State Court Says There’s A Reasonable Expectation Of Privacy In Conversations With Non-Cops In Interrogation Rooms
Kind of an odd bit of Fourth Amendment jurisprudence here, given all the factors. (h/t FourthAmendment.com)
Obviously, some conversations have an expectation of privacy, even when they're held in police interrogation rooms. Those would be ones between the suspect and their legal representation. But that's not really a Fourth Amendment issue as it is about privileged communications. The government isn't allowed to eavesdrop on suspects as they work on a legal defense and/or make statements to their lawyer.
Then there's the assumption that pretty much everything a cop would like to listen to is recorded, starting with anything said in interrogation rooms (minus attorney-client communications) and ending with phone calls placed from jail phones. (On the other hand, if a cop doesn't want anyone to hear the conversation, recordings in interrogation rooms just disappear, or never spring into existence.)
That's one assumption of the expectation of privacy: there isn't one. But, as this decision [PDF] from the Supreme Court of Rhode Island points out, there can be an expectation of privacy in interrogation room conversations with people who aren't cops. It won't work for everyone. There are a lot of things that need to happen, beginning with a solid invocation of rights by the person being interrogated.
It began this way:
On February 6, 2020, at approximately 6:15 a.m., Providence police officers executed an arrest warrant at the home of [Marklyn] Brown's mother and apprehended Mr. Brown. Later that morning, at approximately 9:45 a.m., five different Providence police officers began questioning Mr. Brown in an interview room at the police station about his alleged involvement in Ms. Pereira-Roldan's death, and sought to obtain a confession from him. Throughout the duration of this interrogation, the interrogating officers engaged in repeated attempts (1) to convince Mr. Brown that the state had obtained overwhelming evidence of his guilt in this matter; (2) to persuade Mr. Brown to admit his involvement in killing Ms. Pereira-Roldan based on a theory that he accidentally shot her; and (3) to pressure Mr. Brown into accepting responsibility for his alleged actions through their insistence that he had a moral obligation to do so.
The usual coercion didn't work. Marklyn Brown steadfastly refused to talk to the police officers. He repeatedly expressed his willingness to speak to only one person: his mother. This statement - along with all his refusals to talk to the officers - was captured by the PD's recording devices.
MR. BROWN: I want to talk to my mom. That's all I want to talk to.
[DETECTIVE] MICHAEL: I can make that happen. I can definitely make that happen. 'Cause we told your mom that we would call her. Your mom doesn't know what's going on, just to let you know. Okay? I will get on making a call to your mom to come down here. Okay?
MR. BROWN: Yeah, 'cause that's the only person I really want to talk to as of, like, right now. Only person I want to talk to."
Despite explicitly acknowledging the facts that Brown would not talk to them and only wanted to talk to his mom, the officers continued interrogating him for another three hours. Detective Michael's promise to get on" that phone call to Brown's mom was apparently just another of those famous cop conversational tactics. You know: a lie.
Finally, the officers did bring in Brown's mom to talk with him. The officers then implied he was being left alone to have a private conversation.
MR. BROWN: WHAT'S GOING ON?
[DETECTIVE] OTRANDO: Boss. Mom's here.
MR. BROWN: All right. How can I speak with her?
[DETECTIVE] OTRANDO: We're gonna bring Mom in here.
MR. BROWN: Okay.
[DETECTIVE] OTRANDO: We're gonna leave this room.
MR. BROWN: Fair enough. I appreciate that."
The detectives then physically left the room to give Brown the privacy they insinuated they were providing him with. But they didn't shut off their recording devices. They listened in on this private" conversation, interrogated Brown for three more hours, and then finally allowed him to return to his cell.
This led to the trial court suppressing the evidence the cops had obtained by eavesdropping:
Ultimately, the trial justice suppressed both the interrogation, beginning at page twenty-two of the interrogation transcript, and Mr. Brown's entire conversation with his mother. The trial justice determined that Mr. Brown asserted his right to remain silent when he stated that he wanted to speak with his mother and only with his mother, thus clearly implying that he did not want to speak with them. With respect to Mr. Brown's conversation with his mother, the trial justice determined that those same statements to the interrogating officers, recorded on page twenty two of the interrogation transcript, also clearly implied that Mr. Brown reasonably expected that the officers would not involve themselves in his conversation with his mother when left alone with her. In evaluating Mr. Brown's expectation of privacy, the trial justice noted the lack of evidence indicating that the interrogating officers informed his mother that they would record their conversation. Finally, the trial justice supported his decision to suppress the remainder of the interrogation by referencing Mr. Brown's affirmative statement, once the interrogation resumed, that he did not wish to answer any further questions.
The government appealed this decision, arguing that there's no expectation of privacy in conversations held in interrogation rooms where cops have access to recording devices. But that's simply not true, says the court. And the Rhode Island State Constitution. And the US Constitution.
Brown had made it exceedingly clear he was going to exercise his right to remain silent by refusing to talk to the officers. He also made it clear he only wished to speak to one person, who definitely wasn't a cop. The cops led him to believe this conversation would be private. They made the same insinuation to his mother when she was allowed to speak to him.
It was only after they'd already violated the Constitution that they went in and made it clear to Mr. Brown that they'd done exactly that. Unbelievably, it's this unforced error the government thinks should have waived any privacy expectations Brown might have had.
[SERGEANT] ZUENA: Trying to help you out, man. She's trying to help you out, man. She told a few things, what you guys discussed, man. That's all. I'm just telling you. How the * * * would I know that?
MR. BROWN: Camera.
[SERGEANT] ZUENA: The cam-, what's the camera got to do with it?
MR. BROWN: There's a camera in this room, and it's probably being voice-recorded. I know what you guys do in an interrogation room."
Aha! said the government. He did know his private" conversation was being recorded, ipso facto no expectation of privacy.
But that's not how this works, says the court. Not under the Constitution, whether it's the one put together by the federal government or the one we've erected in Rhode Island.
Mr. Brown's acknowledgement of Sgt. Zuena's awareness of the content of the conversation simply demonstrates that, during this interaction with Sgt. Zuena, Mr. Brown learned that the police had eavesdropped on his conversation. The fact that Mr. Brown identified the medium through which the police monitored the conversation does not necessarily imply that Mr. Brown knew, from the inception of the conversation, that the interrogating officers were recording it.
And arguing that Brown should have assumed any conversation he had in this room would be listened to by cops misses the point, as well. Just because it might be reasonable to assume this doesn't mean a reasonable expectation of privacy in conversations with non-cops simply doesn't exist. Especially not when a suspect has already invoked (even indirectly) the right to remain silent by making it clear they will not talk to cops. That all of this occurred in the confines of a police interrogation room changes nothing.
First, we have unmistakably held that the Fourth Amendment and article 1, section 6 of the Rhode Island Constitution protect people, not the locations they find themselves in. Where, as here, interrogating officers create an environment that reasonably allows an individual suspected of a crime to believe that they may have a private conversation, an objectively reasonable expectation of privacy in the content of that conversation exists.
Second, we have held that law enforcement officers lack the authority to engage in an indirect interrogation of a suspect when they do not have the authority to proceed with a direct interrogation. Even if this Court assumed that Mr. Brown had a full awareness that the interrogating officers recorded his conversation from the outset, Mr. Brown's invocation of his right to remain silent prevented them from attempting to extract further information in support of their investigation.
That's the key part there: because he had invoked his right to remain silent, even without a recognized expectation of privacy, the officers would have still been denied access to this evidence because it was obtained by someone else and never offered directly to the officers by the person on the other end of the conversation.
Of course, this just means the cops are free to try to sweat down the other end of the conversation. But since they're not suspected of any criminal acts, they've got more options, including a flat refusal to discuss the conversation. And if the only reason officers are interested in this person because they eavesdropped on a conversation the conversants assumed would be private, they can't even use this illicit information gain as leverage against the non-suspect.
So, it is held: there's a reasonable expectation of privacy in some conversations occurring in cop sweat boxes, but probably only in cases where rights have been invoked and cops have been dumb enough to ensure people their conversation would be private shortly before they all put their headphones on and started listening in.