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Arrested & Taken to Jail: Be Careful About What You Say Over the Jail Phone, You Are Being Recorded

Posted by on in Florida Criminal Law
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Having handled hundreds of criminal cases as a defense attorney in Gainesville, Florida, for more than 25 years, I’ve represented many individuals who literally ruined their potential legal or factual defense by making statements on the phone from the jail.  The purpose of this blog is to spread the word that everything one says from a jail house phone is being recorded.  Courts in Florida have consistently held that one has no expectation of privacy when speaking on the phone at a jail facility, thus recorded jail phone conversations are admissible at trial in criminal cases.

A typical arrest scenario in Gainesville, Florida is a follows: A University of Florida student goes out to enjoy an evening with friends at a local bar or club.  While driving home, the student is pulled over for some alleged minor traffic infraction.  The police officer claims that the student has an odor of an alcoholic beverage emitting from their person, bloodshot eyes and slurred speech.  Suddenly the student is asked to do tricks like the “one leg stand” on the side of a road in the middle of the night.  Ultimately, the student is arrested for DUI, taken to jail and booked in for the rest of the night while he/she waits for a first appearance hearing in front of a Judge. 

At some point during the booking process at the jail, the student will be offered a chance to use the phone.  Often the first phone call is to a parent or friend.  Inevitably the person called will ask, “What happened?”  The response to that question is crucial.  The arrested person needs to say “I can’t talk about what happened right now.”  It’s not unusual for a parent or friend to ask “How much did you have to drink?”  Don’t answer that question or any other question pertaining to the facts of the case.    The reason is this: jail phone calls are routinely recorded and court’s in Florida have consistently held that such recordings are admissible as evidence in criminal trials.

The Florida Supreme Court has held that there is no expectation of privacy when phone calls are made from a jail, thus recorded statements made in jail phone conversations are admissible as evidence in criminal cases.   Jackson v State of Florida, 18 So.3d 1016 (Fla. 2009)    Even jail phone conversations between defendants and attorneys may be recorded as the Florida Supreme Court has held that “an inmate has no reasonable expectation of privacy in a telephone communication from jail ...”.  McWatters v State, 36 So.3d 613, 635 (Fla. 2010)   Further, in Cuomo v State, one Florida appellate court ruled that it was permissible to record the visitation between a mother and son at a jail facility and use such recordings as evidence because there was no reasonable expectation of privacy at a jail facility.

So the bottom line here is clear, if one is  arrested, one has virtually no expectation of privacy in any statement that one makes, even when the police are not physically present.  From the moment one is placed in the back of a police car, one must realize that every statement made could be recorded and used as evidence.  See State v Smith, 641 So.2d 849 (Fla. 1994), where the Florida Supreme Court held that a recorded conversation between two individuals detained in the back of police car was admissible as evidence, even though a police officer was not physically present, because there is no expectation of privacy inside a law enforcement vehicle.

When a friend or family member calls from the jail be aware that the conversation is being recorded.  Don’t let your friend or family member talk about the facts and circumstances that led to their arrest.  Don’t ask questions about what happened.   Avoid all conversations that might lead to disclosures pertaining to all events that led to the arrest.  Information about the arrest should be strictly limited to what crime one is charged with and what jail one is being detained in.

In Gainesville, Florida, prosecutors are able to sit at their desks and use their computers (by a simple point and click) to listen to every phone conversation an arrested person made from the jail.  It is not uncommon for prosecutors to say that they will not even make an offer to resolve a case until they have listened to all the phone calls that the accused person made from the jail.  Prosecutors are well aware that jail phone calls sometimes contain factual admissions that will strengthen their case.  Be wise, when arrested, don’t talk about the facts or circumstances that led to the arrest, even if one is innocent of the crime charged ... and especially if one is guilty.

Michael Buchanan is a practicing criminal defense attorney in Gainesville, Florida, with more than 25 years experience defending people accused of criminal misconduct. He is a former president of the Eighth Judicial Circuit chapter of the Florida Association of Criminal Defense Lawyers. He is a member of the Florida Association of Criminal Defense Lawyers and the National Association of Criminal Defense Lawyers. Read detailed professional biography here.