COVID-19 Notice: We Remain Here For You. Learn More.

No Washington State Constitution Protection Against Use of Recorded Jail Calls in Criminal Case

Article I, section 7, of the Washington State Constitution protects individuals from warrantless searches into their private affairs.  Courts must consider what type of information may be discovered through the government’s action and how the interest being asserted has been treated in the past.  A defendant in a Washington criminal case recently challenged his conviction on the grounds the state had violated his right to be free from intrusion into his private affairs.

The defendant was arrested for violating a domestic violence no contact order prohibiting him from contacting his wife.  The order had been modified to allow the parties to communicate by phone, text, and email, but the detective told him the court would probably issue a new no contact order that would not allow phone contact.  The trial court did so the next day.

There is a sign by the jail phone informing inmates calls “are recorded and subject to monitoring.” There is also an automated message that warns the caller and recipient that the “call is subject to recording and monitoring.”  The detective searched for the defendant’s calls and found he had called his wife from the jail phone on four different days.  The state charged him with four counts of felony domestic violence court order violation.

The defendant sought to suppress the call recordings, arguing the detective conducted an unlawful warrantless search.  The trial court noted that both state and federal courts have held inmates do not have an expectation of privacy in their phone calls when the jail puts up a notice warning that calls are recorded.

The defendant was convicted of all counts and sentenced to 60 months.  The defendant appealed.

The defendant argued the state had conducted an unlawful search that violated Article I, section 7, which provides “No person shall be disturbed in his private affairs, or his home invaded without authority of law.” The appeals court found the calls were not “private affairs” because the defendant had received multiple warnings they could be recorded and monitored.

The defendant also argued he had consented to jail officials searching, but not to the state doing so as part of a criminal investigation. The appeals court found the defendant consented to the search when he continued with the calls after being warned they would be recorded.  The appeals court also found the conversations were not protected under Article I, section 7, regardless of who listened to them.

The appeals court affirmed the conviction.

Individuals who are incarcerated should always be aware that their calls may be recorded or monitored.  Additionally, this case should serve as a reminder that a person can be charged with violation of a no contact order or protection order even if the protected person agrees to the contact.  The experienced Washington civil protection order attorneys at Blair & Kim, PLLC, have a thorough understanding of the laws related to protection orders, including the implications of family and criminal law.  Call us at (206) 622-6562 to discuss your case. Whether you are seeking or opposing a civil protection order, we have the skill and experience to help you.

Contact Information