Untitled Texas Attorney General Opinion ( 2000 )

OFPlCE OF THE ATTORNEY GENERAL. STATE OF TEXAS
JOHN CORNYN
April 12,200O
The Honorable Michael A. Sheppard Opinion No. K-0208
District Attorney
24th Judicial District Re: Whether a police offtcer who secretly
307 North Gonzales records or broadcasts asuspect’s conversationin
Cuero, Texas 77954 a police car violates section 16.02 of the Penal
Code (RQ-0145-JC)
Dear Mr. Sheppard:
You have requested our opinion as to whether a police officer who secretly records or
broadcasts a suspect’s conversation in a police car violates section 16.02 of the Penal Code. For
reasons that will appear below, we conclude that the officer does not.
You provide the following context for your request:
Increasingly, police agencies are equipping their vehicles with
dash-mounted video equipment for video taping criminal scenes that
occur in front of the police car. These systems typically have the
ability to also record conversations within the car. Some can
broadcast any conversations that occur within the patrol car so that
the officer, several yards away, can hear on his radio what is being
said by the occupants. This equipment can be quietly turned on, so
that the occupants of the car are unaware that everything they say is
being recorded or broadcasted. Additionally, some agencies have
opted to simply equip their patrol cars with a hidden tape or mini-disc
recorder, which also has the ability to secretly record any
conversations that take place in the police car.
A tactic which is evolving, is to place two or three subjects in
the back seat of a patrol car equipped with such a radio/recording
device, and then to find some excuse to leave the subjects alone in the
patrol car, after quietly turning on the device. This is most commonly
used during road-side searches of vehicles.
This tactic frequently results in recording conversations in
which the subjects discuss where they have hidden contraband in
The Honorable Michael A. Sheppard - Page 2 (JC-0208)
their vehicle, as well as other statements pointing to their knowing
participation in a criminal enterprise. Besides being useful in locating
hidden contraband, this evidence can also be used in court to prove
criminal knowledge and intent.
The radio broadcasting of the subjects’ conversation can tip-
off the searching officer to any plans the subjects in his patrol car
may have to attack him when he returns to the patrol car or the
presence of weapons they might have on them. Sometimes drug
smuggling operations consist of a vehicle hauling the contraband,
with a second vehicle following behind, with armed guards or
“enforcers.” The secret broadcasting of the search subjects’
conversations will sometimes reveal this information. In any of these
scenarios the broadcast of the subjects’ conversation provides
significant additional safety to the listening officer.
Letter horn Honorable Michael A. Sheppard, District Attorney, 24th Judicial District, to Opinion
Committee, Office ofthe Attorney General, at l-2 (Nov. 8,1999) (on file with Opinion Committee).
Section 16.02 of the Penal Code provides, in relevant part:
(a) In this section, “covert entry,” “comnnmication common
carrier,” “contents, ” “electronic, mechanical, or other device,”
“intercept,” “investigative or law enforcement officer,”
“oral communication,” “electronic communication,” “readily
accessible to the general public,” and “wire communication” have the
meanings given those terms in Article 18.20, Code of Criminal
Procedure.
(b) A person commits an offense if he:
(1) intentionally intercepts, endeavors to intercept, or procures
another person to intercept or endeavor to intercept a wire, oral, or
electronic communication.
TEX.PEN.CODE ANN. 5 16.02(a), (b)(l) (Vernon Supp. 2000). “Oral communication” is defined in
article 18.20 of the Code of Criminal Procedure, as “an oral communication uttered by a person
exhibiting an expectation that the communication is not subject to interception under circumstances
justifying that expectation.” TEX.CODE GRIM.PROC.ANN. art. 18.20, 4 l(2) (Vernon Supp. 2000).
We may assume that, under the circumstances you describe, the suspect exhibits “an expectation that
the communication is not subject to interception.” Thus, the key inquiry is whether the suspect’s
expectation occurs “under circumstances justifying that expectation.”
The Honorable Michael A. Sheppard - Page 3 (``-0208)
No Texas court has construed the relevant provision of the Penal Code, but numerous other
courts, both state and federal, have considered similar statutes. As long ago as 1972, a court in
California held that, where a defendant is seated in a police patrol car, “society is [not] prepared to
recognize his expectation ofprivacy to have been reasonable.” People v. Todd, 102 Cal. Rptr. 539,
541 (Cal. Ct. App. 1972). Prior to July, 1984, at least two other state courts reached a similar
conclusion. See State Y.Lucero, 628 P.2d 696,698 (N.M. Ct. App. 198 1) (“When they sat in Officer
Heshley’s patrol car, these suspects had no reasonable expectation ofprivacy.“); People v. Marland,
355 N.W.2d 378,384 (Mich. Ct. App. 1984) (suspects had no reasonable right to expect privacy in
the back seat of a police car). Then, in July 1984, the United States Supreme Court held that a prison
inmate has no reasonable expectation of privacy in his prison cell entitling him to Fourth
Amendment protection. See Hudson V.Palmer, 468 U.S. 5 17,526 (1984) (“[Slociety 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 a prison cell.“).
Subsequent to Palmer, both state and federal courts have consistently held that a suspect
seated in a police car does not have an expectation of privacy “that society is willing to recognize
as reasonable.” United States v. McKinnon, 985 F.2d 525,527 (11 th Cir. 1993). In McKinnon, the
defendant argued that “the front seat of a police car is equivalent to the officer’s office, but the back
seat is the office of the arrestee.” Id. The government countered that “the back seat of a police car
is equivalent to a jail.” Id. The court found that, whether pre-arrest or post-arrest, a person does “not
have a reasonable or justifiable expectation of privacy for conversations he held while seated in the
back seat area of a police car.” Id. at 528. In United States v. Clark, 22 F.3d 799 (8th Cir. 1994),
another federal court, likewise holding that a suspect has no reasonable expectation ofprivacy while
seated in a police car, provided the following rationale:
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
offtce, and is frequently used as a temporary jail for housing and
transporting arrestees 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. In
other words, allowing police to record statements made by
individuals seated inside a patrol car does not intrude upon privacy
and freedom to such an extent that it could be regarded as
inconsistent with the aims of a free and open society.
Clark. 22 F.3d at 801-02.
State court decisions subsequent to Palmer reach the same conclusion. See, e.g., State Y.
Hussey, 469 So. 2d 346, 351 (La. Ct. App. 1985); In re K.F. v. State, 797 P.2d 1006 (Okla. Crim.
The Honorable Michael A. Sheppard - Page 4 (JC-0208)
App. 1990). In State Y. Smith, 641 So. 2d 849 (Fla. 1994), the defendant, Smith, was a passenger
in a vehicle that was pulled over by an officer for swerving erratically. The driver consented to the
officer’s request to search the car, and “for safety purposes, the officer requested the driver and
Smith to sit in the back seat ofthe police car during the search ofthe car.” Smith, 641 So. 2d at 850.
The officer found cocaine in the glove compartment and arrested Smith and the driver. During the
search, the officer secretly taped a conversation between Smith and the driver that “included a
discussion concerning whether the officer had found the package in the car.” Id. Smith moved to
suppress the tape recording on the basis of a Florida statute with language virtually identical to that
of section 16.02. See id. at 850-51 n.1. The court held that Smith had “no reasonable expectation
of privacy [while seated] in a police car.” Id. at 852. The court concluded that the reasonableness
of the expectation does not depend upon the status of the person engaging in the conversation. See
id. at 852.
In our opinion, these cases are persuasive, and they inextricably point to the conclusion that
a statement made by a person seated in a police car does not occur under circumstances justifying
the expectation of privacy. Consequently, such a statement is not an “oral communication” as
defined in article 18.20 of the Code of Criminal Procedure. As a result, a police offtcer who secretly
records or broadcasts the conversation of an individual seated in a police vehicle does not violate
section 16.02 of the Penal Code.
The Honorable Michael A. Sheppard - Page 5 (Jc-0208)
SUMMARY
A police officer who secretly records or broadcasts the
conversation of a person seated in a police vehicle does not violate
section 16.02 of the Penal Code.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General - Opinion Committee