation of privacy in the content of the communications (see United States v. Gangi, 57 Fed. Appx. 809, 814 [10th Cir.2003] ; United States v. Friedman, 300 F.3d 111, 123 [2d Cir.2002] ; United States v. Eggleston, 165 F.3d 624, 626 [8th Cir.1999] ; Van Poyck, 77 F.3d at 290–291 ; United States v. Horr, 963 F.2d 1124, 1126 n. 3 [8th Cir.1992] ; United States v. Sababu, 891 F.2d 1308, 1329 [7th Cir.1989] ; United States v. Amen, 831 F.2d at 379–380 ; State v. Gilliland, 294 Kan. 519, 534, 276 P.3d 165, 177 [2012] ; State v. Hill, 333 S.W.3d 106, 126 [Tenn. Crim....