CA7: No REP re conversations with co-defs in back of a police van

By John Wesley Hall
Law Offices of John Wesley Hall
Feb 20, 2017

Chicago courts had previously found a distinction between the reasonable expectation of privacy in conversations held in the back of a police squad car and a police van (called a squadrol). The circuit ends this distinction finding it unsupportable. There is no reasonable expectation of privacy in one’s conversations in a police vehicle. United States v. Paxton, 2017 U.S. App. LEXIS 2811 (7th Cir. Feb. 17, 2017):

Our decision in this case turns on whether any expectation of privacy that the defendants may have harbored in their conversations within the police van was an objectively reasonable expectation. As we discuss below, we held in Webster that detainees lack an objectively reasonable expectation of privacy in conversations taking place in the back seat of a squad car, 775 F.3d at 903-04, but our decision held open the question of whether detainees might have a reasonable expectation of privacy in a different type of police vehicle, id. at 904. We address that question now, and answer it in the negative.

In the three-plus decades preceding the district court’s suppression decision in this case, federal and state courts had concluded with apparent unanimity that a person has no objectively reasonable expectation of privacy while seated in a marked patrol car. See United States v. Dunbar, 553 F.3d 48, 57 (1st Cir. 2009); United States v. Turner, 209 F.3d 1198, 1200-01 (10th Cir. 2000); Clark, 22 F.3d at 801-02; McKinnon, 985 F.2d at 527-28; United States v. Fridie, 442 F. App’x 839, 841 (4th Cir. 2011) (per curiam) (non-precedential decision); United States v. Carter, 117 F.3d 1418 (table), 1997 WL 336290 (5th Cir. June 5, 1997) (per curiam) (unpublished); United States v. Sallee, No. 91 CR 20006-19, 1991 WL 352613, at *2 (N.D. Ill. Oct. 24, 1991) (collecting state cases); State v. Torgrimson, 637 N.W.2d 345, 350 (Minn. Ct. App. 2002); State v. Ramirez, 535 N.W.2d 847, 850 (S.D. 1995) (collecting cases); State v. Smith, 641 So.2d 849, 852 (Fla. 1994); People v. Crowson, 660 P.2d 389, 392-93 (Cal. 1983) (plurality), overruled in part on other grounds by People v. Myers, 858 P.2d 301 (Cal. 1993). Those holdings have deemed it immaterial whether the individual has been arrested, temporarily detained, or simply invited to sit in the car while the police conduct an investigation. See, e.g., Turner, 209 F.3d at 1201 (“whether an individual is in custody does not materially affect an expectation of privacy in a police car”) (following McKinnon, 985 F.2d at 528 (“[w]e find no persuasive distinction between pre-arrest and post-arrest situations in this case”) (collecting cases)).

A number of these decisions are, as Chief Judge Castillo pointed out in Williams, fairly cursory in their treatment of the issues. 15 F. Supp. 3d at 828. From the cases that address the subject in any detail, two basic points emerge. First, the patrol car is an official, crime-fighting vehicle that serves both as a police officer’s workplace and also as a mobile jail. Clark, 22 F.3d at 801-02. Consequently, an individual seated in that car would have no reason to expect privacy within the car. Id. Second, the dashboard area of a patrol car, which is visible to anyone sitting in the car, “bristl[es]” with electronic equipment (including two-way radios, for example) that places one on notice of the possibility that his oral statements may be intercepted. Turner, 209 F.3d at 1201.

Prior to Williams, only a few cases had expressly dealt with police vehicles other than squad cars; and although they too had found no reasonable expectation of privacy for conversations occurring within such vehicles, they did not expressly address how the unique compartmentalization of the vehicle’s interior might affect privacy expectations. See United States v. Mahon, No. CR 09-712-PHX-DGC, 2010 WL 3954506, at *4 (D. Az. Sep. 29, 2010) (“Defendants clearly had no legal expectation of privacy while handcuffed in the police van.”) (citation omitted), j. aff’d, 620 F. App’x 571 (per curiam) (nonprecedential decision) & 804 F.3d 946 (9th Cir. 2015), cert. denied, 136 S. Ct. 2510 (2016); United States v. Reese, No. 1:09 CR 00145, 2010 WL 2606280, at *5 (N.D. Ohio June 25, 2010) (relying on squad car cases to hold that “none of the defendants could reasonably expect that their conversations were private merely because they were alone in the van, handcuffed and awaiting transport to the Cleveland Police Department for questioning”); United States v. Ingram, No. IP 04-201-CR-1 H/F, et seq., 2005 WL 775930, at *1 n.1 (S.D. Ind. Mar. 25, 2005) (Hamilton Click for Enhanced Coverage Linking Searches, J.) (noting court’s prior oral ruling that defendants lacked reasonable expectation of privacy within a police van used to transport them to jail), appeal dismissed sub. nom. United States v. Douglas, 182 F. App’x 558 (7th Cir. 2006) (per curiam) (unpublished).

In his Williams decision, Chief Judge Castillo acknowledged the general line of authority as to squad cars, but found the layout of a police squadrol to be materially distinct from that of a patrol car vis-à-vis the expectation of privacy. In contrast to a typical patrol car, a squadrol (which is used both as an ambulance and as a vehicle to transport detainees) has a separate cab for the driver and his passenger, resulting in a physical division of the driver’s compartment from the fully enclosed rear section of the vehicle. 15 F. Supp. 3d at 829. Within their own compartment, the detainees are not within earshot of officers sitting in the cab. Id. Moreover, the rear compartment does not “bristle” with electronics that are visible to detainees. Id. Detainees in the rear compartment of a squadrol thus have practical reasons to expect privacy that detainees in the back seat of a patrol car lack. Id. And that is true even if the squadrol is regarded as a mobile jail. The judge could not imagine that the types of safety concerns that outweigh individual privacy interests in the jail setting (controlling narcotics and other contraband, and preventing escape) are present to the same degree in a squadrol. Id. at 829-30. Indeed, if safety concerns were the motivation for the government’s decision to intercept detainee conversations, then its agents would have activated the live-monitoring feature of their equipment. But they had not taken advantage of that feature, which led Judge Castillo to conclude that the government’s real purpose in intercepting the detainee’s conversations was to capture their incriminating statements. Id. at 830. Weighing the totality of the circumstances, he concluded that the detainees had a reasonable expectation of privacy in the rear compartment of the squadrol and that the government’s wish to capture any incriminating remarks was not justified. Id.

Note: I admire defense counsel for seeking this distinction in representing their clients. The distinction, however, was hard to easily apply and justify, and it was doomed in the long run.