California detainee David Windham appealed a decision holding that recordings of jail-placed phone conversations were lawful and could be used for conviction purposes.

Windham asked his girlfriend for money while shopping. She refused and he followed her to her car and forced his way in. He physically abused her and forced her to have sex with him, then threatened to kill her if she told the police. An officer noticed damage and swelling to her face and arrested Windham.

Awaiting trial and in custody, he called his girlfriend repeatedly and mentioned events leading up to his arrest. When informed that the recordings would be used in his prosecution, he filed a motion to suppress. The court denied the suppression motion and ruled that there was implied consent to record the phone calls based on three separate warnings Windham received prior to placing the call. These warnings included the written jail rules, posted signs, and a recording heard by both parties when the calls were placed.

On appeal, the California Court of Appeals held that the recordings were legal under Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510, and the California Invasion of Privacy Act § 633. Further, the appellate court held the Privacy Act includes an exception for law enforcement practices that were lawful when the Act became effective. See: People v. Windham. __ Cal.Rptr.3d ___ (Cal.App. 1 Dist., 2006), vacating original opinion at 50 Cal.Rptr.3d 768 (Cal.App. 1 Dist., 2006); 2006 WL 3634377.

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