This matter comes before the Court by way of Defendant’s request to suppress the recordings of more than two hundred (200) telephone calls allegedly made by Defendant while he was incarcerated in the Sullivan County Jail between February 2017 and August 2017 as a result of a parole violation hold. It is important to note that this Court previously granted the Defendant’s request for an audibility hearing pertaining to these same recorded telephone calls. This Court deemed these recordings as sufficiently audible for the sole purpose of potential admissibility at trial in its Decision and Order dated May 4, 2018.The Defendant, through his counsel, claims that he was not provided with any notice that telephone calls from the Jail are recorded or that these telephone calls would be referred to the District Attorney’s Office. No eavesdropping warrant was provided to the Defendant with regard to these telephone calls. The Defendant contends that the recording of these telephone calls violates his right to privacy, as well as his Sixth (6th) Amendment right to counsel, and that Sullivan County Jail’s policies with regard to the recording of telephone calls are illegal and violate the Defendant’s rights.The People seek to use these recorded telephone calls at Defendant’s trial in the instant matter because it is alleged that Defendant was directing the operation of his heroin trafficking business while incarcerated during telephone calls to his son, the co-defendant Shyquan Tait, thus establishing the Defendant’s role in a conspiracy to distribute heroin. The People argue that Defendant was provided sufficient notice that the telephone calls made by Defendant while he was incarcerated at the Sullivan County Jail were subject to monitoring and recording, both at the commencement of each phone call as well as in the Inmate Rule Book provided to every inmate at the Sullivan County Jail upon their incarceration there. As such, the People reason that Defendant cannot establish a reasonable expectation of privacy because he impliedly consented to the recordings by using the Sullivan County Jail telephone, and the recording of such telephone calls did not violate Defendant’s rights under the Fourth (4th), Fifth (5th), or Sixth (6th) Amendments to the United States Constitution.Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, 18 USC §§2510-22 (hereinafter “Title III”) generally prohibits the intentional interception of telephone calls without judicial authorization, and recordings made in violation of Title III may not be used as evidence in any trial. See, 18 USC §§2510-22. Title III applies to prison monitoring of telephone calls. U.S. v. Amen, 831 F2d 373 (2d Cir. 1987). An exception to Title III is where one of the parties to the recorded telephone call has either expressly or impliedly consented to the interception. 18 USC §2511(2)(c).The legislative history of Title III shows that the consent requirement was meant to be construed broadly. See, Amen, supra. “In the prison setting, when the institution has advised inmates that their telephone calls will be monitored…the inmates’ use of those telephones constitutes implied consent to the monitoring within the meaning of Title III.” U.S. v. Willoughby, 860 F2d 15 (2d Cir. 1988). Consent may be implied from the surrounding circumstances indicating that the inmate knowingly agreed to the surveillance by using of the jail telephones after being given sufficient notice that the telephone calls are subject to monitoring and recording. Amen, supra. Notice sufficient to infer implied consent by prisoners who used the jail telephones may consist of a combination of notification procedures. U.S. v. Laster, 2007 WL 2872678 (SDNY 2007)[holding that an inmate is provided of sufficient notice of a prison's recording policy when said inmate is given notice at the inmate orientation upon his incarceration and when the recording policy appears in the inmate handbook provided to each inmate, and use of the prison telephone after receiving this notice constitutes implied consent]. See also, Amen, supra; Willoughby, supra; and U.S. v. Friedman, 300 F3d 111 (2d Cir. 2002).In the instant matter, it is evident that the Defendant received notice that any telephone calls he made while an inmate at the Sullivan County Jail were subject to monitoring and recording. First, the recording policy is printed in the Inmate Rule Book that is given to inmates when they are processed and received at the Jail. Second, and most relevant here, there is a recording played at the beginning of every telephone call made from the Jail telephone that specifically informs the inmate and the person being called that the telephone call is subject to monitoring and recording. This Court can personally attest to this fact, having heard that recording at the beginning of each telephone call reviewed for the audibility hearing. Further, Defendant mentioned in several of the telephone calls in sum and substance that the telephone calls were monitored and recorded. Defendant cannot now claim that he was unaware of the Sullivan County Jail’s telephone call recording policy.Lastly, Defendant’s claims that the recording of his telephone calls from the Sullivan County Jail violates his the Fourth (4th), Fifth (5th), or Sixth (6th) Amendments to the United States Constitution are without merit. The Fourth (4th) Amendment is not violated where one (1) party consents to the taping of a telephone call. Laster, supra. As Defendant impliedly consented to the recording of his telephone calls by using the Jail telephone after receiving notice of the recording policy, his Fourth (4th) Amendment rights were not violated. Further, it has previously been held that inmates have no reasonable expectation of privacy in their telephone calls to nonattorneys on prison or jail telephones. Amen, supra; Willoughby, supra; Laster, supra; Friedman, supra. There is no Fifth (5th) Amendment Miranda violation in this matter, as Defendant was not being subjected to interrogation by law enforcement at any time during these telephone calls, there is no indication that any of the individuals to which the Defendant was speaking were working on behalf of law enforcement, and Defendant had voluntarily placed these telephone calls and was free to end these telephone calls at any time. See, Laster, supra. Defendant’s Sixth (6th) Amendment right to counsel did not attach to these telephone calls, as the Jail was not serving as an agent of the State when it recorded the telephone calls and did not provoke, coerce, elicit, or otherwise solicit these telephone conversations. People v. Johnson, 27 NY3d 199 (Ct App 2016). Defendant voluntarily took part in these telephone calls, knowing they were subject to monitoring and recording. In this case, the Jail is merely a passive recipient of statements freely made by the Defendant. See, Id; Laster, supra; People v. Vining, 28 NY3d 686 (Ct App 2017).Based upon the foregoing, it is herebyORDERED, that Defendant’s request to suppress the recorded telephone calls made by Defendant while incarcerated at Sullivan County Jail is denied in its entirety.This constitutes the Decision and Order of this Court.Dated: May 22, 2018Monticello, New York
