State of New York                                                        OPINION
Court of Appeals                                          This opinion is uncorrected and subject to revision
                                                            before publication in the New York Reports.




 No. 9
 The People &c.,
         Respondent,
      v.
 Emmanuel Diaz,
         Appellant.




 Dina Zloczower, for appellant.
 Leonard Joblove, for respondent.
 The Legal Aid Society; JustLeadershipUSA et al.; Brooklyn Defender Services et al.;
 Sanctuary for Families, Inc., amici curiae.




 FEINMAN, J.:

       The issue in this appeal is whether a correctional facility’s release to prosecutors or

 law enforcement agencies of recordings of nonprivileged telephone calls made by pretrial

 detainees, who are notified that their calls will be monitored and recorded, violates the

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Fourth Amendment. We hold that detainees, informed of the monitoring and recording of

their calls, have no objectively reasonable constitutional expectation of privacy in the

content of those calls (US Const, amend IV). Thus, a correctional facility may record and

monitor detainees’ calls, as well as share the recordings with law enforcement officials and

prosecutors, without violating the Fourth Amendment.

                                             I.

       Defendant Emmanuel Diaz was arrested in July 2012 and charged with multiple

counts of burglary and robbery. Upon his arraignment on the felony complaint, he was

committed to the custody of the New York City Department of Correction (DOC). He was

held in one of the Rikers Island Correctional Facilities until his family posted bail. During

the eight months before defendant posted bail, he made approximately 1,100 phone calls

from prison. At trial, the prosecution sought to introduce excerpts of four phone calls

recorded by DOC containing incriminating statements. After colloquy with the parties

concerning the notice that had been provided to inmates of the electronic surveillance,

Supreme Court admitted the recordings into evidence, over defendant’s objection.

Defendant was subsequently convicted and sentenced.

       The Appellate Division, with one Justice dissenting, affirmed the judgment (149

AD3d 974 [2d Dept 2017]). The majority found that defendant had impliedly consented

to the monitoring and recording of his telephone conversations because DOC had given

him sufficient notice that his calls would be monitored. The Court determined that the

record reflected that DOC had provided several types of notice of the prison’s policy to

monitor and record inmate telephone calls, including the inmate handbook, signs posted

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next to the telephones, and a recorded message preceding every phone call made by

inmates. The majority held it was not reasonable for defendant to presume an expectation

of privacy in the dissemination of the content of his recorded phone conversations.

Although it remarked that the “better practice going forward” might be for DOC to

expressly notify detainees that the recordings of their calls may be turned over to

prosecutors, the majority concluded that the absence of such a warning did not render the

calls inadmissible (id. at 976). Additionally, the majority found no merit to defendant’s

contention that the admission of the recorded phone calls into evidence deprived him of his

right to counsel under the Federal and State Constitutions (id. at 975, citing People v

Johnson, 27 NY3d 199, 205-206 [2016]).

       The dissenting Justice would have held that the calls were inadmissible because

defendant was never informed that the recordings of his calls would be made available to

the prosecutor for potential use at trial (Diaz, 149 AD3d at 977 [Hall, J.P.]). The dissent

contended that DOC should be required to provide proof that detainees were given express

notice that their recorded telephone calls could be turned over to the prosecution for use at

trial (id. at 978). Although the dissent recognized that defendant had no reason to expect

privacy in his calls, it posited that this did not mean he consented to the prosecution having

access to them. The dissenting Justice granted defendant leave to appeal.

                                             II.

       In 2008, DOC began monitoring prisoner phone calls pursuant to an amendment to

the Rules of the City of New York and the subsequent development of new DOC policies



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and procedures.1 Under the Rules of the City of New York, inmates may make telephone

calls during their incarceration, but, “[u]pon implementation of appropriate procedures,”

their calls may be listened to or monitored where they have been given “legally sufficient

notice” (40 RCNY 1-10 [a], [h]). As set forth in its Operations Order,2 DOC “shall record

all inmate telephone calls and retain these recordings,” except calls to inmates’ attorneys

and others included in the Department’s “Do Not Record List.”3 The Operations Order

requires that inmates be notified that their telephone calls will be monitored and/or

recorded by three different methods: (1) signs posted near the telephones used by inmates,

stating in both English and Spanish that calls are monitored and recorded and that using

the phone constitutes consent to the recording or monitoring; (2) a notice in the inmate

handbook that calls can be monitored and recorded; and (3) a recording in Spanish or

English that plays when an inmate picks up the phone receiver, stating that the call may be

recorded and monitored (see Operations Order pp. 8-9, § III [E] [1], [2]).




1
  The changes were part of a revamping of the Minimum Standards for New York City
Correctional Facilities first adopted in 1978 (see City of New York Board of Correction,
Notice of Adoption of Amendments to the Minimum Standards for New York City
Correctional Facilities [2007], available at
https://www1.nyc.gov/assets/boc/downloads/pdf/minimum standards amendments.pdf
[last accessed 1/17/19]).
2
  New York City Department of Correction, Operations Order No. 01/09 [eff Mar. 9,
2009]).
3
  Inmates’ calls to their attorneys, doctors, and clergy are privileged and not recorded, nor
are calls to certain specified agencies (see Operations Order p. 1, § II [A]; see also 40
RCNY 1-10 [h]).

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      Defendant asserts that DOC’s release of his recorded telephone calls to the

prosecution without a warrant violates his Fourth Amendment right to privacy.4

Specifically, defendant maintains that a person’s consent to governmental intrusion can be

no broader than the notice provided. This issue was previously raised in People v Johnson

(27 NY3d 199 [2016]) but was unpreserved. The parties agree that the issue is now

properly before us.

                                           III.

      “The Fourth Amendment protects ‘[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures’”

(Carpenter v United States, ___ US ___, ___, 138 S Ct 2206, 2213 [2018]) and safeguards

two interests—retaining possession of property, and maintaining personal privacy (see

Texas v Brown, 460 US 730, 747 [1983] [Stevens, J., concurring with Brennan and

Marshall, JJ.]; United States v Jacobson, 466 US 109, 113-114 [1984]). A seizure pertains

to the first interest, and a search pertains to the second (Texas v Brown, 460 at 747). The

application of the Fourth Amendment depends on whether the person invoking its

protection can claim a reasonable expectation of privacy in the face of government action

(see Smith v Maryland, 442 US 735, 740 [1979]). A legitimate expectation of privacy

exists where a person has demonstrated an actual (subjective) expectation of privacy and



4
  Defendant had cursorily asserted before the trial court that the recordings violated both
his federal and his state constitutional rights, but made no argument below that the State
Constitution afforded him greater protection than the Fourth Amendment (see People v
Garvin, 30 NY3d 174, 185 n 8 [2017], cert denied 139 S Ct 57 [2018]), and he advances
no such argument here.
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that expectation is one that society is prepared to recognize as reasonable (see Katz v

United States, 389 US 347, 361 [1967] [Harlan, J., concurring]). If such expectations of

privacy are lacking, no Fourth Amendment violation occurs (see New York v Class, 475

US 106, 112 [1986]).

       Even if defendant subjectively believed that his calls were private – a notion that is

largely belied by the record – that expectation was not objectively reasonable. Given the

government’s weighty interest in ensuring institutional security and order, surveillance is

ubiquitous in the prison context (see Hudson v Palmer, 468 US 517, 527-528, 529-530

[1984] [an incarcerated individual’s “expectation of privacy must always yield to what

must be considered the paramount interest in institutional security”]; Bell v Wolfish, 441

US 520, 559 [1979]).

        For instance, correctional officers routinely conduct warrantless searches of

inmates and their cells to keep other inmates and themselves safe (see Bell, 441 US at 547).

The logic underlying the routine monitoring and recording of phone calls is no different

(see United States v Hearst, 563 F2d 1331, 1345 [9th Cir 1977] [detainees’ expectations of

privacy in their phone calls are superseded by “the government’s weighty, countervailing

interests in prison security and order”]; see also Lanza v State of New York, 370 US 139,

143 [1962] [“it is obvious that a jail shares none of the attributes of privacy of a home, an

automobile, an office, or a hotel room. In prison, official surveillance has traditionally

been the order of the day”]; see e.g. United States v Willoughby, 860 F2d 15, 21 [2d Cir

1988] [detention facility’s practice of randomly monitoring and recording pretrial

detainees’ phone calls “in the interest of institutional security is not an unreasonable

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invasion of the privacy rights of pretrial detainees”]). In addition, defendant, like all Rikers

Island inmates, received a number of prominent, unavoidable warnings that his calls were

subject to electronic monitoring and recording by DOC. Because any expectation of

privacy in defendant’s calls was not objectively reasonable, “the Fourth Amendment is

therefore not triggered by the routine taping of such calls” (United States v Van Poyck, 77

F3d 285, 291 [9th Cir 1996]).

       On this basis, federal and state courts across the country have long held that

detainees provided with prior notice of the government’s monitoring and recording of their

phone calls have no reasonable expectation of privacy in the content of the communications

(see United States v Gangi, 57 Fed Appx 809, 814 [10th Cir 2003]; United States v

Friedman, 300 F3d 111, 123 [2d Cir 2002]; United States v Eggleston, 165 F3d 624, 626

[8th Cir 1999]; Van Poyck, 77 F3d at 290-291; United States v Horr, 963 F2d 1124, 1126

n 3 [8th Cir 1992]; United States v Sababu, 891 F2d 1308, 1329 [7th Cir 1989]; United

States v Amen, 831 F2d at 379-380; State v Gilliland, 294 Kan 519, 534, 276 P3d 165, 177

[2012]; State v Hill, 333 SW3d 106, 126 [Tenn Crim App 2010]; In re Grand Jury

Subpoena, 454 Mass 685, 688-689, 912 NE2d 970, 973 [2009]; Decay v State, 2009 Ark

566, 6, 352 SW3d 319, 325-26 [2009]; Preston v State, 282 Ga 210, 214, 647 SE2d 260,

263 [2007]; State v Smith, 117 Ohio App 3d 656, 661, 691 NE2d 324, 327 [Ohio Ct App

1997]). In light of this precedent, defendant understandably does not dispute that DOC’s

monitoring and recording of his phone calls did not constitute a violation of his Fourth

Amendment rights.



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       Defendant, and the dissent, argue that, although DOC’s interception of the content

of the call may have been lawful, its release of the recordings to the prosecutor’s office

without notice was an additional search that violated the Fourth Amendment. We disagree.

       As a number of courts have explained, where detainees are aware that their phone

calls are being monitored and recorded, all reasonable expectation of privacy in the content

of those phone calls is lost, “and there is no legitimate reason to think that the recordings,

like any other evidence lawfully discovered, would not be admissible” (United States v

Eggleston, 165 F3d at 626; see also United States v Novak, 531 F3d 99, 103 [1st Cir 2008]

[holding that because the defendant had consented to the monitoring of his calls, they could

be introduced into evidence “consistently with the requirements of the Fourth

Amendment”]; United States v Green, 184 Fed Appx 617, 618 [9th Cir 2006] [observing

that disclosure of recordings to prosecution “does not … provide a basis for establishing a

violation of … the Fourth Amendment”]; see also People v Natal, 75 NY2d 379, 382-383

[1990]).5 Moreover, the signs posted near the telephones used by the inmates state that

calls are monitored in “accordance with DOC policy” which, according to the DOC

Operations Order, provides that while recordings are confidential and not available to the

public, the District Attorney’s Office may request a copy of an inmate’s recorded calls

which will be provided upon approval by DOC.6 Although the inmate handbook provided



5
  This is particularly true where, as here, DOC provided multiple notices both that inmates’
conversations could be monitored and recorded and that use of the phones constituted
consent to that monitoring and recording (see United States v Workman, 80 F3d 688, 693-
694 [2d Cir 1996]; Amen, 831 F2d at 379).
6
  See Operations Order pp. 6, § III (5) (b); 7, § III (C) (1).
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at Rikers Island gives notice that inmate telephone calls may be monitored “for purposes

of security,” that statement simply explains one of the reasons for DOC’s monitoring

practice; it says nothing about the potential uses or dissemination of the recordings. In

addition, the recorded notice heard when first making a telephone call does not restrict the

use of the recording.

       We therefore reject defendant’s argument that he retained a reasonable expectation

of privacy once the calls were lawfully intercepted by DOC and hold that there were no

additional Fourth Amendment protections that would prevent DOC from releasing the

recording to the District Attorney’s Office absent a warrant.

       Defendant’s remaining arguments, challenging the “voluntariness” of any findings

of consent to the monitoring and recording of his phone calls, and claiming that his due

process and equal protection rights were violated, are unpreserved for our review.7

       Finally, we agree with the Appellate Division that the existing record does not

support a finding that defendant’s trial counsel was ineffective as a matter of law.

       Accordingly, the order of the Appellate Division should be affirmed.




7
  Defendant has abandoned his argument made to the Appellate Division that admission of
the recordings deprived him of his right to counsel under the Federal and State
Constitutions.
                                            -9-
People v Emmanuel Diaz

No. 9




WILSON, J. (dissenting):

        The New York City Department of Correction (DOC) routinely records the

telephone calls of Rikers Island inmates “for security purposes,” yet delivers the recordings

to the District Attorney’s office for use in prosecution. The Fourth Amendment cannot

permit that practice.

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                                               I

       Mr. Diaz was advised of the consequence of using the phone in Rikers Island; the

majority says he proceeded at his peril and therefore forfeited any privacy right he may

have had in his calls. That conclusion is superficially understandable but, in reality, ignores

crucial facts: (1) Mr. Diaz was not free to leave Rikers Island but was incarcerated for eight

months awaiting trial, with no other viable means of everyday communication with the

outside world;1 (2) others accused of crimes but out on bail cannot be subjected to

governmental recording and monitoring without a warrant; (3) Mr. Diaz was charged with

crimes and needed to assemble a defense and gather evidence that might mitigate his

sentence if convicted; (4) Mr. Diaz was specifically told that the recording of his calls was

for the purpose of jail security; and (5) Mr. Diaz was not told that his calls would be

funneled en masse to the District Attorney prosecuting his case, to be combed for

statements to use against him.

       Those differences matter.        By discounting them, the majority’s analytical

framework is internally inconsistent. The majority relies approvingly on Justice Harlan’s

well-accepted statement that the expectation of privacy “is a twofold requirement, first that

a person have exhibited an actual (subjective) expectation of privacy and, second, that the

expectation be one that society is prepared to recognize as ‘reasonable’” (Katz v United

States, 389 US 347, 361 [1967] [Harlan, J., concurring]).           The majority begins by



1
  Yes, he could write letters, but those too could be opened and examined. He could see in-
person visitors, but only as frequently as they could make the onerous journey to Rikers
Island, which is hardly a substitute for everyday phone communication.
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announcing that “detainees, informed of the monitoring and recording of their calls, have

no objectively reasonable constitutional expectation of privacy in the content of those

calls” (majority op at 2, emphasis added). The majority’s rationale must rest on the

proposition that pretrial detainees have a diminished expectation of privacy resulting from

the fact of detention; otherwise, the government could notify the general public that it was

monitoring their phone calls and thereby eliminate the reasonable expectation of privacy.

The majority’s analysis must also depend on the notion of implied consent, because if

pretrial detention alone were sufficient to remove all expectation of privacy in inmate

phone calls, the majority would have no need to mention consent at all. Thus, under the

majority’s framework, neither Mr. Diaz’s status as a pretrial detainee nor his implied

consent would—without the other—eliminate his privacy rights in the calls.

       Later, however, the majority states: “[c]orrectional officers routinely conduct

warrantless searches of inmates and their cells to keep other inmates and themselves safe.

The logic underlying the routine monitoring and recording of phone calls is no different”

(majority op at 6, internal citation omitted). That conclusion rests on the proposition that

pretrial detainees have no expectation of privacy. But unlike the majority’s rationale here,

the cases upholding the constitutionality of such searches do not depend on any theory of

notice or implied consent (see Bell v Wolfish, 441 US 520, 557 [1979] [upholding a policy

that detainees must exit their rooms while correctional officials conduct “shake-down”

searches because that “appropriate security measure” does not infringe on whatever

expectation of privacy detainees may have]). However, as I explain later, all four Appellate


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Division Justices below, and the parties in this case, agree that pretrial detainees like Mr.

Diaz have some expectation of privacy in their phone calls—conclusions that accord with

existing case law on the subject (cf Florence v Board of Chosen Freeholders of County of

Burlington, 566 US 318, 322, 338-39 [2012] [upholding a policy to conduct visual strip

and body cavity searches of all pretrial detainees upon intake but suggesting those searches

could violate a detainee’s privacy rights in other scenarios]; Bell, 441 US at 557-58

[assuming without deciding that pretrial detainees retain at least “a diminished expectation

of privacy”]). Indeed, the People concede that if DOC gave no notice to inmates that their

calls would be recorded or monitored, that recording or monitoring would violate the

Fourth Amendment. I discuss this in part I, infra.

       The broader problem, with which the majority fails to come to grips, is that

determining what expectation of privacy society would recognize as reasonable depends

on the government’s need for—and intended use of—the information obtained in

derogation of a privacy right. The fact that information is known to someone other than its

owner does not divest the owner of all privacy interests in that information. In the old

world, it was relatively simple to draw a line between private information exchanges to

which no third party was present and nonprivate information exchanges to which a third

party was present. But the new world does not—and cannot—abide by that taxonomy.

Eventually, as I explain in part IV, we come back to Justice Harlan’s question: what would

society consider reasonable? As Judge Pigott, a retired member of this Court, wrote of the

DOC policy at issue today: “The current arrangement between the Department of


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Correction and the District Attorney’s office creates a serious potential for abuse and may

undermine the constitutional rights of defendants who are unable to make bail” (People v

Johnson, 27 NY3d 199, 208 [2016] [Pigott, J., concurring]). Society should not consider

that arrangement reasonable.

                                             II

       The Fourth Amendment guarantees that “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and seizures, shall

not be violated” (US Const, amend IV). That promise requires the government to obtain a

search warrant supported by probable cause, or else the consent of the person being

searched, before searching something in which that person has a legitimate expectation of

privacy.   Those requirements manifest the “basic purpose of this Amendment”: a

commitment to “safeguard the privacy and security of individuals against arbitrary

invasions by governmental officials” (Carpenter v United States, 138 S Ct 2206, 2213

[2018]), quoting Camara v Municipal Court of City and County of San Francisco, 387 US

523, 528 [1967]).

       The Founders designed the Fourth Amendment as a “response to the reviled general

warrants and writs of assistance of the colonial era, which allowed British officers to

rummage through homes in an unrestrained search for evidence of criminal activity” (id.

at 2206, quoting Riley v California, 134 S Ct 2473, 2494 [2014], internal quotation marks

omitted). That opposition to unwarranted government searches was “in fact one of the

driving forces behind the Revolution itself” (Riley, 134 S Ct at 2494, citing Boyd v United

States, 116 US 616 [1886]), reflecting the consensus that such unrestrained government

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power had no place in the new United States. By requiring a warrant or consent to search

or seize an individual’s person or property, the Fourth Amendment serves “to put the courts

of the United States and Federal officials”—and, since its incorporation against the states,

state courts and officials2—“in the exercise of their power and authority, under limitations

and restraints as to the exercise of such power and authority” (Weeks v United States, 232

US 383, 391-92 [1914]).

       The Supreme Court initially interpreted the Fourth Amendment to protect against

searches of material things only, explicitly rejecting in Olmstead v United States a claim

that it protects against the interception of electronic communications (277 US 438 [1928],

overruled in part by Katz v United States, 389 US 347 [1967]). But the Court later

abandoned that limitation, confirming that the right of privacy rests with “people, not

places”—and includes communications in which a person has a reasonable expectation of

privacy (Katz, 389 US at 351). Mr. Diaz has such an expectation here.

       Importantly, all agree to the proposition that Mr. Diaz has some protectable

expectation of privacy in his calls. The lower courts so held,3 and, by concluding that Mr.


2
  Mapp v Ohio (367 US 643 [1961]) incorporates the Fourth Amendment against the states.
3
  The Appellate Division noted that “‘convicted prisoners do not forfeit all constitutional
protections by reason of their conviction and confinement in prison,’ and certainly ‘pretrial
detainees, who have not been convicted of any crimes, retain at least those constitutional
rights that . . . are enjoyed by convicted prisoners’” (People v Diaz, 149 AD3d 974, 976
(3d Dep’t 2017), quoting Bell, 441 US at 545). From the Appellate Division’s conclusion
that the notice given to Diaz—in the inmate handbook, in the signs posted by the
telephones, and in the audio recording that plays before each outgoing call—sufficiently
constituted his implied consent to be recorded by DOC, it necessarily follows that the court
concluded Mr. Diaz has an expectation of privacy that would require consent to search.
With the addition of the dissenting Justice Hall, all four Justices agreed that, absent consent,

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Diaz forfeited that expectation through implied consent, the majority agrees as well. The

People reaffirmed at oral argument that Mr. Diaz “certainly” has an expectation of privacy

in his phone calls and that absent his consent, monitoring or recording his calls would have

violated his Fourth Amendment rights.4

       Those concessions and lower court holdings square with Fourth Amendment

jurisprudence by which we are bound. As the Appellate Division reiterated, “convicted

prisoners do not forfeit all constitutional protections by reason of their conviction and

confinement in prison” (Bell, 441 US at 545). Indeed, “[t]here is no iron curtain drawn

between the Constitution and the prisons of this country” (Wolff v McDonnell, 418 US

539, 555-56 [1974]).     Convicted prisoners retain, for instance, at least some of the

constitutional protections guaranteeing freedoms of speech and religion (see Pell v

Procunier, 417 US 817 [1974]; Cruz v Beto, 405 US 319 [1972]; Cooper v Pate, 378 US

546 [1964]); freedom from invidious racial discrimination (Lee v Washington, 390 US 333

[1968]); access to the courts (Johnson v Avery, 393 US 483 [1969]); and due process of

law in any deprivation of life, liberty or property (Meachum v Fano, 427 US 215 [1976]).

Accepting that convicted inmates retain some constitutional protections, “[a] fortiori,

pretrial detainees, who have not been convicted of any crimes, retain at least those


the monitoring or recording of the calls would violate Mr. Diaz’s right to privacy under the
Fourth Amendment.
4
  A word on wiretapping: Mr. Diaz makes no claim under any wiretapping statute, so there
is no need to interpret those statutes in his case. In People v Cisse, argued the same day as
this case, Mr. Cisse made no Fourth Amendment claim, only a wiretapping claim. For
purposes of the wiretapping statute, consent, however limited, renders the interception not
a violation of the wiretapping statute; the same is not true as regards a limited waiver of
one’s Fourth Amendment rights.
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                                             -8-                                          No. 9

constitutional rights that we have held are enjoyed by convicted prisoners” (Bell, 441 US

at 545).

       However, for pretrial detainees and convicted inmates alike, “[t]he fact of

confinement as well as the legitimate goals and policies of the penal institution limits these

retained constitutional rights” (Bell, 441 US at 546; see also Jones v North Carolina

Prisoners’ Labor Union, 433 US 119, 125 [1977]; Pell, 417 US at 822). To that end, there

must be a “mutual accommodation between institutional needs and objectives and the

provisions of the Constitution that are of general application” (Wolff, 418 US at 556). That

principle “applies equally to pretrial detainees and convicted prisoners,” who implicate the

same security concerns regardless whether they have been convicted of any crime (Bell,

441 US at 546). Accordingly, the “restrictions and limitations” that our society places on

an incarcerated individual must be consistent with “the considerations underlying our penal

system”—of which “institutional security and preserving internal order and discipline are

essential” (id. at 545, 546). Our system gives wide latitude to correctional officials to take

“appropriate action to ensure the safety of inmates and corrections personnel and to prevent

escape or unauthorized entry” (id. at 547), on the theory that those officials are best situated

to determine what security measures are required to maintain security and order in a

correctional facility. That latitude has been used to uphold a range of intrusions—some

quite severe—into an inmate’s expectation of privacy.

       For a criminal defendant who is not detained but is instead out on bail, the Fourth

Amendment undoubtedly requires law enforcement to obtain a warrant to monitor that


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                                            -9-                                         No. 9

person’s calls. As a pretrial detainee not convicted of any crime at the time the phone

recordings at issue in this case were made, Mr. Diaz is, as a starting point, entitled to that

same level of constitutional protection.     Nevertheless, the People argue that DOC’s

monitoring is lawful because, by using the phones after receiving notice of DOC’s

recording policy—which explicitly states that use of the phones shall constitute implied

consent—Mr. Diaz impliedly consented to a search by DOC. I disagree with that view—

now advocated by the majority—because it disregards the limits of DOC’s institutional

authority, which if left unchecked undermines the foundation of the Fourth Amendment’s

protection against unwarranted government intrusions.

                                              A

       There is a serious question as to whether, in the sort of circumstances present here,

consent can be implied from an inmate’s use of the phones following notice.5 In numerous

areas of the law, consent is deemed involuntary—and hence ineffective—when made under

duress (see, e.g., Centro Empresarial Cempresa S.A. v Am. Movil, S.A.B. de C.V., 17

NY3d 269, 276 [2011] [releases from liability]; Hammelburger v Foursome Inn Corp., 54

NY2d 580, 592-94 [1981] [mortgage foreclosure]; Austin Instrument, Inc. v Loral Corp.,


5
  The idea that notice plus action equals consent is highly suspect in this context. Were
notice plus action sufficient to constitute consent to a search, “law enforcement officials,
simply by announcing their intent to monitor the content of random samples of first-class
mail or private phone conversations, could put the public on notice of the risks they would
thereafter assume in such communications” (Smith v Maryland, 442 US 735, 750 [1979]
[Marshall, J., dissenting]). In the particular context of incarceration, where Mr. Diaz has
no realistic option but to use the phones to communicate with loved ones and participate in
his defense, and no bargaining power to negotiate the terms of DOC’s policy, Justice
Marshall’s concern resonates even more strongly.
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                                            - 10 -                                      No. 9

29 NY2d 124, 130 [1971] [economic duress in contracts generally]; cf McFarland v

McFarland, 70 NY2d 916, 917 [1987] [marital separation agreements]; Matter of Sarah K.,

66 NY2d 223, 232 [1985] [adoption]). Although the Fourth Amendment permits some

intrusions into an inmate’s privacy rights without consent (see, e.g., Bell, 441 US at 558-

60 [upholding policy to conduct visual strip and body cavity searches of all inmates after

in-person visits]; id. at 555-57 [upholding policy to search inmates’ living areas and

possessions while they are not present]), there is a further serious question as to whether

DOC may establish lawful grounds to monitor inmate phone calls without consent for

purposes related to prison safety and security. I do not opine on either of those questions

here: as to the first, because it is a largely factual question requiring development of a

record; as to the second, because DOC is not represented in this litigation and because the

People have conceded that absent an inmate’s consent, the monitoring and recording would

violate the Fourth Amendment.

       Thus, for the purposes of this case, I assume that Mr. Diaz waived his expectation

of privacy—as against DOC, for security purposes—by providing his implied consent to

be monitored and recorded in accordance with DOC policy. According to the record,

inmates and pretrial detainees at Rikers Island received three forms of notice of that policy.

First, all inmates must sign the inmate handbook, which states:

              “All calls, except for calls with your attorney or other
              privileged calls, may be monitored and/or recorded by the
              Department for security purposes. In order for your attorney
              and other privileged calls not to be monitored you must provide
              the Department with the phone numbers to which calls should
              not be monitored, and the Department will check that those
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                                           - 11 -                                     No. 9

              numbers belong to attorneys or other persons with privileged
              contact with you. Your use of the telephone in a Department
              facility constitutes your implied consent to such monitoring”
              (emphasis added).
Second, signs posted in English and Spanish next to the telephones read:

              “INMATE TELEPHONE CONVERSATIONS ARE
              SUBJECT TO ELECTRONIC MONITORING AND/OR
              RECORDING IN ACCORDANCE WITH DOC POLICY. AN
              INMATE’S USE OF INSTITUTIONAL TELEPHONES
              CONSTITUTES CONSENT TO THIS MONITORING
              AND/OR RECORDING” (emphasis added).
Third, a brief recorded message at the start of each call warns that calls “may be recorded

and monitored” (A236).6 The first notice plainly limits the purpose of the monitoring and

recording to that conducted “by the Department for security purposes”; the second, by

referencing “DOC POLICY” incorporates the first; and the third, in its brevity, does

nothing to dispel the prior restrictions on the purpose and use of the monitored calls. The

implied consent provision of the inmate handbook, for its part, states that “[y]our use of

the telephone in a Department facility constitutes your implied consent to such

recording”—that is, to the limited recording described. Likewise, the signs posted by the

phones state that use of the phones “CONSTITUTES CONSENT TO THIS

MONITORING AND/OR RECORDING”—as in, to the monitoring and recording for

security purposes that the signs reference in the first place. DOC thereby sought Mr. Diaz’s




6
  The record does not contain a recording or transcription of the actual message, only a
testimonial description of it.


                                           - 11 -
                                           - 12 -                                     No. 9

implied consent for its own security purposes—the only purpose for which it could seek

consent; that is the only consent Mr. Diaz even arguably gave.

       Working again from the agreed-upon proposition that Mr. Diaz and other pretrial

detainees have some reasonable expectation in the privacy of their calls, the mere fact that

Mr. Diaz has communicated some information to some other person does not entitle the

prosecution to obtain that information without his consent or without a warrant—neither

of which it had in this case.7 In other words, Mr. Diaz’s consent to a search by DOC, a

non-law enforcement governmental entity, for its own security purposes cannot reasonably

be construed to include consent for the District Attorney—a law enforcement entity—to

search that information for prosecutorial purposes.

                                             B

       The bases on which an incarcerated person’s—or anyone’s—constitutional rights

may be overcome is limited by the nature of the governmental need. The majority

implicitly recognizes as much, noting that prison surveillance is justified by the

“government’s weighty interest in ensuring institutional security and order” (majority op

at 6, citing Hudson v Palmer, 468 US 517, 527-28, 529-30 [1984]). As but one example,

although the Fourth Amendment by its language prevents all unreasonable warrantless


7
  Even when only a single governmental entity is involved—and not two, as was the case
here, “[t]he standard for measuring the scope of a suspect’s consent under the Fourth
Amendment is that of ‘objective’ reasonableness—what would the typical reasonable
person have understood by the exchange between the officer and the suspect?” (Florida v
Jimeno, 500 US 248, 251 [1991] [holding that a criminal suspect’s consent for police to
search his vehicle did not constitute consent for police to search a bag within the vehicle
that could not reasonably have contained the object police were searching for]).
                                           - 12 -
                                           - 13 -                                     No. 9

searches and seizures, the governmental need for a warrantless search in exigent

circumstances (see Mincey v Arizona, 437 US 385, 394 [1978]) or incident to a lawful

arrest (see Chimel v California, 395 US 752, 763 [1969]) can overcome the privacy right

that the constitution guarantees. As relevant to Mr. Diaz, the Supreme Court has long

“insisted that prisoners be accorded those rights not fundamentally inconsistent with

imprisonment itself or incompatible with the objectives of incarceration”; that is, they

retain those rights not inconsistent with the legitimate penological needs and safety and

security concerns that incarceration entails (Hudson, 468 US at 523).

       Nothing in this case justifies the governmental intrusion of Mr. Diaz’s privacy

inherent in the District Attorney’s unfettered access to his phone calls for the duration of

his pretrial detention. The security purposes that expressly underlie DOC’s policy to record

and monitor detainees’ calls are not offered to justify the wholesale disclosure of those

recordings to the District Attorney to prosecute Mr. Diaz for the crime for which he was

detained—nor could they.

       To determine whether the government may lawfully infringe upon an inmate’s

privacy, the Supreme Court has explained that:

              “The test of reasonableness under the Fourth Amendment is
              not capable of precise definition or mechanical application. In
              each case it requires a balancing of the need for the particular
              search against the invasion of personal rights that the search
              entails. Courts must consider the scope of the particular
              intrusion, the manner in which it is conducted, the justification
              for initiating it, and the place in which it is conducted” (Bell,
              441 US at 559).




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                                           - 14 -                                      No. 9

The Court further explained: “when an institutional restriction infringes a specific

constitutional guarantee . . . the practice must be evaluated in the light of the central

objective of prison administration, safeguarding institutional security” (id. at 547, citing

Jones, 433 US at 129; Pell, 417 US at 823). Indisputably, DOC has a substantial interest

in ensuring that pretrial detainees (and convicted inmates alike) are not planning to smuggle

contraband into the facility, attempting to tamper with potential witnesses, planning an

escape, or participating in the planning of some further crime.8

       That interest, however, does not justify the intrusion of privacy inherent in turning

those recordings over to the prosecution. It is simply implausible that the wholesale

disclosure of phone call recordings to the District Attorney advances jail security—and the

parties do not contend so. Such disclosure does not strengthen DOC’s ability to maintain

order, to discover an inmate’s efforts to smuggle contraband or hatch an escape, or to

monitor for involvement in illegal activity on the outside. DOC, not the District Attorney,

is responsible for facility security. Although disclosing the recordings to the District

Attorney may often facilitate prosecution for past criminal activity, “[p]rivacy comes at a

cost” (Riley, 134 S Ct at 2493); whatever benefit that access might entail is not nearly


8
  The record contains no evidence that DOC’s monitoring of inmate phone calls is
necessary to maintain security at Rikers Island, nor is there evidence that the District
Attorney’s office has any weighty need for the recordings. Until 2008, DOC did not record
inmate phone calls (and, therefore, did not turn any such recordings over to the District
Attorney). There is no evidence that, before the District Attorney’s office had unfettered
access to recordings of inmate phone calls, its functions were hampered, much less
hampered so significantly as to justify the intrusion at issue here. The People make no
argument at all as to their need for the phone calls—they simply assert a right to have them
because DOC has them. If the People did have such a need, the time-honored path to
establish it would be through application for a search warrant.
                                           - 14 -
                                            - 15 -                                     No. 9

sufficient to overcome the protections the Fourth Amendment provides. Instead, that type

of suspicionless search by the government is just what Fourth Amendment prohibits.

                                             III

       The People argue that, under what is termed the “third-party” doctrine, a person

forfeits all expectation of privacy in information voluntarily disclosed to a third party.

Thus, they argue, Mr. Diaz forfeited his expectation of privacy in the call recordings by

consenting to DOC’s recording and monitoring. That argument fails, and its acceptance

bodes ill for the privacy interests of law-abiding individuals.

       Application of the third-party doctrine would contravene the test set out in Bell and

therefore cannot be available here. DOC is a governmental actor that has obtained limited

consent from Mr. Diaz for “security purposes” only. According to the People and the

majority, that access constitutes the “third-party disclosure” that eliminates all privacy

interests Mr. Diaz (or the recipients of the calls) may have in those phone calls. The

majority maintains that when the inmate handbook “gives notice that inmate telephone

calls may be monitored ‘for purposes of security,’ that statement simply explains one of

the reasons for DOC’s monitoring practice; it says nothing about the potential uses or

dissemination of the recordings” (majority op at 8, emphasis added). Under the majority’s

construction, if I ask to borrow your car to drive to the corner store, I may enter it into a

demolition derby, because I did not say the only thing I was going to use it for was to go to

the store. You would be shocked if I said you had impliedly consented, and no court would

conclude you had impliedly consented to a use fundamentally different from the one I

specifically expressed.

                                            - 15 -
                                            - 16 -                                      No. 9

       Beyond its detachment from the way consent operates in the real world, the

majority’s rule contravenes the Bell test by disposing of any inquiry into the DOC’s need

to collect the information it seeks through a particular search. By allowing DOC to collect

information “for security purposes” and routinely deliver it to law enforcement on the

theory that the subject has forfeited all expectation of privacy, the majority enables the

government to circumvent the Fourth Amendment by collecting private information

without a warrant for one ostensible purpose and then deeming it non-private for a purpose

as to which a warrant would have been required.

       Consider the following. Suppose DOC determined that it could maintain jail

security without monitoring and recording inmates’ calls after all. But, because the District

Attorney wanted the recordings, DOC continued to record all nonprivileged conversations

and to turn them over to the District Attorney. Unless we are willing to say that irrespective

of DOC’s need to record inmate conversations—which Bell requires us to weigh against

an inmate’s expectation of privacy—the District Attorney’s desire to do so is sufficient to

overcome the privacy rights of inmates in such calls, we cannot permit such a simple

evasion of the Fourth Amendment as is offered here.

       For that reason, the People’s argument that Mr. Diaz’s calls are nonprivileged and

therefore subject to the third-party doctrine is a red herring. My phone call to a friend is

nonprivileged, but that does not mean the state may intercept it without a warrant and use




                                            - 16 -
                                           - 17 -                                     No. 9

its contents to prosecute me.9 Surely, the state may ask my friend what I said, and my

friend may volunteer the contents of our conversation or may be compelled to do so by

legal process. Neither of those methods would violate the Fourth Amendment. Likewise

here, the District Attorney could have contacted the recipients of Mr. Diaz’s phone calls to

inquire about the contents of his conversations, and could have subpoenaed them. But

merely because the state could use lawful means to obtain the substance of the information

from third parties does not mean that it may use any means to obtain the information simply

because it has been divulged to some third party.

       This case is also distinguishable from those in which the police request to search a

location for a particular type of contraband or evidence, obtain consent, and discover

something else in plain view. For instance, if the police obtain permission from a

homeowner to search a home for drugs, and instead find unregistered handguns on the

table, the police may seize those handguns, and the prosecution may use them as evidence

to support a weapons possession charge. In that case, the homeowner consented to a search

by law enforcement, and it is the plain-view doctrine, not the third-party doctrine, that

allows police to seize those guns. Mr. Diaz consented to no such law enforcement search.

He presumably understood that his phone communications would be searched by DOC—




9
  In evaluating the societal reasonableness of the wholesale transfer of Mr. Diaz’s phone
calls to the District Attorney, it is vital to remember that both DOC and the District
Attorney are governmental actors. As a society, we understand that my friend—a private
actor—is free to recount to others—even to the District Attorney—our conversation, but
that the District Attorney is not permitted to bug our call to obtain that same information.

                                           - 17 -
                                           - 18 -                                     No. 9

the government actor responsible for security on Rikers Island, not the District Attorney—

the government actor responsible for his criminal prosecution.

       We come back around, then, to whether we, as a society, want to prosecute crime

by jailing suspects for lengthy periods of time in relatively inaccessible locations and

monitoring their calls for statements that might be used against them. We might obtain a

higher conviction rate with rubber hoses or waterboards, but that is not the civilization we

want. Our society is committed to safeguarding the right against self-incrimination and the

right to counsel. I find myself again with Judge Pigott in describing the society we do want

and with it, what measure of privacy pre-trial detainees should reasonably expect:

              “Faced with the possibility that anything a defendant says over
              the telephone can (and will) be used against him a trial, the
              defendant’s only real choice is not to use the phones at all. I
              cannot sanction that result. Trial courts must be vigilant to
              protect the detainees’ constitutional rights, and consideration
              should be given to placing limitations on the prosecutor’s ability
              to obtain these recordings” (Johnson, 27 NY3d at 211 [Pigott,
              J., concurring]).


Such limitations are at the core of the Fourth Amendment’s promise.

                                             IV

       The broader deficiency in the majority’s analysis is that the third-party doctrine is

eroding under the flow of technological change, just as traditional conceptions of privacy

based in property, places, and physical objects have been abandoned over the last century.

Nearly a century ago, in Olmstead v United States, the Supreme Court held that

wiretapping did not violate the Fourth Amendment:



                                           - 18 -
                                            - 19 -                                      No. 9

              “The [Fourth] Amendment itself shows that the search is to be
              of material things -- the person, the house, his papers, or his
              effects. . . . The Amendment does not forbid what was done
              here. There was no searching. There was no seizure. The
              evidence was secured by the use of the sense of hearing, and
              that only. There was no entry of the houses or offices of the
              defendants. . . . The language of the Amendment cannot be
              extended and expanded to include telephone wires reaching to
              the whole world from the defendant’s house or office. The
              intervening wires are not part of his house or office any more
              than are the highways along which they are stretched” (277 US
              438, 464 [1928]).


Four decades later, the Court diverged from that property-based conception of privacy

rights, acknowledging in Katz v United States that over time, “the underpinnings of

Olmstead . . . have been so eroded by our subsequent decisions that the ‘trespass’ doctrine

there enunciated can no longer be regarded as controlling” (389 US 347, 353 [1967]).

Representing a broad expansion of privacy protections to “people, not places” (id. at 516),

Katz holds specifically that the government cannot constitutionally intercept calls placed

from a phone booth. Although the booth itself was located on a public street, the “critical

fact in this case” was that “one who occupies [a phone booth], shuts the door behind him,

and pays the toll that permits him to place a call is surely entitled to assume that the words

he utters into the mouthpiece will not be broadcast to the world” (id. at 511, 517). With the

advent of cell phones, it would be absurd to maintain that place-based conception of

privacy—to say that the “critical fact” underpinning our expectation that the government

will not intercept our calls is the act of shutting a door behind us before dialing.

       The chief concern of the Fourth Amendment is to protect against arbitrary

government power that unjustifiably intrudes on the sphere of privacy attendant to

                                            - 19 -
                                              - 20 -                                       No. 9

personhood. That guarantee is foundational to our national promise, and we must be

vigilant in our efforts to ensure it is not eroded. The way in which we articulate its contours

is not static, because the conditions in which information about each of us is discoverable

by the state is not static.

       For the first two centuries of our nationhood, Fourth Amendment doctrine has been

based in large part on a fairly simple rubric about what is private and what is not; something

is not private if it is observable to the public, or if it is voluntarily disclosed to another, or

if it is outside your home. But in many ways, as the differences between Katz’s world and

today’s exemplifies, those assumptions no longer hold. As technology has developed, old

assumptions and guideposts are ever challenged, providing doctrinal puzzles that we must

solve with coherence and with respect for the principles that undergird the Fourth

Amendment.        The old rules of thumb are deteriorating as useful metrics of the

reasonableness of an expectation of privacy.

       The Supreme Court’s most recent articulations of Fourth Amendment doctrine have

recognized that, just as privacy rules for an agrarian society did not translate well into an

industrial one, privacy rules from the Industrial Age do not translate well into the

Information Age. For instance in Kyllo v United States, the Court held that a thermal

imaging scan of a suspect’s home was a search; “obtaining by sense-enhancing technology

any information regarding the interior of the home that could not otherwise have been

obtained without physical ‘intrusion into a constitutionally protected area’ constitutes a

search—at least where (as here) the technology in question is not in general public use”

(533 US 27, 34 [2001], quoting Silverman v United States, 365 US 505, 512 [1961],

                                              - 20 -
                                           - 21 -                                      No. 9

internal citation omitted). That holding challenged the old doctrinal assumption that a

person had no expectation of privacy in something “observable” to law enforcement.

       Increasingly, Fourth Amendment jurisprudence is retreating from the traditional

third-party doctrine, in recognition that a sine qua non of modern society is the deposit of

mountains of personal data with third parties who preserve it indefinitely. Most recently,

in Carpenter v United States, the Supreme Court held “that an individual maintains a

legitimate expectation of privacy in the record of his physical movements as captured

through CSLI,” or cell-site location information, the vast data that places a cell phone—

and, by implication, its user—in a particular place at a particular time (138 S Ct 2206, 2217

[2018]). Accordingly, the Court concluded, the government could not obtain CSLI from

wireless carriers, which it had used at trial to place Mr. Carpenter near the locations of

several robberies for which he was charged, without a warrant. Carpenter grew from the

Court’s earlier decision in Riley v California, which held that the police may not, without

a warrant, search the digital contents of a cell phone lawfully seized from a person who has

been arrested (134 S Ct 2473 [2014]). In both cases, the government seized the data at

issue from a third-party wireless carrier with which the user had indisputably and

knowingly shared it.

       The mere fact of disclosure to a third party, however, did not eliminate the user’s

expectation of privacy in that information.         Indeed, in Carpenter, the defendant’s

movements were on the public streets, and he would have been visible to anyone in his

vicinity. Under a traditional view, he could not have had a reasonable expectation of


                                           - 21 -
                                           - 22 -                                     No. 9

privacy in his location, but the Court held that he could have a reasonable expectation of

privacy in the location data sent by his cell phone to his wireless carrier. Mr. Carpenter’s

wireless carrier needed to have that information for its own business purposes, not to aid

the government in prosecuting Mr. Carpenter; likewise here, DOC needs to record Mr.

Diaz’s phone calls for its own security purposes, not to aid the government in prosecuting

Mr. Diaz.

       In its shift away from the blind application of the third-party doctrine, the Court

recognized that that doctrine “partly stems from the notion that an individual has a reduced

expectation of privacy in information knowingly shared with another” (Carpenter, 138 S

Ct at 2219); by sharing information with a third party, such as a bank (see United States v

Miller, 425 US 435 [1976]) or a telephone company (see Smith v Maryland, 442 US 735

[1979]), an individual is traditionally said to have “assumed the risk that the company

would reveal to police” the information at issue (Smith, 442 US at 744).

       But, that “diminished privacy interest does not mean that the Fourth Amendment

falls out of the picture entirely” (Riley, 134 S Ct at 2488). Importantly, Smith and Miller

“did not rely solely on the act of sharing” to hold that the information at issue was not

private (Carpenter, 138 S Ct at 2219). Instead, the Court considered “the nature of the

particular documents sought to determine whether there is a legitimate expectation of

privacy concerning their contents” (id. at 2220, quoting Miller, 425 US at 442, internal

quotation marks omitted). In Carpenter and Riley, the nature of the cell phone information

sought—a robust record of the user’s life and whereabouts—made it sufficiently


                                           - 22 -
                                            - 23 -                                      No. 9

distinguishable from the bank records sought in Miller and the outgoing numbers dialed

from a landline sought in Smith.10 Given the ubiquity of modern cell phones and their

technological capacity to trace our every location and communication, “in no meaningful

sense does the user voluntarily ‘assume[] the risk’ of turning over a comprehensive dossier

of his physical movements” (Carpenter, 138 S Ct at 2220, quoting Smith, 442 US at 745).

       That comparison emphasizes the new nature of smartphone technology and the

massive quantity of data stored on those devices to distinguish Carpenter and Riley from

prior third-party doctrine decisions. Although in Mr. Diaz’s case the intrusion stems from

good, old-fashioned landline surveillance, it too involves modern technology that made it

possible for DOC to record and store massive amounts of data and deliver more than a

thousand voice recordings to the District Attorney with the click of a mouse. The intrusion

is also distinguishable in a more odious way: the third party obtaining and sharing the

information is not a private party but is instead an arm of government. It is exactly such

governmental intrusions from which the Fourth Amendment shields us.

       The attempt to reconcile old doctrine with an evolving new doctrine is difficult. In

his concurring opinion in Riley, Justice Alito expressed concern that the majority opinion



10
   Although the Court has distinguished, not overruled, cases such as Smith and Miller
along these lines, I agree with Justice Marshall that “[t]hose who disclose certain facts to a
bank or phone company for a limited business purpose need not assume that this
information will be released to other persons for other purposes” (Smith, 442 US at 749
[Marshall, J., dissenting]); “unless a person is prepared to forgo use of what for many has
become a personal or professional necessity, he cannot help but accept the risk of
surveillance” (id. at 750). For that reason, such third-party disclosures constitute consent
for the information at issue to be shared with the third party company only, not with law
enforcement.
                                            - 23 -
                                           - 24 -                                      No. 9

extended more protections to the outgoing phone calls of arrestees using a cell phone to

comparable calls made using a landline. But, recognizing that that there was no workable

alternative, he agreed with the decision that the Fourth Amendment does not allow

warrantless search of a cell phone lawfully seized from an arrestee.

       Justice Alito’s point is well-taken and exposes a tick in the development of Fourth

Amendment doctrine. Distinguishing modern smartphones from older, more “traditional”

forms of technology reflects the perspective of a particular point in time—a basis that

makes little sense when the founding principles that underlie the Fourth Amendment do

not contemplate differences between the technological developments of a subsequent era.

“Traditional surveillance techniques” are only traditional from our vantagepoint; the new

technology of a smartphone will seem traditional, perhaps passé, to the next generation.

       Soon, it might not be unusual to see people walking down the street wearing X-ray

goggles—will others have forfeited their expectation of privacy in whatever those goggles

can see? After all, they are in public, where their expectation of privacy is diminished, and

the search image is “observable” thanks to technology in “general public use” (Kyllo, 533

US at 34 [limiting its holding that observations conducted with sense-enhancing

technology may only violate the Fourth Amendment if that “technology . . . [is] not in

general public use”]). When advances in biotechnology enable tracking of our movements

using biometrics that can be constantly read by satellites, will we have forfeited what

expectation of privacy remains in our whereabouts?




                                           - 24 -
                                          - 25 -                                    No. 9

      I offer those questions not to sound a dystopian alarm, but to underscore that when

we apply old Fourth Amendment doctrine to new technologies and develop new rules based

on those changes, we must extract the principle—and not the prior articulation—from the

old doctrine. The map of a flat world worked for a time, but no longer. The rules that

define our right of privacy vis à vis law enforcement must ensure that law enforcement

cannot collect evidence in ways that undermine the privacy rights we want to allow as a

society. Returning again to Justice Harlan’s normative question, the Fourth Amendment

asks not only whether the individual asserting the interest has demonstrated a subjective

expectation of privacy, but also whether that expectation would be accepted as reasonable

by society. Although there may be no principled basis for permitting the police to observe

you in your home through a high-power telescope but not through a heat-sensing infrared

device, or to place cameras on streets everywhere but not use cell site data to track you,

those decisions define the Fourth Amendment’s sweep.

      The majority’s holding here is, in essence, the flat map of the world imposed on a

spherical one. DOC claims to have obtained Mr. Diaz’s telephone calls out of necessity,

just as did the phone company in Carpenter. Mr. Diaz has used those phones out of

necessity to communicate with the outside world, just as the plaintiff in Riley used his

smartphone to participate in everyday modern life. Mr. Diaz’s ability to avoid use of the

prison phone for the eight months of his incarceration is far less realistic than Mr.

Carpenter’s ability to avoid carrying his cellphone during his hours-long crime spree; he

could have used burner phones, as many people do when engaging in criminal activity.

Yet, the government must obtain a warrant to seize the wireless carrier’s records of Mr.

                                          - 25 -
                                             - 26 -                                      No. 9

Carpenter’s movements—movements that, unlike Mr. Diaz’s, were nontestimonial and

observable to the naked eye. Application of the third-party doctrine to internet service

providers, social media sites, wireless phone carriers, credit card companies, medical

insurers and so on would mean that the government may, without a warrant, obtain all that

information and more simply because we have “voluntarily” disclosed it to a third party.

Instead, Fourth Amendment law, and privacy law more generally, must adapt to times in

which we, like Mr. Diaz, have no realistic choice but to divulge information to third parties

for a specific purpose, yet retain our rights against the warrantless seizure of that

information by the government. Sadly, today’s decision is another Olmstead.

         For that reason and for those discussed above, I dissent.

*    *       *    *     *     *    *     *     *      *   *     *    *    *     *    *      *

Order affirmed. Opinion by Judge Feinman. Chief Judge DiFiore and Judges Stein, Fahey
and Garcia concur. Judge Wilson dissents in an opinion in which Judge Rivera concurs.


Decided February 21, 2019




                                             - 26 -
