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Jail Phone Calls Monitored Without Warning Inadmissible In New Mexico

By Matt Clarke

A New Mexico court of appeals has ruled that jail phone conversations monitored and recorded without prior warning to the prisoner were inadmissible in his criminal prosecution.

Geechie Devane Templeton was arrested by Hobbs, New Mexico, police for possession of cocaine found near where he was hiding following a police chase. In the Hobbs City Jail, Templeton made two phone calls to his girlfriend, one from the booking area and one from another area. Templeton objected without success when prosecutors introduced audio recordings of the phone calls in his trial and claimed they tied him to the cocaine. He was convicted and appealed, alleging the taping of the phone calls violated the Abuse of Privacy Act (APA), NMSA 1978, §§ 30-12-1 to -11.

The court of appeals held that the APA “prohibits interference with certain types of electronic communications, including ‘reading, interrupting, taking or copying any message, communication or report intended for another by telegraph or telephone without the consent of a sender or intended recipient thereof.’” State v. Coyazo, 1997 NMCA 29, 936 P.2d 882. However, consent is implied when the person making or receiving the call is warned in advance that the calls may be monitored. The warning might take many forms: a posted sign near the phones, an orientation handbook passed Out to prisoners, lectures or discussions regarding telephone monitoring and forms indicating the monitoring policy signed by the prisoner are adequate warning.

In this case, it was undisputed that prisoner phone calls--except those made from the booking area--begin with a taped verbal warning that they may be monitored. The court of appeals agreed with the state that prisoners had a reduced expectation of privacy. Nonetheless, this was not sufficient to overcome their privacy rights under the APA.
Because the phone call made from the booking area was without any kind of warning that it might be monitored, it was inadmissible in the criminal prosecution. The court of appeals disagreed with the state’s argument that because Templeton was cautious on the phone and possibly used code means that he knew the call was monitored. However, the second phone call was made after Templeton received a taped warning, so it was admissible.
Therefore, it reversed the judgment of conviction and returned the case to the trial court for a new trial without the use of the first phone call as evidence. See: State v. Templeton, 2007 NMCA 108, 165 P.3d 1145 (decided 06-2-07).

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Related legal case

State v. Templeton