In Jail? Be Careful What You Say on the Phone, It May be Used Against You in Court
—by D.J. Nugent
People v. Johnson, No. 37, 2016 N.Y. LEXIS 752 (N.Y. Apr. 5, 2016).
The Court of Appeals upheld a New York City regulation that permits prisons, such as Rikers Island, to monitor and record inmates’ non-privileged conversations. Furthermore, the Court held that upon request of the District Attorney’s Office, the prison may turn over any recording for use at trial.
Marcellus Johnson (“defendant”) was arrested for robbery and could not make bail, thus being held at Rikers Island (“Rikers”). While at Rikers, defendant made multiple telephone calls to his friends and family. In these calls defendant made incriminating statements and used vulgar language in reference to the victim and other individuals involved in the robbery. Pursuant to New York City Regulation, Title 40 RCNY § 1-10 (“regulation”), the Rikers administration listened to and monitored these calls.
The regulation provided that prisoners may make telephone calls, that telephones shall be installed in the housing areas of prisons, that upon the implementation of appropriate procedures prisoners’ phone calls may be listened to when legally sufficient notice has been given to the prisoners, and that telephone calls to several classes of people, such as attorneys, shall not be monitored or listened to. Rikers implemented appropriate procedures to record prisoners’ phone calls. These procedures stated that three notices would be provided to prisoners to inform them that their phone calls were being recorded and or monitored. One notice, written in English and Spanish, was posted near the telephones the prisoners use, one notice was set forth in the inmate handbook, and one notice was played at the beginning of each call that a prisoner made from Rikers.
Rikers stated that it only records calls on a “needs basis” which means when a situation “prompts” review, such as calls that involve institutional and public safety and security. New York City District Attorneys’ Offices may request a copy of the prisoner’s recorded call, and such requests are decided within three business days by Rikers Deputy Commissioner for Legal Matters, which has no criteria for deciding such requests. The New York City District Attorney’s Office acquired the recordings of the calls that defendant made, and sought to play excerpts of these conversations at trial.
Defendant filed a motion in limine to bar the prosecution’s use of the recordings arguing the disclosure was unauthorized and unwarranted under Rikers’s procedures, and that disclosure to the District Attorney’s Office undermined his Sixth Amendment right to counsel. The trial court denied this motion, and the prosecution was allowed to play excerpts of the recordings for the jury. The jury then convicted defendant of robbery, larceny, and possession of stolen property. On appeal the appellate division found the recordings admissible, although defendant’s right to an attorney had attached. The New York Court of Appeals granted leave to appeal.
Court’s Analysis and Reasoning
The defendant claimed that Rikers’s practice regarding prisoners’ phone calls violated his right to counsel, exceeded the scope of Rikers’s regulatory authority, and was conducted without defendant’s consent. The Court held the claims were either without merit or were unpreserved, and did not warrant reversal or a new trial.
- Sixth Amendment Violation
Defendant’s Sixth Amendment argument was that by recording his phone calls Rikers essentially acted as an agent for the prosecution in eliciting damaging statements from him. The Sixth Amendment prohibits the use of incriminating statements deliberately elicited from a defendant by government agents. The Court emphasized that a violation of a defendant’s Sixth Amendment right to counsel requires the involvement of the state in eliciting that evidence.
The Court stated that there was no evidence that Rikers elicited or encouraged defendant to conduct these telephone conversations, and that defendant was on notice that the phone calls were being recorded, therefore analogizing this situation to an informer who passively receives information from a defendant, which the Court has held does not constitute acting as an agent of the government. Furthermore, defendant argued that his unique situation, specifically his limited access to the outside world, left him without options other than to make statements out of necessity during phone calls that were detrimental to his defense. The Court held that however true this argument may be it does not establish that Rikers acted as an agent of the prosecution in defendant’s case.
- Rikers Acting Beyond the Scope of its Authority Provided in the Regulation
The Court held that regardless of whether the record supports defendant’s argument, he is not entitled to suppression or preclusion of the phone calls on those grounds. The Court stated that suppression of evidence is warranted when the violation of a statute implicates a constitutionally protected right. Furthermore, defendant failed to identify a statutory right violated by Rikers because the regulation does not prohibit Rikers’s recording of prisoners’ conversations with friends and family.
- Lack of Consent
The Court held that defendant’s lack of consent argument was not preserved because he failed to argue to the trial court that his consent could not be broader than the notice of monitoring that was provided to him.
Judge Pigott concurred with the majority’s analysis and holding, but wanted to bring further attention to the District Attorney’s Office’s direct and unregulated access to all of an inmate’s non-privileged telephone conversations. The judge acknowledged that Rikers had a legitimate interest in maintaining the safety and security of its detention center, but compared this to the possibility that District Attorneys’ Offices may abuse the regulation. Specifically, the judge focused on the fact that the prosecution regularly is allowed access to phone recordings from Rikers, and that people who are detained before trial have a better chance of being convicted because of the inequities that a detained defendant faces in preparing his/her case. Faced with these realizations, the judge believed that a defendant’s only choice was not to use prison phones, which was a result that the judge could not sanction.
 Title 40 RCNY § 1-10.