Interrogation Room Monitoring
It is not uncommon for suspects left alone in an interrogation room to talk to themselves out loud, or, if they have a cell phone, to call others. Depending upon the circumstances, the defendant may seek suppression of those statements on Miranda grounds, right to counsel grounds, privacy grounds, CPL 60.45(3) (DCJS Standards for Video-recording of Interrogations) and/or eavesdropping grounds.
A. Miranda
There are no New York cases that find a Miranda violation when a suspect who has not invoked counsel talks to himself prior to or after receiving Miranda warnings. Such statements would usually be considered spontaneous, unless the suspect invoked silence and could somehow convince a court that the police failed to scrupulously honor that invocation.
B. Right to Counsel
There is Appellate Division case law going both ways on whether a suspect’s statements made to himself while alone in an interrogation room must be suppressed if made in the wake of a valid invocation of counsel.
In the case where suppression was ordered,1 the Court did not cite authority for that holding, but it is likely that the statements could not be deemed spontaneous because they were induced by the unlawful interrogation in violation of the suspect’s right to counsel that preceded them.
In the case where suppression was denied, the suspect invoked his right to counsel, and thereafter a detective “unprompted, informed defendant that he was being held on a ‘murder investigation.’”2 The suspect responded, “[h]ow can it be murder when I was trying to defend myself,” and “[h]e pulled the gun on me and I took the gun away.” The trial court correctly suppressed those statements, not because the defendant was “interrogated,” but because they were the product of a right-to-counsel violation. Even though only “several minutes” passed, the Court found admissible the statements defendant made to himself “essentially repeating what he had said to the detective and adding ‘I’m not going to let anybody just kill me.’” Despite the proximity in time of both statements, the Court found the second “not the result of inducement” by the unlawful questioning that preceded it.
C. Privacy
In order to have a chance at suppression of utterances made while alone in an interrogation room, the suspect must prove that he was unaware that audio recording was ongoing in that microphones were not apparent and he was not told that a recording was taking place. If the suspect can establish that fact, he should be able to satisfy the element of a subjective expectation of privacy. The next question will be whether he is able to demonstrate an objectively reasonable expectation of privacy. In doing so, he may find some support in the 2017 ruling of the U.S. District Court for the Northern District of Illinois in U.S. v. Llufrio.3 There, the Court distinguished a police car from an interrogation room as far as the reasonableness of an expectation of privacy based upon a previous Seventh Circuit ruling.4 The Court also found that “luring arrestees into ‘a false sense of security’ in a locked room with no law enforcement officers and with no visible working audio-recording device—but with a concealed recording device—suggests that, in such a room, there is a reasonable expectation of privacy.”5 Relying on Llufrio, a New York trial court has ruled that a suspect’s statements made during a telephone call to friends while detained in an interrogation room were inadmissible since there was no indication that the defendant was aware of the existence of audio-video recording equipment.6
D. The D.C.J.S. Standards
Criminal Procedure Law § 60.45(3)(e) provides as follows: “Video recording as required by this section shall be conducted in accordance with standards established by rule of the Division of Criminal Justice Services.” The Family Court Act contains a similar provision relating to the interrogation of juveniles.7 In June of 2021, the New York State Division of Criminal Justice Services published the third edition of those standards,8 which appear as an appendix in an endnote to Chapter 16.
Unlike the statute, which only requires video recording of the warnings and the interrogation, the Standards provide that the entire encounter between the interrogating police and the suspect be videorecorded from the time the suspect enters the room until he leaves.9
Also, the Standards appear to create a statutory basis for suppression because they provide: “To legally record a conversation, at least one party must be aware of, and have consented to, the recording.”10 This language sets up a two-pronged test: awareness and consent. This is in marked contrast to implied consent under case law.11
E. Eavesdropping
If the suspect is left alone in the room and is not aware that a video-recoding system is present, then the recordation of his statements to himself or statements made to others via a cell phone may be deemed the product of unlawful eavesdropping. The Standards so provide.12
Hon. John Brunetti, a judge of the Oneida Indian Nation Court, is also a retired judge of the Court of Claims and author of New York Confessions.
The text of this article will be published in the next edition of New York Confessions, published by LexisNexis Matthew Bender, reprinted with permission.
Endnotes
2 People v. Bumpars, 178 A.D.3d 1379, 116 N.Y.S.3d 838 (4th Dep’t 2019).
3 U.S. v. Llufrio, 237 F. Supp. 3d 735, 737–46 (N.D. Ill. 2017).
6 People v. Williams, 74 Misc.3d 310 (Sup. Ct. Kings County 2021).
