The Third Court of Appeals recently wrote an opinion that should be used by every officer in the state who has a back seat to a patrol car:

http://www.3rdcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=10540

As we already know, defendants can't help themselves when it comes to talking. Despite constant police television shows explaining that silence kills an investigation, the criminal keeps on talking. This case takes that concept a step farther by upholding the videorecording of spontaneous statements made by a lone defendant sitting in the back seat of a patrol car. He just couldn't help himself.

Do you have a good example you have heard?

A few years ago I had a narcotics officer pull over two young men in a rental car headed back to Louisiana down I-10, After getting consent to search, he let the two guys sit in the back of his patrol car (it was a cold winter night). The search revealed nothing and the lads went on their way.

Before getting back on the road, the officer watched the tape he had made of the fruitless search. His in-car microphone picked up the conversation between the two in which they kept making fun of the officer's search. "Man, he ain't never gonna find the blow in the bear," they laughed.

Needless to say, they were perplexed when a new traffic stop was initiated, a new consent easily obtained by a different officer, and a substantial amount of cocaine immediately recovered from a stuffed animal in the back seat.

We had undercover drug officers take a delivery of drugs and then bust the driver and passenger for delivery. They put the defendants in the back seat of the patrol car and listened in to their conversation. It saved them time searching the car as one defendant told the other where she hid the drugs when she saw the cops coming to make a bust.

When the officers found the drugs, they held the baggie in the air, faced the defendants who were watching from the patrol car, and mouthed: Thank you.

I had one about a year ago where two guys and a girl were stopped in a vehicle that contained about 200 grams of cocaine. Of course, no one knew it was in the car. The were all taken to jail and the two guys placed in an interrogation room and left alone. A video camera was conspicuously mounted on the wall of the interview room. The two guys began making all sorts of incriminating statements such as "We were so stupid," "Why didn't we take backroads," and "I'm not going to cooperate, I'm just going to be strong and do my time." I actually drew a supression motion from one of the defendants claiming that the video was the product of an illegal surreptitious interception of an electronic communication and that he had an expectation of privacy in the interview room. The judge rightly held that there was no expectation of privacy under these circumstances and there's nothing surreptitious about a video camera staring you in the face. They all plead guilty.

We had a case where a defendant was arrested on warrants out of a traffic stop, his wife was arrested for PI. While the officer was seraching the car, the man convinced his wife to beat him up - you could hear the hits on the camera - then he told the officers he would file for police brutality. At least he was being responsible because he was sober and he was driving his wife home.

When I prosecuted in Chambers Co., the S/O and the Task Force routinely secretly taped conversations from the back of their police cars. Almost without exception, if there were 2 or more suspects sitting in the back seat during a search, they would make highly incriminating statements. I've tried to get officers in other counties to do the same thing, but with little success.

I have found that many officers are resistent to this sort of investigatory technique because of years of misinformation arising from the Miranda decision. Too many law enforcement agencies teach that arrest means the end of taking any statements from a defendant absent Miranda warnings and taped or written confessions. Nonsense.

In the case of a back seat of a patrol car, yes, indeed, the defendant is in custody. And, no, there aren't any warnings on the taped confession. But the confession is not the result of any interrogation. It is the result of the defendant's inability to control his own mouth.

So, please continue to educate your officers. Once they see the results and hear the legal explanation, they will come on board.

DPS policy calls for a trooper to tell the defendant that he is being recorded.

I even had to send a memo to a local DPS office telling the sargeant that surreptitious taping was not only legal, but recommended. He was getting pressure from his superiors about the use of in-car microphones. (Terry, this was in the aforementioned Chambers County.)

Until law enforcement management recognizes the value of the tapes, we can't expect the individual officers to use the relatively simple technology.

Someone better explain that policy to the DPS troopers in my county, because I get my best "backseat videos" from them.

One of my favorites was a middle aged drunk who had his elderly mother in the car with him. The trooper put her in the front seat of his car, since it was a hot day and the air conditioning was running. When the defendant was put in the back of the patrol car, he explained to his mother, in a very loud and only slightly slurred voice, that this was all part of a "racket" between the county and the wrecker drivers, and that the county recieved a kickback when a car was towed. I enjoyed playing that tape for the racketeers...I mean jurors. :-)

I had a fun case where the 2 defendants were in the back seat while the officer was searching the car. The man says, "So where's the sh--?" and the woman replies, "The sh--'s between my f---ing legs, it's between my f---ing legs!" So lo and behold, when the woman is booked in at the jail, they find about 3 grams of cocaine in her underwear.

I had a drunk guy by himself on video saying directly into the camera, "Thank you, Nancy Reagan!" I have no idea what he was thanking her for. She was not present at the scene. Maybe because "just say no" hadn't worked for this defendant.

Betty Marshall argued a case before the CCA last month where two burglary defendants were taken to jail and placed in separate interrogation rooms. Defendant A tells officer he would like to talk to Defendant B in private. Officer says "Okay," gets Defendant B, brings him into the room with Defendant A, then secretly tapes their incriminating conversation. The San Antonio CA busted it because they thought the officer was deceitful. The case Betty argued is for Defendant B, and should be a slam dunk, because B had no reason to believe the conversation would be private. Defendant A's case is set for argument in the future, and should be more interesting.