When do inmates have a reasonable expectation of privacy

Thus, the Fourth Amendment does not prevent BOP officials from disclosing the contents of those conversations to outside law enforcement officials, even for purposes unrelated to prison security or administration. Although Title III may impose greater constraints than the Fourth Amendment on the interception of wire communications, it furnishes no greater barrier to their disclosure in this instance.

Title III expressly authorizes law enforcement officers to disclose the contents of lawfully obtained communications to "another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.

In addition, Title III permits law enforcement officers to use the contents of lawfully obtained communications "to the extent such use is appropriate to the proper performance of his official duties. From a Fourth Amendment perspective, the presence of outside law enforcement officials during taping is indistinguishable from disclosure thereafter.

Thus, we believe that the Fourth Amendment does not prevent outside law enforcement officials from participating in routine prison monitoring and recording. In our view, Title III presents a more complicated question.

Unlike the Fourth Amendment, the ordinary course of duties exception to Title III requires courts to consider the circumstances under which monitoring occurs. Under certain conditions, the unannounced or sporadic presence of outside law enforcement officials might indicate a course of conduct out of the ordinary. Green , F. As a general matter, however, we do not believe that the presence of outside law enforcement officials -- in the absence of other unusual circumstances -- is sufficient to call into question otherwise routine monitoring.

Nor is it enough in our view, to vitiate implied consent to monitoring, particularly where inmates have notice of the periodic presence of outside law enforcement personnel.

Even when inmates have no notice of the precise conditions under which monitoring occurs, their consent to the practice of monitoring remains valid and sufficient for Title III purposes. Workman , 80 F. We understand that the Criminal Division has voluntarily adopted a policy requiring outside law enforcement officials to obtain some form of legal process authorizing access to the contents of inmate telephone conversations. We do not believe that the policy of the Criminal Division is either constitutionally or statutorily mandated.

As discussed above, neither the Fourth Amendment nor Title III limits or otherwise conditions disclosure to outside law enforcement officials. While the Criminal Division or BOP may voluntarily adopt procedural restrictions as a policy matter, they are not compelled by law to do so. Thus, the Criminal Division is free to modify or repeal its current policy. In this section, we address whether non-BOP law enforcement agencies may "profile" specific groups of inmates for BOP to monitor and record.

It is our understanding that these profiles may enable non-BOP law enforcement agencies to prevent inmates from using their telephone privileges to facilitate criminal activities outside the institution and to gather information concerning the outside criminal activities themselves.

We believe the practice of profiling raises concerns only to the extent it requires or causes BOP to alter its established monitoring procedures.

BOP has authority to monitor and record all inmate telephone conversations for institutional purposes. As discussed above, those conversations, once lawfully obtained, may be used for purposes unrelated to prison security and administration. If profiling merely enables outside law enforcement agencies to identify potentially useful inmate telephone conversations before they are lawfully seized, it is no more problematic than allowing those officers to participate during the seizure or disclosing the tapes to them thereafter.

If profiling requires or causes BOP either to adopt special monitoring procedures or change its monitoring policy for purposes unrelated to prison security or administration, however, it may jeopardize the application of the ordinary course of duties exception.

In Green , the court held that monitoring was not in the ordinary course of duties for purposes of Title III where focused on a particular inmate and recorded on special audio cassettes, rather than reel-to-reel tapes. Such a finding would be fatal in jurisdictions that reject the implied consent theory of monitoring. Even in jurisdictions that accept the implied consent theory, however, the practice of targeting inmates for reasons unrelated to prison security raises troubling issues.

For example, inmates who receive express notice of random monitoring or random screening of monitored calls might argue that their consent does not extend to the unwritten practice of monitoring or review all of their telephone conversations. To the extent inmates have been misled or deceived with respect to prison policy, a court might refuse to find implied consent.

In this section, we discuss the extent to which the Constitution requires prisons to provide inmates with access to telephones. We believe that inmates have a First Amendment right to some minimal level of telephone access, subject to reasonable restrictions related to prison security and administration.

Under certain circumstances, they also may have a Sixth Amendment right to make telephone calls to their attorneys, subject again to reasonable restrictions. The Supreme Court has recognized that "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution,. Diaz later went to a jury trial, and the state sought to introduce excerpts from four of the phone calls recorded while he was in DOC custody.

Diaz objected, arguing that he had an expectation of privacy on the calls since he was a pretrial detainee and had not been convicted of a crime.

The trial court, after hearing from both sides, allowed the telephonic evidence to be introduced. The court found that Diaz had impliedly consented to the recording of his phone conversations because the DOC had given him sufficient notice that his calls would be monitored. When entering the jail system, all prisoners receive handbooks that outline the policy related to recording and monitoring of phone calls.

There are also signs posted next to the phones, and a recorded message precedes every call that says the call is being monitored. The trial court relied on this information in deciding that Diaz consented to allowing his phone calls to be recorded and therefore subject to use by prosecutors at trial.

A jury eventually found Diaz guilty of the charges. Diaz appealed, renewing his argument in the lower court. See also Bell v. No one can rationally doubt that room searches represent an appropriate security measure.

Knights, U. California, U. Penal Code Ann. Annotations Prisons and Regulation of Probation and Parole. Justia Legal Resources. Find a Lawyer. Law Students.