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“Private” Conversations at the Police Department Can Be Recorded and Used Against the Defendant

Every now and then we hear of cases where the state obtains good evidence against a defendant because the defendant made statements that he/she thought were private but could be overheard by the police. The more obvious examples are the calls made by jail inmates to friends and relatives outside of the jail. Those calls are going to be recorded by the state, and anything incriminating said during those calls can be used against the defendant in court.

Less obvious situations occur when a suspect is brought to the police station and allowed to have a “private” conversation with a friend or relative. In two recent cases, the police brought a suspect to the police station to question him. The suspect had a relative present who asked to speak to the suspect privately. The police put them in a room by themselves. In both cases, the police officers recorded the conversations. When the suspect made incriminating statements to their family members, those statements were used to convict the suspects of crimes.

When their cases went to court, the criminal defense lawyers for the suspects filed motions to suppress the incriminating statements to have them thrown out of court. They argued that the defendants had a reasonable expectation of privacy during their “private” conversations with relatives. However, when these conversations take place in a police department, it is unlikely that a court will determine that a suspect or defendant has a reasonable expectation of privacy in any conversation with a police officer, friend or relative in that environment. In other words, if a suspect or defendant is in a police station, he/she has to assume anything he/she says will be recorded and used against him/her in court.

One other issue occurs when a suspect is brought to the police station, read his/her Miranda warnings and decides to invoke his/her right to an attorney and refuses to make a statement. If the police then use someone as an agent, like a friend or relative, to initiate a conversation with the suspect to try and elicit incriminating information, those statements would likely be inadmissible since the state is not allowed to use another person to elicit information from a suspect who has invoked his/her Miranda rights when the police could not do so on their own.