Recorded Prison Calls May Be Used Against You, NY Court Rules

ALBANY, N.Y. (CN) – Siding with a prison that provided prosecutors with incriminating inmate recordings, New York’s highest court ruled 5-2 Thursday that there is no right to privacy when it comes to nonprivileged phone calls.

The decision from the New York Court of Appeals arose from the prosecution of Emmanuel Diaz on robbery and burglary charges stemming from a home invasion.

After his July 2012 arrest, Diaz spent eight months in the Rikers Island Correctional Facility before his family was able to post bail. By the time he went to trial, however, Diaz learned that prosecutors had gathered some new evidence: a series of incriminating statements Diaz made during four phone calls to his father from Rikers.

In one of the calls, Diaz insisted that his face was “covered up” during the home invasion. 

“I didn’t beat no one up,” Diaz also said. “There was no fucking weapon.”

Though Diaz claimed that the release of these recorded calls violated his Fourth Amendment rights, the trial court disagreed, and Diaz was convicted and sentenced.

Rejecting the inmate’s ensuing appeal, Judge Paul Feinman wrote for the majority in Albany on Thursday that Diaz had implied consent.

Indeed for each of the the 1,100 phone calls Diaz made from prison, the mere act of picking up the phone triggered a recording, in Spanish and in English, informing him that his call may be monitored and recorded.

Such warnings are repeated on signs in the telephone area, as well as in an inmate handbook.

Joined by Judge Jenny Rivera, Judge Rowan Wilson hinged his dissent on the lack of notice to inmates that their calls, in addition to being recorded and monitored, would be handed to prosecutors.

“Nothing in this case justifies the governmental intrusion of Mr. Diaz’s privacy inherent in the district attorney’s essentially unfettered access to the recordings of nonpriviledged telephone calls made by pretrial detainees,” Wilson wrote.

The majority disagreed, ruling that the posted warnings by the state do not restrict how it can use the recordings it makes.

Noting that prison officials often toss inmate cells without warning, or conduct warrantless searches of inmates to keep prisons safe, Feinman also underscored the point that “surveillance is ubiquitous in the prison context.”

“Even if [Diaz] subjectively believed that his calls were private — a notion that is largely belied by the record — that expectation was not objectively reasonable,” Feinman wrote.

Prisons in New York City began monitoring inmate phone calls starting in 2008, but calls with attorneys or others included on a “Do Not Record List” are exempted.

In comparison to Feinman’s 9-page opinion, Wilson’s dissent stands at 26 pages.

“We come back around, then, to 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,” Wilson wrote. “We might obtain a higher conviction rate with rubber hoses or waterboards, but that is not the civilization we want.”

The dissent also draws a distinction between how the state treats pretrial detainees, like Diaz, versus defendants out on bail.

“For a criminal defendant who is not detained but is instead on bail, the Fourth Amendment undoubtedly requires law enforcement to obtain a warrant to monitor that person’s calls,” Wilson wrote. “As a pretrial detainee not convicted of any crime at the time the phone recordings at issue in this case were made, Mr. Diaz is, as a starting point, entitled to that same level of constitutional protection.”

Wilson also emphasized that inmates do not automatically give consent even after prisons give notice their calls might be recorded.

“Mr. Diaz’s consent to a search by DOC, a non-law enforcement governmental entity, for its own security purposes cannot reasonably be construed to include consent for the district attorney — a law enforcement entity — to search that information for prosecutorial purposes,” he wrote. 

The scathing dissent ends with an emphasis that the core principles of privacy law must be upheld even when technology changes.

“Fourth Amendment law, and privacy law more generally, must adapt to times in which we, like Mr. Diaz, have no realistic choice but to divulge information to third parties for a specific purpose, yet retain our rights against the warrantless seizure of that information by the government,” he wrote.

Dina Zloczower, an attorney with  Appellate Advocates who represented Diaz, declined to comment the ruling.

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