“Plain Hearing” Rule Used to Make Evidence Admissible

“Plain Hearing” Rule Used to Make Prosecutors “may” be able to admit evidence from a legal wiretap that includes conversations of people targeted conspiracy not included in the Admissible

 United States v. Carey, 2016 BL 291176, 9th Cir., No. 14-50222, 9/7/16.

The Seventh Circuit found that evidence collected from an untargeted person under a legal wiretap may be admissible under a “plain hearing” rule. The court found that the plain hearing rule was a logical corollary to the “plain-view” rule that allows police to collect evidence from things in plain sight during a legal search. The court based its decision on dicta from an earlier case where the court suggested that the plain hearing rule “is just the plain view doctrine translated from the visual to the oral dimension.”

The court cautioned, however, that this rule is not without limits. In one such example, the court noted that the police cannot collect incriminating information from people once they realize the audio being captured is unrelated to the wiretap warrant.

http://www.bloomberglaw.com/public/document/United_States_v_Carey_No_1450222_2016_BL_291176_9th_Cir_Sept_07_2.

Parents Have 'Vicarious Consent' to Listen in to Kid's Conversations

As long as parents believe that eavesdropping is in the best interests of their child, they may use electronic devices to listen in on their children's conversations with third parties.

People v. Badalamenti, 2016 BL 106362, N.Y., No. 71, 4/5/16

     The New York Court of Appeals ruled that there is a 'vicarious consent' exception to the one-party consent wire-tapping laws, which ban outsiders from listening to a conversation unless one of the parties gives consent beforehand.

     The court ruled that "[t]here is no basis in legislative history or precedent for concluding that the New York Legislature intended to subject a parent or guardian to criminal penalties for the act of recording his or her minor child's conversation of out a genuine concern for the child's best interests."

     The court followed the reasoning in the case of Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998), which initially recognized the vicarious consent to federal wiretapping laws.

http://www.bloomberglaw.com/public/document/People_v_Badalamenti_No_71_2016_BL_106362_NY_Apr_05_2016_Court_Op

Late Attempt to Seal Wiretap Not Justified by Prosecutor's Workload

Federal law requires that intercepted communications be "immediately" presented for sealing once the warrant expires, and a prosecutor's preoccupation with another case is not a good excuse for noncompliance.

 

Finney v. State, 2016 BL 68689, Ga., No. S15A1739, 3/7/16

     The Georgia Supreme Court ruled that the upcoming oral argument which the prosecutor was worried about was not a surprise development that the state was forced to handle. The court also determined that the prosecutor's preoccupation with the upcoming oral argument did not explain why other lawyers in the office could not have filed the motion, or why the matter was not dealt with until eight days after the oral argument had concluded. See, 18 U.S.C. § 2518 (1) - (6).

http://www.bloomberglaw.com/public/desktop/document/Finney_v_State_No_S15A1739_2016_BL_68689_Ga_Mar_07_2016_Court_Opi?1458316618

Only One Party Needs to Consent to Telephone Taps in Connecticut.

As long as one party to a conversation gives consent, the Connecticut Constitution does not require police to obtain a warrant before recording phone calls.

 

State v. Skok, 2015 BL 289964, Conn., No. SC 19415, 9/15/15

     The Connecticut Supreme Court indicated that all federal courts and an "overwhelming majority" of state courts follow the one-party-consent exception to the warrant requirement. The reasoning of these courts is that a person using a phone to further criminal activity does not have control over who the other person shares the conversation with, or allows to listen in.

     The court here also indicated that the defendant's claim of reasonable expectation of privacy was undermined because she repeatedly reminded the other party to make sure that family members would not overhear the conversations.

http://www2.bloomberglaw.com/public/desktop/document/State_v_Skok_No_SC_19415_2015_BL_289964_Conn_Sept_15_2015_Court_O