As I’ve explained in earlier posts, the 4th Amendment protects us from “unreasonable” searches and seizures.
And as I’ve noted, under the U.S. Supreme Court’s decision in Katz v. U.S., 389 U.S. 347 (1967), a “search” violates a reasonable expectation of privacy in a place or thing. Under Katz, you have a 4th Amendment reasonable expectation of privacy in a place/thing if (i) you subjectively believe it’s private and (ii) society accepts your belief as objectively reasonable.
This post is about an Ohio case in which the defendant made what I’d consider a . . . pretty expansive argument as to the existence of a reasonable expectation of privacy. We’ll start with how the case arose:
On October 22, 2008, Medina County Sherriff's Deputy Paul Schismenos stopped a vehicle after witnessing a marked lane violation. When Deputy Schismenos approached the driver, later identified as [Raymond] Ingram, he smelled burnt marijuana. Deputy Schismenos left Ingram's passenger in the vehicle, but asked Ingram to exit. He placed Ingram in the back of the police cruiser. Ingram admitted he had a suspended license, and Deputy Schismenos called for a canine unit.
The canine alerted on Ingram's vehicle, and the officers searched it. The officers discovered crack cocaine in Ingram's trunk. At some point, the officers removed Ingram's passenger from the vehicle and placed her in the back of the police cruiser with Ingram. During their time in the rear seat of the police cruiser, Ingram and his passenger made several incriminating statements. Their statements were recorded on tape by the police cruiser's recording device.
On May 6, 2008, a grand jury indicted Ingram on one count of the possession of crack cocaine, in violation of [Ohio Revised Code § 2925.11(A)(C)(4)(e)], and an attendant forfeiture specification. On December 9, 2008, Ingram filed a motion to suppress, arguing that Deputy Schismenos . . . violated his reasonable expectation of privacy by recording the conversations he had while detained in the backseat of the police cruiser.
State v. Ingram, 2010 WL 299-865 (Ohio Court of Appeals 2010). (Ingram also moved to suppress based on the premise that the officer didn’t have reasonable suspicion to make the traffic stop. State v. Ingram, supra. We’re not concerned with that issue, plus the Court of Appeals found that the record contained “competent, credible evidence” showing that the officer did have reasonable suspicion to make the stop. State v. Ingram, supra.)
Ingram based his motion to suppress the conversations on the premise that what the officer did violated Ohio Revised Code § 2933.52. State v. Ingram, supra. Section 2933.52 is Ohio’s wiretap statute, i.e., the statute that makes the interception of “wire, oral, or electronic communication[s]” unlawful unless it’s done in accordance with the statute’s provisions.
In analyzing Ingram’s argument, the Court of Appeals noted, first, that he did not
challenge the trial court's factual findings in this assignment of error, only the court's legal conclusions. Therefore, this Court will accept the facts set forth in the record and conduct a de novo review. The undisputed facts are that Ingram made several incriminating statements while inside Deputy Schismenos' cruiser. He made these statements to: (1) his passenger, who was in the cruiser with him; and (2) his mother, who he called on his cell phone while inside the cruiser. . . .
State v. Ingram, supra.
Since Ingram was relying on Ohio Revised Code § 2933.52, the Court of Appeals began its analysis of his argument by noting what the statute covers:
While subject to several exceptions, § 2933.52 prohibits a person from intercepting a wire, oral, or electronic communication in the absence of an interception warrant. [Ohio Revised Code § 2933.52(A)-(B).] The phrase `oral communication’ means `an oral communication uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying that expectation.” [Ohio Revised Code § 2933.51(B)]. In other words, an oral communication only qualifies as a protected oral communication under § 2933.52 if the person uttering it had a reasonable expectation of privacy. This rule applies to in-person conversations as well as to telephone calls. State v. Bidinost, 7 Ohio St. 3d 449, 644 N.E.2d 318 (Ohio Supreme Court 1994) (`In Ohio, the terms of the statute defining ‘oral communication’ clearly encompass cordless telephone conversations.).
State v. Ingram, supra. The Court of Appeals then noted that as “to the statements he made to his mother,” Ingram relied on
Bidinost to argue that his statements were protected oral communications. . . . Bidinost, dealt with former [Ohio Revised Code § 2933.51]. Former § 2933.51(B) defined an oral communication only as `any human speech that is used to communicate by one person to another person.’ Post-Bidinost, the General Assembly amended to include a reasonable expectation of privacy element. . . . While Bidinost still stands for the proposition that a telephone call is an oral communication, its assertion that [Ohio Revised Code § 2933.51(B)] does not require a protected statement to have been made with a reasonable expectation of privacy no longer holds true. . . . Ingram's conversations both with his mother and with his passenger were protected oral communications only if he made them with a reasonable expectation of privacy.
State v. Ingram, supra. The Court of Appeals then addressed Ingram’s argument as to why he did, in fact and in law, have a reasonable expectation of privacy in the back of the police cruiser:
Ingram would have this Court hold that a person placed in the backseat of a police cruiser enjoys a reasonable expectation of privacy, which can be dispelled only if the police first inform the person that any statements he or she makes will be recorded. He does not cite any law in support of this proposition. Rather, he attempts to distinguish one of the cases relied upon by the State, State v. Wynter (Mar. 13, 1998), 2d Dist. No. 97CA36. In Wynter, the [Court of Appeals] held that a person does not have a reasonable expectation of privacy after being arrested, Mirandized, and placed in the backseat of a police cruiser. Although Ingram was Mirandized, he argues that Wynter is distinguishable because he was not under arrest when he made incriminating statements. Further, he argues that he expected his conversations to be private.
State v. Ingram, supra. As I noted earlier, a subjective expectation of privacy is a place is the first prong of the Katz test used to determine if someone had a 4th Amendment reasonable expectation of privacy in that place. So Ingram is relying on Katz, as well as Ohio’s wiretapping statute.
The Court of Appeals, not surprisingly, didn’t buy Ingram’s argument:
Ingram's subjective expectation of privacy is not the issue in this case. Rather, the issue is whether an objective expectation of privacy existed. To the extent he claims to have expected his conversations to be private, his argument is irrelevant. Further, his argument that he had an objective expectation of privacy because a formal arrest had not yet occurred lacks merit. E .g., State v. Blackwell, 8th Dist. No. 87278, 2006-Ohio 4890 (quoting U.S. v. Clark, 22 F.3d 799 (U.S. Court of Appeals for the 8th Circuit 1994)).
`A marked police car is owned and operated by the state for the express purpose of ferreting out crime. It is essentially the trooper's office, and is frequently used as a temporary jail for housing and transporting arrestees and suspects. The general public has no reason to frequent the back seat of a patrol car, or to believe that it is a sanctuary for private discussions. A police car is not the kind of public place, like a phone booth (e.g., Katz v. U.S., 389 U.S. 346 (1967)) where a person should be able to reasonably expect that his conversation will not be monitored. In other words, allowing police to record statements made by individuals seated inside a patrol car does not intrude upon privacy and freedom to such an extent that it could be regarded as inconsistent with the aims of a free and open society.’ U.S. v. Clark, supra.
Because Ingram did not have a reasonable expectation of privacy when making statements to his mother and passenger in the backseat of Deputy Schismenos' cruiser, [Ohio Revised Code § 2933.51(B) et seq.]. does not apply. Therefore, the trial court did not err by refusing to suppress Ingram's statements.
State v. Ingram, supra.