First impression: Suspect’s recorded talk in police car admissible

Dave Stafford for www.theindianalawyer.com

What a South Bend man said to another suspect while they were alone in the back of a police cruiser was recorded by an in-car video camera and properly presented to a federal jury, a panel of judges decided in a matter of first impression for the 7th Circuit Court of Appeals.

The panel affirmed Tommy Webster’s drug and firearm convictions for which he was sentenced to 14 years in prison. Webster owned a marijuana grow house and was convicted of possession with intent to deliver cocaine and possession of a firearm as a convicted felon.

Police followed an anonymous tip to Webster’s house in March 2011 and encountered him there. Webster was carrying about $2,300 in cash, and police noticed a strong odor of marijuana. Inside his house, they found 50 marijuana plants and cocaine after executing a warrant.

Webster and another suspect were placed in the back cage of a police cruiser before and during the search for about two-and-a-half hours, according to the record. Most of that time a police corporal was in the car with them, but when he left for about eight minutes, Webster made several statements that connected him to the house.

Because Webster’s defense counsel strategically did not object to the admission of the recording, the panel reviewed only for plain error. For purposes of their analysis, the judges assumed Webster had a subjective expectation of privacy while alone with another suspect in the back of the police car.

“(T)he insurmountable obstacle to his claim is in the objective portion of the test – whether the expectation is one that society accepts is reasonable,” Circuit Judge Ilana Rovner wrote for the unanimous panel. “Although our circuit has not yet addressed this question, six circuits have done so over the last two decades and all have held that there is no objectively reasonable expectation of privacy in a conversation that occurs in a squad car.

“… Given the nature of the vehicle and the visible presence of electronics capable of transmitting any internal conversations, the expectation that a conversation within the vehicle is private is not an expectation that society would recognize to be reasonable. We agree with those circuits, and hold that conversations in a squad car such as the one in this case are not entitled to a reasonable expectation of privacy, and therefore the recording of the conversation is not a violation of the Fourth Amendment.”

Rovner wrote that the holding applied only to squad cars similarly equipped and not, for instance, to a design in which officers were separated from suspects by Plexiglas that allowed them to see, but not hear, conversations.

The panel affirmed the convictions and sentence handed down by Judge Robert L. Miller of the District Court for the Northern District of Indiana, South Bend Division. The 7th Circuit also rejected Webster’s other arguments that the court erred by allowing into evidence lab results on the seized drugs and his argument that the evidence was insufficient to support his conviction.