   OFPlCE OF THE ATTORNEY   GENERAL.   STATE OF TEXAS

   JOHN CORNYN




                                                  April 12,200O



The Honorable Michael A. Sheppard                         Opinion No. K-0208
District Attorney
24th Judicial District                                    Re: Whether a police offtcer who secretly
307 North Gonzales                                        records or broadcasts asuspect’s conversationin
Cuero, Texas 77954                                        a police car violates section 16.02 of the Penal
                                                          Code (RQ-0145-JC)


Dear Mr. Sheppard:

        You have requested our opinion as to whether a police officer who secretly records or
broadcasts a suspect’s conversation in a police car violates section 16.02 of the Penal Code. For
reasons that will appear below, we conclude that the officer does not.

       You provide the following context for your request:

                         Increasingly, police agencies are equipping their vehicles with
                dash-mounted video equipment for video taping criminal scenes that
                occur in front of the police car. These systems typically have the
                ability to also record conversations within the car. Some can
                broadcast any conversations that occur within the patrol car so that
                the officer, several yards away, can hear on his radio what is being
                said by the occupants. This equipment can be quietly turned on, so
                that the occupants of the car are unaware that everything they say is
                being recorded or broadcasted. Additionally, some agencies have
                opted to simply equip their patrol cars with a hidden tape or mini-disc
                recorder, which also has the ability to secretly record any
                conversations that take place in the police car.

                        A tactic which is evolving, is to place     two or three subjects in
                the back seat of a patrol car equipped with         such a radio/recording
                device, and then to find some excuse to leave      the subjects alone in the
                patrol car, after quietly turning on the device.    This is most commonly
                used during road-side searches of vehicles.

                        This tactic frequently results in recording conversations         in
                 which the subjects discuss where they have hidden contraband             in
The Honorable Michael A. Sheppard      - Page 2      (JC-0208)




              their vehicle, as well as other statements pointing to their knowing
              participation in a criminal enterprise. Besides being useful in locating
              hidden contraband, this evidence can also be used in court to prove
              criminal knowledge and intent.

                        The radio broadcasting of the subjects’ conversation can tip-
               off the searching officer to any plans the subjects in his patrol car
               may have to attack him when he returns to the patrol car or the
               presence of weapons they might have on them. Sometimes drug
               smuggling operations consist of a vehicle hauling the contraband,
               with a second vehicle following behind, with armed guards or
               “enforcers.”     The secret broadcasting      of the search subjects’
               conversations will sometimes reveal this information. In any of these
               scenarios the broadcast of the subjects’ conversation provides
               significant additional safety to the listening officer.

Letter horn Honorable Michael A. Sheppard, District Attorney, 24th Judicial District, to Opinion
Committee, Office ofthe Attorney General, at l-2 (Nov. 8,1999) (on file with Opinion Committee).

       Section 16.02 of the Penal Code provides, in relevant part:

                    (a) In this section, “covert entry,” “comnnmication        common
               carrier,” “contents, ” “electronic, mechanical, or other         device,”
               “intercept,”     “investigative      or law enforcement         officer,”
               “oral communication,”          “electronic communication,”       “readily
               accessible to the general public,” and “wire communication”      have the
               meanings given those terms in Article 18.20, Code of            Criminal
               Procedure.

                   (b) A person commits an offense if he:

                        (1) intentionally intercepts, endeavors to intercept, or procures
               another person to intercept or endeavor to intercept a wire, oral, or
               electronic communication.

TEX.PEN.CODE ANN. 5 16.02(a), (b)(l) (Vernon Supp. 2000). “Oral communication”           is defined in
article 18.20 of the Code of Criminal Procedure, as “an oral communication uttered by a person
exhibiting an expectation that the communication is not subject to interception under circumstances
justifying that expectation.” TEX.CODE GRIM.PROC.ANN. art. 18.20, 4 l(2) (Vernon Supp. 2000).
 We may assume that, under the circumstances you describe, the suspect exhibits “an expectation that
 the communication is not subject to interception.” Thus, the key inquiry is whether the suspect’s
 expectation occurs “under circumstances justifying that expectation.”
The Honorable Michael A. Sheppard       - Page 3      (~~-0208)




        No Texas court has construed the relevant provision of the Penal Code, but numerous other
courts, both state and federal, have considered similar statutes. As long ago as 1972, a court in
California held that, where a defendant is seated in a police patrol car, “society is [not] prepared to
recognize his expectation ofprivacy to have been reasonable.” People v. Todd, 102 Cal. Rptr. 539,
541 (Cal. Ct. App. 1972). Prior to July, 1984, at least two other state courts reached a similar
conclusion. See State Y.Lucero, 628 P.2d 696,698 (N.M. Ct. App. 198 1) (“When they sat in Officer
Heshley’s patrol car, these suspects had no reasonable expectation ofprivacy.“); People v. Marland,
355 N.W.2d 378,384 (Mich. Ct. App. 1984) (suspects had no reasonable right to expect privacy in
the back seat of a police car). Then, in July 1984, the United States Supreme Court held that a prison
inmate has no reasonable expectation of privacy in his prison cell entitling him to Fourth
Amendment protection. See Hudson V.Palmer, 468 U.S. 5 17,526 (1984) (“[Slociety is not prepared
to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his
prison cell[,] and.    accordingly, the Fourth Amendment proscription against unreasonable searches
does not apply within the confines of a prison cell.“).

         Subsequent to Palmer, both state and federal courts have consistently held that a suspect
seated in a police car does not have an expectation of privacy “that society is willing to recognize
as reasonable.” United States v. McKinnon, 985 F.2d 525,527 (11 th Cir. 1993). In McKinnon, the
defendant argued that “the front seat of a police car is equivalent to the officer’s office, but the back
seat is the office of the arrestee.” Id. The government countered that “the back seat of a police car
is equivalent to a jail.” Id. The court found that, whether pre-arrest or post-arrest, a person does “not
have a reasonable or justifiable expectation of privacy for conversations he held while seated in the
back seat area of a police car.” Id. at 528. In United States v. Clark, 22 F.3d 799 (8th Cir. 1994),
another federal court, likewise holding that a suspect has no reasonable expectation ofprivacy while
seated in a police car, provided the following rationale:

                A marked police car is owned and operated by the state for the
                express purpose of ferreting out crime. It is essentially the trooper’s
                offtce, and is frequently used as a temporary jail for housing and
                transporting arrestees and suspects. The general public has no reason
                to frequent the back seat of a patrol car, or to believe that it is a
                sanctuary for private discussions.    A police car is not the kind of
                public place, like a phone booth where a person should be able to
                reasonably expect that his conversation will not be monitored.        In
                other words, allowing police to record statements made by
                 individuals seated inside a patrol car does not intrude upon privacy
                 and freedom to such an extent that it could be regarded as
                 inconsistent with the aims of a free and open society.

 Clark. 22 F.3d at 801-02.

        State court decisions subsequent to Palmer reach the same conclusion. See, e.g., State Y.
 Hussey, 469 So. 2d 346, 351 (La. Ct. App. 1985); In re K.F. v. State, 797 P.2d 1006 (Okla. Crim.
The Honorable   Michael A. Sheppard     - Page 4      (JC-0208)




App. 1990). In State Y. Smith, 641 So. 2d 849 (Fla. 1994), the defendant, Smith, was a passenger
in a vehicle that was pulled over by an officer for swerving erratically. The driver consented to the
officer’s request to search the car, and “for safety purposes, the officer requested the driver and
Smith to sit in the back seat ofthe police car during the search ofthe car.” Smith, 641 So. 2d at 850.
The officer found cocaine in the glove compartment and arrested Smith and the driver. During the
search, the officer secretly taped a conversation between Smith and the driver that “included a
discussion concerning whether the officer had found the package in the car.” Id. Smith moved to
suppress the tape recording on the basis of a Florida statute with language virtually identical to that
of section 16.02. See id. at 850-51 n.1. The court held that Smith had “no reasonable expectation
of privacy [while seated] in a police car.” Id. at 852. The court concluded that the reasonableness
of the expectation does not depend upon the status of the person engaging in the conversation. See
id. at 852.

        In our opinion, these cases are persuasive, and they inextricably point to the conclusion that
a statement made by a person seated in a police car does not occur under circumstances justifying
the expectation of privacy. Consequently, such a statement is not an “oral communication”            as
defined in article 18.20 of the Code of Criminal Procedure. As a result, a police offtcer who secretly
records or broadcasts the conversation of an individual seated in a police vehicle does not violate
section 16.02 of the Penal Code.
The Honorable Michael A. Sheppard     - Page 5     (Jc-0208)




                                      SUMMARY

                       A police officer who secretly records or broadcasts the
               conversation of a person seated in a police vehicle does not violate
               section 16.02 of the Penal Code.




                                            Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee
