by Chad Marks

In 2012, Emmanuel Diaz found himself in the custody of the New York City Department of Correction (DOC). While housed at the Rikers Island jail complex on multiple counts of burglary and robbery, he made nearly 1,100 phone calls. During some of the calls he made incriminating statements.

Diaz later went to a jury trial, and the state sought to introduce excerpts from four of the phone calls recorded while he was in DOC custody. Diaz objected, arguing that he had an expectation of privacy on the calls since he was a pretrial detainee and had not been convicted of a crime.

The trial court, after hearing from both sides, allowed the telephonic evidence to be introduced. The court found that Diaz had impliedly consented to the recording of his phone conversations because the DOC had given him sufficient notice that his calls would be monitored. When entering the jail system, all prisoners receive handbooks that outline the policy related to recording and monitoring of phone calls. There are also signs posted next to the phones, and a recorded message precedes every call that says the call is being monitored.

The trial court relied on this information in deciding that Diaz consented to allowing his phone calls to be recorded and therefore subject to use by prosecutors at trial. A jury eventually found Diaz guilty of the charges.

Diaz appealed, renewing his argument in the lower court. On February 21, 2019, the Court of Appeals sided with the trial court’s finding that Diaz had no expectation of privacy. While the Fourth Amendment protects the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, that right does not apply to non-attorney phone calls when a prisoner is informed of the jail’s monitoring and recording policy.

According to the Court of Appeals, New York’s highest court, even if Diaz “subjectively believed that his calls were private – a notion that is largely belied by the record – that expectation was not objectively reasonable.” Further, the Court noted that “federal and state courts across the country have long held that detainees provided with prior notice of the government’s monitoring and recording of their phone calls have no reasonable expectation of privacy in the content of the communications.”

While Diaz also tried to argue that “the release of the recordings to the prosecutor’s office without notice was an additional search that violated the Fourth Amendment,” the Court of Appeals disagreed, finding “there were no additional Fourth Amendment protections that would prevent DOC from releasing the recording to the District Attorney’s Office absent a warrant.”

In New York, like most states, prisoners have no expectation of privacy in non-attorney phone calls made from jail, and prosecutors – and juries – can listen to those conversations. See: People v. Diaz, 33 N.Y.3d 92, 122 N.E.3d 61 (NY 2019). 

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