DECISION AND ORDER Defendant Kyle Williams is charged with murder. On December 15 and 20, 2021, this court conducted a Dunaway, Wade and Huntley hearing. On December 23, 2021, the court denied suppression, except as to statements defendant made to his girlfriend — a suspected accessory — and another individual, both of whom defendant called from his cellphone in an interrogation room in a police precinct. Those calls were surreptitiously recorded with the same audio-visual equipment used to record the interrogations that had just concluded. This decision explains why the calls must be suppressed even though — and to some extent because — the interrogations themselves were in every respect lawful. Shortly after his apprehension, defendant was interviewed in a precinct interrogation room, first by the lead detective on the case and then by an Assistant District Attorney. Miranda warnings were properly administered and waived. Audio-visual equipment recorded the interrogations and continued to record during breaks, when defendant was alone in the room or left to use the bathroom, as well as when the interrogations had concluded. Immediately after the interrogations were over, defendant was asked to consent to the search of his cellphone and the taking of a buccal swab for his DNA. He was provided, and then executed, consent-to-search forms with respect to both. After defendant submitted to the DNA swab, a detective returned defendant’s cellphone to him. The detective said something to the effect that he would give defendant “a minute with your girl.” The detective left the interrogation room, closing the door. Defendant was alone in the room. At the hearing, the detective testified that one of the three cameras in the room was visible, although no further testimony explained to what extent that was so. The detective conceded that no one told defendant he was being recorded. This court, in its review of the three-channel video, did not observe any cameras or microphones in those portions of the interrogation room captured on video. Defendant called his girlfriend and the second individual on speakerphone. His conversations with them contained intimacies (“It’s over`. Everything.”; “I love you.”), the password to social media accounts, and incriminatory instructions (“Make sure everything gone.”; “Delete everything.”), from which the court infers that defendant had a subjective expectation of privacy in his phone calls. His use of the speakerphone also supports a conclusion that defendant believed that no one was listening in on his calls. At the same time, from the guarded nature of his communications (“That sh-t we was talking about? That’s a green.”), the court infers that defendant may have had some concerns about how private these calls actually were. Nonetheless, the court cannot conclude that any such concerns demonstrated that defendant had no subjective expectation of privacy in his statements; rather, he may have been concerned that the privacy he was afforded by having been left alone in the room was incomplete. (Indeed, voices from outside the interrogation room are audible on the recording.) Apparently no court of this state has decided whether a defendant’s surreptitiously recorded statements to a non-attorney civilian in a precinct interrogation room are subject to suppression even though the defendant has neither invoked his right to remain silent nor requested an attorney — although courts have suppressed furtively obtained statements in other circumstances (see People v. Jackson, 202 AD2d 689 [2d Dept 1994] [affirming suppression of surreptitiously recorded phone call defendant made in precinct after invoking right to counsel]; People v. Moss, 179 AD2d 271 [4th Dept 1992] [suppressing statement orchestrated and overheard by officer hiding behind hospital curtain], lv denied 80 NY2d 932 [1992]); People v. Byers, 2004 NYLJ LEXIS 1844 [Crim Ct NY Co Apr 23, 2004] [suppressing pre-Miranda statement because officer had invited defendant to use precinct phone and remained where he could overhear him without warning him that his statements could be used against him]; see also People v. Grimaldi, 52 NY2d 611 [1981] [leaving open Fourth Amendment question with respect to phone call from jail overheard by officer whose presence was not apparent to defendant]). Cases from other jurisdictions go both ways on whether statements of a defendant made to non-attorney civilians in a precinct interrogation room should be suppressed (see State v. Williams, No 2012–T–00532013, WL 6081535, *5-6 [Ct App Ohio Nov 18, 2013] [collecting cases and ruling that surreptitiously recorded statements defendant made to his mother in an interview room in a police precinct should have been suppressed]). In his treatise, New York Confessions, John Brunetti seems to anticipate that a court of this state would find a defendant to have a reasonable expectation of privacy in such statements (see John Brunetti, New York Confessions, 2021 Edition, §16.04 [3] [Matthew Bender]). He cites a federal district court case that granted suppression of clandestinely recorded statements a defendant made to himself while he was left alone in an FBI interrogation room. Relying in part on the Williams case referenced above, the federal court reasoned: “If the police truly believe that no reasonable person would have an expectation of privacy in such a room, the recording equipment should not need to be disguised.” Indeed, luring arrestees into “a false sense of security” in a locked room with no law enforcement officers and with no visible working audio-recording device — but with a concealed recording device — suggests that, in such a room, there is a reasonable expectation of privacy. (United States v. Llufrio, 237 F Supp 3d 735, 745 [N D Ill 2017] [citing Williams, 2013 WL 6081535, 38 and United States v. Diaz, No CR 05-0167 WHA, 2006 WL 3086732, *2, *5 n2 [N D Cal Oct 30, 2006] [opining that defendant had a reasonable expectation of privacy in an interview room in a precinct, among other reasons because the officer turned on hidden recording equipment while leaving visible recording equipment in an "off position"]]). The conclusion of the court in Llufrio is consonant with decisions of courts of this state, like People v. Diaz, 33 NY3d 92 (2019), cert denied 140 S Ct 394 (2019), People v. Cisse, 32 NY3d 1198 (2019), cert denied 140 S Ct 83 (2019), and People v. McCaw, 137 AD3d 813, 814 (2d Dept 2016), lv denied 27 NY3d 1071 (2016), which have ruled, in the obverse situation, that the conspicuousness of the fact that a defendant was being recorded defeated any expectation of privacy he may have had. Thus, in Diaz and Cisse, pre-trial detainees in a correctional facility “informed of the monitoring and recording of their calls, have no objectively reasonable constitutional expectation of privacy in the content of those calls” (Diaz, 33 NY3d at 95), and the recording of their nonprivileged calls did not violate eavesdropping statutes or other constitutional safeguards (Cisse, 32 NY3d at 1200). The Diaz Court characterized the notice provided to detainees as “prominent, unavoidable warnings that…calls were subject to electronic monitoring and recording” (id. at 99 [emphasis supplied]; see also People v. Cisse, 149 AD3d 435, 436 [1st Dept 2017] [defendant given "multiple forms of notice" that his calls may be monitored and recorded], aff’d 32 NY3d at 1200). The defendant in McCaw was one of two arrestees seated in the back of a patrol car. Their conversation was recorded by the “clearly visible front dashboard camera” (People v. McCaw, 137 AD3d 813, 814 [2d Dept 2016] [emphasis supplied], lv denied 27 NY3d 1071 [2016]). The Second Department in McCaw agreed with the federal appellate courts that have held that there could be no expectation of privacy in a patrol car, given, as one such court reasoned, “the distinct nature of a squad car, which is a place bristling with electronics in which the practical realities of the situation should be apparent to occupants” (United States v. Webster, 775 F3d 897, 904 [7th Cir 2015] [emphasis supplied], cited in McCaw, 137 AD3d at 815). In contrast, defendant, at the time an arrestee and not a detainee, was placed in a locked room in a police precinct, not a correctional facility, where privacy rights are markedly diminished (see Lanza v. New York, 370 US 139, 143 [1962] ["In prison, official surveillance has traditionally been the order of the day"]). The room in which defendant found himself did not have the “bristling…electronics” of McCaw’s patrol car or the “prominent, unavoidable warnings” of Diaz’s jail that would have alerted him to the non-private nature of calls he made while alone in the room (cf. People v. Doll, 21 NY3d 665, 672 [2013] ["Defendant was…clearly aware that the police officer was listening to the verbal exchange since the investigator was only a few feet away when [defendant and his friend] conversed” in sheriff’s office] [emphasis supplied], cert denied 572 US 1022 [2014]). Further, as the Court of Appeals observed in the seminal Weaver case, our state Constitution specifically protects an individual’s right to privacy in his phone conversations: The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof. (People v. Weaver, 12 NY3d 433, 439 [2009], citing NY Const Art 1, §12). The federal Constitution, as interpreted by the court in Llufrio, supra, may also provide the same protection (see also Katz v. United States, 389 US 347, 353 [1967] [government's listening to and recording a defendant in a public phone booth violated "the privacy upon which he justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment"]). But for purposes of this decision, such a conclusion is unnecessary. Here, because there was neither notice to defendant nor evidence in the record that the recording equipment in the interrogation room was clearly visible and the monitoring of defendant apparent, this court concludes that it was reasonable for defendant to expect privacy in calls he made with the encouragement of the police and their ostensibly affording him privacy by leaving him alone in the interrogation room to make those calls. In fact, as the police and the Assistant District Attorney demonstrated to defendant when they scrupulously observed his constitutional rights by obtaining his knowing and express consent to the interrogations, the search of his cellphone and the swabbing for his DNA, they were dealing fairly with him. Surreptitiously recording his private phone calls was inconsistent with that demonstration of probity, as was the closing of the door to the room to give defendant the appearance of privacy “with your girl.” Thus, defendant was “lured…into a false sense of security” (Diaz, 2006 WL 3086732 at *5 n2) that his calls were private when they were not. For these reasons, the statements defendant made on his cellphone in the precinct interrogation room must be suppressed as fruits of an unreasonable search. The foregoing constitutes the decision of this court. Dated: December 23, 2021
