State v. Trevino , 2001 Tex. App. LEXIS 6390 ( 2001 )

GREEN, Justice,

dissenting.

I respectfully dissent. Although I joined the majority opinion in State v. Scheineman, 47 S.W.3d 754 (Tex.App.— San Antonio 2001, pet. filed), upon further reflection I believe our holding was incorrect. Today, the majority reaffirms the Scheineman holding that “where a law enforcement official lulls a defendant into believing his conversation with another will be confidential by allowing the defendant to speak privately with the other individual in a separate room but secretly records the conversation solely for purposes of gathering evidence, the defendant’s subjective expectation of privacy is objectively reasonable by societal standards.” Scheineman, 47 S.W.3d at 757.

I believe the majority’s holding is incorrect for two reasons. First, it improperly creates a new per se rule providing that a criminal suspect’s subjective belief that his police interrogation room conversation is private becomes a reasonable and justifiable privacy right if actions by law enforcement officials further the suspect’s belief. Second, assuming the propriety of this new per se rule, the record evidence does not support the majority’s conclusions that Kerr County law enforcement officials “deliberately fostered” an expectation of privacy or that the recording took place “solely for purposes of gathering evidence.”

Per Se Rule

In the majority’s new per se rule, “[t]he determining factor is the use of deliberate misrepresentations by law enforcement authorities to secretly record conversations to gather possible incriminating evidence in the absence of any evidence that the recording was conducted pursuant to a policy for security reasons.” The argument that police action can create a privacy right is misplaced and unsupported by precedent. Courts considering what expectations of privacy society is willing to recognize for criminal suspects focus on where the communications took place, rather than on the actions taken by law enforcement officials.¹

In United States v. Clark, the defendant was a passenger in a car stopped for a traffic violation. Clark, 22 F.3d at 801-02. The officer placed the driver in the back seat of his patrol car while conducting a search of the vehicle, and after the Clark requested to sit with the driver in the back of the patrol car during the search, the officer secretly activated the recorder concealed in the patrol car’s dashboard. Id. at 801. The recorder captured Clark making incriminating statements about the drugs located in the car. Id. In finding Clark had no reasonable expectation of privacy in his conversation, the court analogized the police cruiser to a police officer’s office:

A marked police car is owned and operated by the state for the express purpose of ferreting out crime. It is essentially the trooper’s office, and is frequently used as a temporary jail for housing and transporting arres-tees and suspects. The general public has no reason to frequent the back seat of a patrol car, or to believe that it is a sanctuary for private discussions. A police car is not the kind of public place, like a phone booth, where a person should be able to reasonably expect that his conversation will not be monitored.

Id. at 801-02 (citations omitted). The Clark court, along with the many others following this rationale, recognize that the investigational nature of a police cruiser prevents a reasonable person from believing his speech is private, regardless of whether the patrol officer’s actions furthered the suspect’s subjective belief that his conversation was private. Id.; McKin-non, 985 F.2d at 528.

Just as police cruisers are vehicles of investigation, so are police interrogation rooms locales of investigation. I agree with the courts applying the “location analysis” to criminal suspect’s conversations occurring in police interrogation rooms. See State v. Hauss, 142 Ariz. 159, 688 P.2d 1051, 1054-55 (1984) (holding the recording of the defendant’s conversation with his girlfriend in an interrogation room did not violate the Fourth Amendment or state and federal wiretapping laws); Ahmad A. v. Superior Court, 215 Cal.App.3d 528, 535-36, 263 Cal.Rptr. 747, 751-52 (1989) (holding secret recording of conversation between minor suspect and his mother in interrogation room was admissible) (citing Lanza v. Neiu York, 370 U.S. 139, 143-44, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962)).

Other courts have excluded statements surreptitiously recorded in interrogation rooms by law enforcement officials; however, these courts, while taking issue with officials lulling defendants into making incriminating statements, rely on the existence of a privacy right wholly independent of any police action to conclude that society would find the suspect’s subjective belief as reasonable and justified. See, e.g., North v. Superior Court, 8 Cal.3d 301, 104 Cal.Rptr. 833, 502 P.2d 1305, 1311-12 (1972) (excluding tape recording of conversation between husband and wife due, in part, to spousal communication privilege); State v. Calhoun, 479 So.2d 241, 242 (Fla.Dist.Ct.App.1985). In essence, these courts found the law enforcement officials had attempted to circumvent the invoked Miranda right or applicable communications privilege by recording the criminal suspects.

For example, in State v. Calhoun, officials secretly recorded a conversation between the defendant and his brother after the defendant had invoked his Miranda rights. Calhoun, 479 So.2d at 242. The court affirmed the exclusion of the recording, and although the opinion suggests the defendant’s expectation of privacy arose because the police officers “deliberately fostered” the defendant’s subjective belief, the opinion also provides that “perhaps even more significantly ... the defendant specifically exercised his right to remain silent and his right to counsel.” Id. at 243. The concurring Judge Glickstein emphasized, in agreement with the dissenting Judge Walden, that “[h]ad the suspect in this case not exercised his rights to remain silent and to request counsel, the videotape would have been lawfully obtained evidence.” Id. at 245-46 (Glickstein, J., concurring).

I have found no case where a court has recognized a privacy right in an investigative locale based solely upon a law enforcement official’s “deliberate fostering” of the suspect’s subjective expectation of privacy. Rather, the case law has shown the contrary, recognizing that, in investigative locales, the age-old truism still applies: “Walls have ears.” Cervantes, Don Quixote, pt. II [1615], ch. 48. I decline to join the majority in crafting this new per se rule based solely upon the actions taken by law enforcement officials. Within the context of criminal suspects in interrogation rooms, privacy rights must exist independent of police action, they do not originate from it. Only when law enforcement officials utilize recordings to circumvent invoked constitutional rights or existing communications privileges should courts consider excluding such evidence.

Evidence of the Deliberate Fostering of an Expectation of Privacy

Even assuming the propriety of-the majority’s per se rule, I believe the record is insufficient to demonstrate Kerr County officials “deliberately fostered” or made “deliberate misrepresentations” to further Trevino’s belief that his conversation was private. I also believe the record is insufficient to demonstrate Kerr County officials conducted the recording solely for the purposes of gathering incriminating evidence. The stipulated evidence shows that a Kerr County deputy brought Scheine-man to Trevino’s interrogation room after Trevino asked to speak with Scheineman alone. The evidence also demonstrates Trevino waited for the deputy to leave the room before discussing the crime. Further, it shows Kerr County officials recorded the conversation by videotaping Scheineman and Trevino through a two-way mirror. Although this evidence sufficiently demonstrates Trevino had a subjective expectation of privacy, it does not demonstrate Kerr County officials “deliberately fostered” Trevino’s belief.

In conclusion, precedent demonstrates that while a police officer’s deliberate acts are relevant to prove a criminal suspect’s subjective belief of privacy, the existence of other factors, such as an invocation of Miranda rights or an applicable communications privilege, are necessary for courts to that hold society recognizes the suspect’s subjective belief as reasonable and justified. In this case, the record does not indicate Trevino “clearly and unambiguously” invoked his right to silence or to counsel before asking to speak with his companion in the interrogation room or that his conversation is governed by an applicable communications privilege. Etheridge v. State, 903 S.W.2d 1, 18 (Tex.Crim.App.1994). Further, even assuming the adoption of the majority’s per se rule, the record evidence is insufficient to demonstrate Kerr County officials acted deliberately to foster Trevino’s subjective expectation of privacy. Accordingly, I respectfully dissent.

1 . See United States v. Clark, 22 F.3d 799, 801-02 (8th Cir.1994); United States v. McKinnon, 985 F.2d 525, 527-28 (11th Cir.1993); State v. Crowson, 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389, 393 (1983) (stating, "Objectively, [the suspect] surely had no reason to suspect that his conversation with a suspected accomplice in the back of the police car would be afforded any kind of confidentiality”); People v. Palmer, 888 P.2d 348, 350 (Colo.App.1994); Brown v. State, 349 So.2d 1196, 1197 (Fla.App.1977); State v. Hussey, 469 So.2d 346, 351 (La.App.1985); People v. Marland, 135 Mich.App. 297, 355 N.W.2d 378, 383-84 (1984); State v. Lucero, 96 N.M. 126, 628 P.2d 696, 697 (1981); K.F. v. State, 797 P.2d 1006, 1007 (Okla.Crim.App.1990); Op. Tex. Att’y Gen. No. JC-0208 (2000) (stating a police officer who secretly records a conversation of person seated in police vehicle does not violate the state wiretapping provision); see also Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (holding "society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell and ... accordingly, the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell”).