Law Review: Jailhouse calls are fair game for the law |

Law Review: Jailhouse calls are fair game for the law

Jim Porter

David Windham went shopping with his girlfriend, M.R. He asked her to loan him money. A true test of love. M.R. said no ” an even better test of love.

The couple left the store and got into a car and started fighting. Windham parked next to a cliff and told M.R. to get out of the car. She refused. Smart move on her part.

Windham then forced M.R. to have sex with him in the car, threatening to kill her. Fortunately, a police officer happened on the scene and rescued M.R. who was severely beaten.

Windham was charged with assault, second degree robbery and corporal injury of a cohabitant. Because he had a prior felony he was ineligible for probation.

While in jail pending trial, Windham attempted to call M.R. 83 times on the jail phones, making 12 completed conversations. Slightly obsessive.

Of course, Windham, not being a Fulbright Scholar, implicated himself during the conversations.

The prosecutor planned to use Windham’s recorded conversations as evidence in his criminal trial. Windham filed a motion to suppress the recordings.

Did Windham impliedly consent to the recording and disclosure of his conversations with M.R., making the wiretapping lawful?

As the prosecutor pointed out, there are three separate warnings given to callers using the jail pay telephones, warning that the conversations may be recorded and monitored. First, the jail rules provided to each inmate so specify. Second, a posted sign by the telephones in large print reads: WARNING! Calls may be recorded and monitored!!!” Finally, both parties hear a telephone recording advising that the call is being recorded.

In the face of those warnings, Windham talked his head off and provided all the evidence the prosecutor needed for a conviction.

Apparently ignoring the Felony Stupidity Rule (a favorite among criminals), of which Windham was entirely guilty, he argued that recording the calls was an illegal wiretapping and a violation of his Constitutional rights.

Windham argued that recording his calls violated Title III of the Omnibus Crime Control and Safe Streets Act of 1968. The act prohibits the unauthorized interception of “any wire, oral, or electronic communication … except when the statute specifically provides otherwise.”

Indeed, one of the exceptions to the Omnibus Crime Act is that wiretapping is permissible when one of the parties to the communications has given consent. Of course, the well-decided law is that when a prisoner has meaningful notice that his telephone calls over prison phones are subject to monitoring, he impliedly consents to that monitoring, which is not in violation of the Omnibus Crime Act.

Not to be deterred, Windham also argued that recording his jailhouse confessions was illegal under California’s Privacy Act. The Privacy Act forbids wiretapping (except by law enforcement officers) unless all parties to a communication consent. In a similar fashion, the court deemed Windham’s calls “unprivileged calls of a jail inmate,” to which he impliedly consented to the recording.

The court further ruled that it was proper for prison officials to turn over the recordings to the prosecutor for use as evidence against Windham.

Windham is enjoying his first of three years in state prison. He’s lucky it’s only three.

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