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WA: Jail Phone Conversations Not Private, May Be Used By Prosecutors

On July 25, 2016, the Washington State Court of Appeals,  Division One, held that neither a prisoner or the person on the other end of the phone have an expectation of privacy in a jail phone call and that conversation can be used as evidence in a prosecution against the non-prisoner.

Zakaria Dare was convicted of robbery. Before trial he was housed in the King County Jail in Seattle with his codefendant, Mohamed Abdi Ali. Dere posted bond and was released. While free, Dere received several phone calls from Ali, who was still in jail. Their conversations were recorded by the jail's telephone system. According to court documents, the recordings "provided evidence of Dare's complicity in the robbery and were used by the State at trial."

Dere, who had moved to suppress the recordings as a violation of his privacy rights, appealed his conviction after the trial court denied that motion and Dere was convicted at a trial which included the jail phone recordings as evidence.

The Court of Appeals had no problem concluding that "Dere's conversations with Ali were not private communications." The court pointed to two factors that established that neither Dere nor Ali had a real expectation of privacy in their phone conversations.

Each time Dere received a phone call from Ali, the jail phone system played a recording that stated, "This is a free call from the King County Correctional Facility. This call is from a correctional facility and is subject to monitoring and recording." The court noted that Dere then had an option to press 1 to accept the call, or to press 2 to reject it.

Second, there were signs posted near the jail phones that also warned that use of the phones constituted consent to monitoring and recording. Dere was in that jail and knew that calls from jail are recorded, the court said, defeating Dare's claim that he did not know the calls were recorded.

"The practice of automatically taping and randomly monitoring telephone calls of inmates in the interest of institutional security is not an unreasonable invasion of the privacy rights of pretrial detainees," the court held, rejecting Dare's Fourth Amendment challenge. See State of Washington v. Ali and Dere, No. 72713-3-I (C.A. WA), July 25, 2016.

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Related legal case

State of Washington v. Ali and Dere