UNITED STATES OF AMERICA v. JUSTIN DANIEL DELIBRO 5:08-cr-28-Oc-10GRJ United States District Court, M.D. Florida Filed August 11, 2008 Jones, Gary R., United States Magistrate Judge REPORT AND RECOMMENDATION1 *1 Pending before the Court is Defendant’s Motion to Suppress Evidence (Doc. 13) to which the Government has filed a Memorandum in Opposition. (Doc. 18.) On August 5, 2008, the Court conducted an evidentiary hearing. For the reasons that follow, it is respectfully RECOMMENDED that Defendant’s Motion to Suppress Evidence (Doc. 13) be DENIED. I. INTRODUCTION This case involves a one count indictment against Defendant charging the Defendant with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Defendant seeks to suppress inculpatory statements he made during a conversation with his mother in an interview room actively monitored with video and audio surveillance at the Eustis Police Department. Defendant had been transported to the station following his arrest and was awaiting transport to the Lake County jail. Defendant argues that the electronic recording capturing his conversation with his mother should be suppressed because it invaded his legitimate expectation of privacy in violation of the protections afforded to him by the Fourth Amendment. II. EVIDENCE AND TESTIMONY During the evidentiary hearing, Defendant called Gina Wilson, Defendant’s mother, as his only witness. Defendant also presented the videotaped surveillance of the Defendant’s conversation with his mother in the interview room at the police station.[2] Sergeant Gary Winheim, an officer for the Eustis Police Department, testified as a witness for the Government. A. Testimony of Gina Wilson Mrs. Wilson first learned of Defendant’s arrest via a telephone call she received from Defendant’s girlfriend. Mrs. Wilson went to the scene of the arrest and, upon arriving, asked Sergeant Gary Winheim whether she could talk to her son “privately.” Sergeant Winheim told Mrs. Wilson that she could not speak with her son at the scene but that she could talk to the Defendant at the police station before he was taken to jail. Mrs. Wilson then went to the Eustis Police station and was taken by Sergeant Winheim to the interview room where Defendant was being held following his arrest while he awaited transport to jail. Mrs. Wilson entered the interview room and talked to her son for about forty-five minutes. Mrs. Wilson testified that she did not believe her conversation with Defendant was being monitored. She did testify that her son seemed concerned that someone might be listening to the conversation. B. Videotape of the Conversation in the Interview Room Defendant presented the videotape of the conversation between him and his mother that he seeks to suppress. The videotape depicts an overhead view of Defendant the entire time he was detained in the interview room—a relatively small room with two chairs and a table—including audio of a lengthy conversation between the Defendant and his mother. The videotape is forty-nine minutes in length. The discussion between the Defendant and his mother is not remarkable other than the fact that the Defendant does make inculpatory statements to his mother regarding the firearm, which was discovered at the scene, and several comments regarding drugs. The majority of the discussion concerns the Defendant’s bail and how the Defendant can contact a bail bondsman. *2 The video begins with the Defendant entering the interview room and not long thereafter Sergeant Winheim opens the door and allows Mrs. Wilson to enter. Sergeant Winheim leaves the room and Mrs. Wilson sits down and begins to talk with her son. A significant portion of the conversation focused on coordinating Defendant’s bond[3] and the disposition of the personal property found on Defendant at the time of his arrest. Mrs. Wilson and Defendant also discussed the circumstances surrounding Defendant’s arrest. In response to his mother’s questioning, Defendant made a number of statements regarding both the drugs and the gun found at the scene of the arrest. Some of his answers were less responsive than others. Notably, during the conversation Mrs. Wilson asked Defendant who owned the gun, and Defendant replied, “I am not going to say it in here.” Mrs. Wilson then told her son to “whisper it in [her] ear.” Later, Defendant told his mother to “[s]top saying people’s names in here.” During the conversation, the Defendant also acknowledged, “We are in an interrogation room. [Law enforcement] can hear—they got wires in it.” When Defendant did not immediately answer one of Mrs. Wilson’s questions, the video depicts Mrs. Wilson looking up, surveying the room, and then saying to her son, “You’re right... They’re probably listening.” During the course of the entire video, there is evidence to suggest that the room did not afford Defendant and his mother much privacy. Sounds of doors opening and closing and voices outside of the room can be readily heard in the background. In addition, during the conversation Sgt. Winheim entered the room unannounced on three different occasions. The first time Sgt. Winheim entered the room he confirmed that Defendant had been given his Miranda warnings at the scene of the arrest and responded to several questions posed by Mrs. Wilson. In particular, Mrs. Wilson asked Sgt. Winheim whether she could have the cell phone found on Defendant claiming it belonged to her. She also inquired about the charges being brought against Defendant and the corresponding bail each would require. Mrs. Wilson then asked Defendant to identify the owner of the gun in front of Sgt. Winheim, at which point Sgt. Winheim appropriately cautioned her not to “put [Defendant] in that position.” During Sgt. Winheim’s second visit, he briefly poked his head into the room to inform Mrs. Wilson and Defendant that he was still working on Defendant’s paperwork, and asked whether Mrs. Wilson needed anything. The third time Sgt. Winheim entered the room, he asked whether he had left a paper behind and when he did not find what he was looking for, he promptly exited. Mrs. Wilson eventually told her son that she had to leave, kissed him good-bye and then knocked on the door to leave. After Sgt. Winheim opened the door Mrs. Wilson left and the videotape ended. C. Testimony of Sergeant Gary Winheim The Government presented the testimony of Sergeant Gary Winheim. According to Sgt. Winheim, Defendant was arrested on the night of February 8, 2008 by the Eustis Police Department. Law enforcement saw Defendant in an area that was reportedly frequented by vandals and approached him. When Defendant fled, law enforcement pursued him and, upon apprehending him, discovered a stolen .45 caliber Glock pistol and illegal drugs. Defendant was placed under arrest. *3 Sgt. Winheim was involved in Defendant’s arrest and was the officer approached by Defendant’s mother at the scene. The officer’s recollection of his conversation with Mrs. Wilson is somewhat different from Mrs. Wilson’s. While Sgt. Winheim does recall speaking with Mrs. Wilson and confirms that she did request to talk to her son, he does not recall Mrs. Wilson ever using the word “privately” or any other word indicating that she wanted to speak with Defendant confidentially. In fact, he testified that even if she had, such communication would not have been permitted. At the scene of the arrest, Sgt. Winheim informed Mrs. Wilson that, as Defendant was already in the back of the police car and in custody, she could not speak to him. However, he told her that because he knew her, if she were to come to the police station, he would see what he could do. He subsequently made an exception to the general policy against permitting visitors for a defendant awaiting transport to jail. Sgt. Winheim allowed Mrs. Wilson to speak with her son in an interview room while he completed Defendant’s paperwork. The room was not soundproof and the door had a window. He characterized the hallway outside the room as “busy.” According to Sgt. Winheim, Defendant was held in the interview room because “it was a convenient place to put him.” Sgt. Winheim testified that he never made a representation of any kind to Defendant or Mrs. Wilson that the room was intended to afford them privacy. III. ANALYSIS The sole issue before the Court is whether the video and audio surveillance of Defendant’s conversation with his mother in the interview room at the police station intruded upon Defendant’s reasonable expectation of privacy in violation of his Fourth Amendment rights. The protection of the Fourth Amendment can only be invoked where a Defendant has a “reasonable expectation of privacy.”[4] Determining whether the surveillance of the interview room invaded Defendant’s “reasonable expectation of privacy” involves two discrete inquiries: (1) whether Defendant actually demonstrated a subjective belief that his conversation with his mother was “private”; and (2) whether that subjective expectation of privacy was “ ‘justifiable’ under the circumstances.”[5] Where, as here, conversations take place in an area under the direct control of law enforcement it is objectively unreasonable to expect privacy except in very limited situations.[6] While the Eleventh Circuit has not squarely dealt with a case involving a conversation in a police interview room, the Eleventh Circuit has held that there is no expectation of privacy where a co-defendant made incriminating statements to a co-defendant pre-arrest while the subjects were voluntarily sitting in the back seat of a police car.[7] One of the reasons that there is no reasonable expectation of privacy in the back seat of a police vehicle is because a police vehicle is very much like a police officer’s office, a place where generally an individual should not expect that his conversations will be private. *4 In addition to the strong authority that there is no expectation of privacy in the back seat of a police vehicle, a number of courts in the state system[8]have recognized that there is no expectation of privacy in conversations at a police station or in a police interview room.[9] While the Court recognizes that these state cases are not binding, nonetheless, “[w]hen there is a paucity of federal law on a subject, state decisions interpreting the Federal Constitution, ... are persuasive.”[10] Consistent with this view, the Court concludes that generally there is no objective expectation of privacy in an interview room at a police station. To hold otherwise would ignore the obvious - that is - an individual who has been arrested and is in police custody and taken to the police station for questioning should not have any expectation that his conversations with anyone (other than his lawyer) are private. While there may not be an objectively reasonable expectation of privacy in a police interview room, there may be limited circumstances in which a defendant would have a subjectively reasonable expectation of privacy in a police interview room where law enforcement takes some action to deceive the defendant or affirmatively represents that conversations are not being monitored. That is, however, not the case here. To the contrary, the videotape depicts on multiple occasions that Defendant demonstrated an awareness that the room might not be secure. While the Defendant did make a number of inculpatory statements regarding both the drugs and the gun found at the scene of the arrest, he was extremely cautious in response to his mother’s questioning. Moreover, as evidenced by the Defendant’s comments to his mother during the conversation, he demonstrated that he reasonably was concerned the conversation was being monitored. The Defendant’s awareness that his conversation was not private is demonstrated when Mrs. Wilson asked Defendant who owned the gun, and Defendant replied, “I am not going to say it in here.” Later, Defendant instructed his mother to “[s]top saying people’s names in here.” Lastly, and most telling, Defendant acknowledged, “We are in an interrogation room. [Law enforcement] can hear—they got wires in it.” Accordingly, the evidence clearly demonstrates that the Defendant - as opposed to his mother - did not have any expectation of privacy and instead was very concerned that what he and his mother were discussing would be heard by law enforcement. While the focus of the Court’s inquiry is whether the Defendant - and not his mother - subjectively believed his conversation was private, it is, nonetheless, questionable whether Mrs. Wilson truly believed that the conversation was not being monitored. For example, when the Defendant did not immediately answer one of Mrs. Wilson’s questions, Mrs. Wilson looked up, surveyed the room, and stated, “You’re right... They’re probably listening.” The view that Mrs. Wilson thought the conversation might be monitored is highlighted in the discussion between the Defendant and his mother concerning the identity of the owner of the gun. When Defendant told his mother that he did not want to identify the owner of the gun, Mrs. Wilson instructed Defendant to “whisper it in [her] ear” thus evidencing that Mrs. Wilson thought someone was listening to their discussion. *5 Accordingly, because there was no evidence presented that law enforcement said or did anything to lead the Defendant to believe that the discussion with his mother was not being monitored the Court concludes that the Defendant was not lulled or lured into assuming that his discussion with his mother was private. Rather, it is evident throughout the Defendant’s conversation with his mother that the Defendant - as well as his mother - were legitimately and justifiable concerned that their discussion was being monitored. As such, the Court concludes that based upon the evidence presented the Defendant did not establish that he had a subjectively reasonable expectation of privacy during the conversation. Lastly, the Court finds that the case law relied upon by Defendant is not helpful. Defendant’s entire legal argument relies upon two cases - United States v. Diaz[11] and State v. Calhoun[12] - each of which is inapposite and neither of which changes the result. Unlike this case, both Diaz and Calhoun, involved a situation where law enforcement affirmatively did something to “lull” the defendant into thinking the conversation was not being monitored. In Diaz the police officer lured the defendant into a false sense of security by placing an audio-recording device in the off position in the interview room in front of the defendant and his mother while secretly turning on anther concealed video-recording device. In Calhoun immediately after the defendant was read his Mirandarights he told law enforcement that he wanted to speak with his brother privately before talking to the officers. Moreover, neither Diaz nor Calhoun have any precedential value because the discussions in those cases regarding reasonable expectation of privacy were pure dicta and not relevant to the decision in either case. In Diaz while the Court observed in a footnote that the Defendant may have had a reasonable expectation of privacy because he was lured by law enforcement into believing his conversation was not being monitored, the court expressly declined to reach the issue as part of its decision.[13] The discussion in Calhoun is even more inapposite in view of the fact that the court there did not base its decision upon the Fourth Amendment but rather based its decision upon the right of privacy expressly recognized in the Florida Constitution.[14] Thus, neither Diaz nor Calhoun support Defendant’s argument that he had a reasonable expectation of privacy under the Fourth Amendment in his discussions with his mother in the interview room. In sum, there is simply no evidence that law enforcement took any extraordinary affirmative steps or even said anything to the Defendant which could be interpreted as “lulling” the Defendant into believing he was speaking privately with his mother. Further, Defendant’s conduct and statements depicted in the videotape make it clear that he understood that the room was not secure and that his conversation might be overheard by law enforcement. Accordingly, the Court concludes that the Defendant did not have any reasonable expectation of privacy in his conversation with his mother and therefore his Fourth Amendment rights were not violated. IV. RECOMMENDATION *6 In view of the foregoing, it is respectfully RECOMMENDED that Defendant’s Motion to Suppress Evidence (Doc. 13) be DENIED. Footnotes [1] Specific written objections may be filed in accordance with 28 U.S.C. § 636, and Rule 6.02, Local Rules, M.D. Fla., within ten (10) days after service of this report and recommendation. Failure to file timely objections shall bar the party from a de novodetermination by a district judge and from attacking factual findings on appeal. [2] The videotape includes both the audio and video components of the surveillance. [3] Specifically, Mrs. Wilson and her son discussed the charges and corresponding amount of bond. Mrs. Wilson informed Defendant that, while she would not pay his bond, he should contact her boyfriend, a bail bondsman. [4] United States v. Jacobsen, 466 U.S. 109, 113 (1984). The Fourth Amendment is not implicated in the absence of a reasonable expectation of privacy. Id. [5] Smith v. Maryland, 442 U.S. 735, 740 (1979). An expectation of privacy is considered to be “justifiable” where it is “one that society is prepared to recognize as ‘reasonable.’ ” Katz v. United States, 389 U.S. 347, 361 (1967). A “reasonable expectation of privacy” only exists where both inquiries are answered in the affirmative. Id.; see also United States v. McKinnon, 985 F.2d 525, 527 (11th Cir. 1993). [6] Belmer v. Commonwealth, 553 S.E.2d 123, 128 (Va. Ct. App 2001) (“Generally, the federal courts continue to find a suspect has no reasonable expectation of privacy in areas controlled by the police.” (citing United States v. Clark, 22 F.3d 799, 801-02 (8th Cir. 1994))). An individual has no expectation of privacy in a police station absent affirmative police conduct fostering the illusion of privacy. State v. Calhoun, 479 So. 2d 241 (Fla. 4th Dist. Ct. App. 1985); see also Boyer v. State, 736 So. 2d 64 (Fla. 4th Dist. Ct. App. 1999) (finding there was no reasonable expectation of privacy where police did nothing improper to create a false sense of security in the defendant). [7] United States v. McKinnon, 985 F.2d 525 (11th Cir. 1993). [8] Bell v. State, 802 So. 2d 485 (Fla. 3d Dist Ct. App. 2001); Bedoya v. State, 779 So. 2d 574 (Fla. 5th Dist Ct. App. 2001); Boyer v. State, 736 So. 2d 64 (Fla. 4th Dist. Ct. App. 1999); Johnson v. State, 730 So. 2d 368 (Fla. 5th Dist. Ct. App. 1999). [9] Although the Court recognizes that the Fourth Amendment “protects people and not places, ... reference to the place where the right is being asserted is essential to the application of the objective standard for determining the reasonableness of the expectation of privacy.” Katz v. United States, 389 U.S. 347, 361 (1967); see also Lanza, 370 U.S. at 143. [10] Thatcher v. Romanowski, No. Civ.03-74585-DT, 2005 WL 2033534, at *7 n.2 (E.D. Mich. Aug. 19, 2005). [11] No. CR-05-0167-WHA, 2006 WL 3086732, at *6 n.2 (N.D. Cal. Oct. 30, 2006). [12] 479 So. 2d 241 (Fla. 4th Dist. Ct. App. 1985). [13] Diaz at *5 n.2. [14] Calhoun, 479 So.2d at 244 (“Obviously, the defendant did not have a reasonable expectation of privacy in the interview room itself under the search provisions of either Constitution. Nevertheless, the defendant did have a reasonable expectation that his conversation ... was secure and private, guaranteed to him by the Florida Constitution [Article I, section 12].”)