Appellate Law

CA1: SDO says that monitored attorney-client calls can be admitted if only Fourth Amendment challenge made

By S. COTUS

US v. Novak, No. 07-1826 (6/30/08).  Retired Justice O'Connor holds that where an incarcerated defendant consents to monitoring (even though they were in violation of state and federal regulations), a Fourth Amendment challenge will fail.  Now, if he had made a sixth amendment argument it would have succeeded. 

State regulations provide that lawyers? phone numbers are exempted from monitoring, and inmates can request that new numbers be added.  It gets even stranger, because he was represented by the FPD, but he wanted to see if he could get some of his earlier state convictions vacated, so he called another lawyer. 

However, something went wrong, and the call was monitored.  But, it gets worse: when he started talking to the lawyer (and the lawyer identified himself) the cop listening to things didn?t hang up.  He kept listening.  Based on this, the cop figured that the defendant wanted to use the lawyer file some false affidavits.  The cop approached the lawyer, and the lawyer agreed to cooperate. 

SDO reverses the District Court and holds that there wasn?t any evidence that the defendant really knew about, or was relying on the state regulation in the first place. 

She ends by saying ?We thus reiterate that in holding as we do, we do not express approval of the practice of monitoring calls between attorneys and clients in prisons and jails.?  However, we all know that this gives the green light to all government agents to monitor everything and then hope that Sixth Amendment challenges are waived.

Full post as published by Appellate Law and Practice on July 01, 2008 (boomark / email).