Penn. Inmate Visitor Talks Ruled Inadmissible

     HARRISBURG, Pa. (CN) — A prison visiting room phone conversation held between a glass partition cannot be recorded and used as evidence against an inmate on trial, the Pennsylvania Supreme Court ruled.
     Despite the use of handheld phone receivers in noncontact visits in county jail, conversations between an inmate and visitor do not count as telephone communications and therefore cannot be recorded under Pennsylvania’s Wiretapping and Electronic Control Surveillance Act, Wednesday’s ruling states.
     The high court’s 5-2 decision reversed a ruling by Pennsylvania Superior Court judges allowing prosecutors to use as evidence taped conversations between Clinton County Correctional Facility inmate Rahiem Cardel Fant and several visitors.
     Fant was awaiting trial for an alleged stabbing when his lawyer received word that the state planned to use recordings of such conversations against him in court.
     He immediately moved to suppress the tapes as evidence on the grounds that the state Wiretap Act only allowed the recording of telephone conversations, not face-to-face prison communications expedited with two phone receivers and a glass wall.
     Fant’s motion was granted in the trial court, which found that the visitor-to-inmate communication apparatus did not qualify as a telephone because it did not go through as an official phone call with Verizon, the prison’s carrier.
     Before issuing a ruling on the matter, the trial court questioned the jail’s warden, who said that the visit conversation apparatus required a prisoner only to enter his inmate ID number in order to connect, not a telephone number.
     Additionally, the visit conversations are recorded only by the inmate phone company with no involvement from Verizon, the warden said.
     “[T]he every day common use of the word telephone does not include this scenario,” the trial court said in its decision.
     The Commonwealth struck back, taking its case to Pennsylvania Superior Court, which reversed and ruled that the visit conversations still counted as telephone communications because they still “go through and are recorded by the inmate phone company.”
     “The [Wiretap] Act does not distinguish between external and internal telephone calls to or from an inmate in a county correctional facility,” the Superior Court said in its ruling.
     After weighing the exact meaning of the phrase “telephone call,” Justice Christine Donohue of the Pennsylvania Supreme Court came down on the side of Fant and the original ruling.
     Because Fant’s visitation room chats did not qualify as actual phone calls, she wrote, prison officials’ rights to record them were not protected by the Wiretap Act, which permits the taping of prison telephone calls only if both parties in the phone conversation are informed that their call could be recorded.
     Absent a specific definition of a phone conversation within the language of the Wiretap Act, rules of civil procedure required Donohue to define the act of talking on the phone “in its everyday parlance,” the 21-page ruling states.
     All of the conversations at issue were had during “in-person visit[s] bearing few characteristics of what is commonly considered to be a telephone call,” and therefore could not be seen as one, according to the decision.
     “There is no indication that the Wiretap Act carries a buried implication that the term ‘telephone call’ should be given a broader definition than the one that is commonly understood,” Donohue wrote.
     Furthermore, according to the ruling, the very language of the Act suggests that a phone call is a reciprocal activity requiring the dialing of a telephone number and the answering of a phone by the call’s recipient, not just the entry of a prison ID number.
     The Wiretap Act permits surveillance of “any telephone calls to or from an inmate in a facility.” The visitation room conversations are not phone calls because they do not allow calling back and forth as specified by the Act, the ruling states, adding that inmates and visitors do not receive the required recording disclosure before speaking into the devices.
     Wednesday’s decision also struck down the Superior Court’s contention that a phone company is involved the recording of Fant’s visitation conversations after all, with the high court finding that the prison telephone operators recording his chats do not count as an actual phone carrier.
     Chief Justice Thomas Saylor and Justices Debra Todd, David Wecht and Kevin Dougherty joined Donohue in the majority.
     Justice Max Baer wrote a dissenting opinion, in which Justice Sallie Mundy joined.
     “In my view, the plain and ordinary meaning of a telephone call encompasses what occurred here, i.e., the utilization of a telephone to transmit communications from one party to another,” Baer wrote. “Accordingly, I would affirm the order of the Superior Court, which reversed the trial court’s order suppressing the challenged communications.”
     A Pennsylvania Department of Corrections spokeswoman said the ruling would not affect prison operations.
     “The DOC does not record conversations between visitors and inmates during noncontact visits. The communications devices in the settings are not part of the inmate telephone system,” DOC Press Secretary Amy Worden said in an email to Courthouse News.

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