POCS w/ intent to deliver

issue for suppression hearing in morning:

Deputy has already arrested defendant for POCS and POM. While inventorying car, def's cell phone rings, Deputy answers it, "hello". Caller, "where are you". Deputy, "I'm going to the jail house". Caller, "where's my crack"

First impression and checking cases it looks like no way it comes in. Anyone know differently?

Thanks

Wasn't that thoughtful of the deputy to provide
'receptionist' services to the 'otherwise encumbered' defendant. Just all in a days work! As a side thought, did he tell the caller where to find his crack ?

I'm not clear on what objection you are worried about.

Let's assume first that you get an illegal search objection. Your defendant should not have standing to object to a conversation that he wasn't in. U.S. v. Fernandez-Roque, 107 F.3d 868 at *1 (4th Cir. 1997) (Table) ("While a participant in a conversation has legitimate expectations of privacy concerning telephonic transmissions,Fernandez-Roque did not have a reasonable expectation of privacy in this phone call because the only participants in the telephone conversation were the police officer and the caller. Fernandez-Roque cannot claim an expectation of privacy in the words uttered by another because Fourth Amendment rights are personal and may not be vicariously asserted.FN6 Therefore, the Fourth Amendment was not violated by a police officer, who was lawfully in the motel room, answering the phone and taking the message, 'This is Jorge; tell him I'm on the way.'"); see also People v. Lucas, 470 N.W.2d 460, 473
(Mich.App. 1991), appeal denied 478 N.W.2d 165 (Mich. 1991) ("Defendant has no reasonable expectation of privacy with regard to conversations in which he did not participate.").

Even the caller might not have an objection. See State v. Goucher, 881 P.2d 210, 213 (Wash. 1994) ("[Defendant] had no legitimate expectation of privacy in his telephone conversation with the agents. He assumed the risk of exposure when he spoke freely with strangers.").
Alternatively, you might have an exigent circumstances argument. People v. Au, No. H022657, 2002 WL 31195431 (Cal.App. 6 Dist. October 2, 2002) ("exigent circumstances existed. Those circumstances justified Officer Pham's decision to answer the ringing cell phone without first obtaining a warrant").

If you get an objection based upon the federal wiretap statute, you could cite People v. Rodriguez, 13 A.D.3d 257, 786 N.Y.S.2d 175 (N.Y.A.D. 1 Dept. 2004) ("We reject defendant's argument that the officer's actions in answering the cell phone and conversing with defendant constituted unlawful warrantless interception of a telephone communication."); see also Com. v. Vasquez, 20 Mass.L.Rptr. 319, 2005 WL 3642768
(Mass.Super. 2005) (discussing hearsay issues).

see also private topic

The officer merely misunderstood the question asked by the caller. It was a prank call, and the correct answer is, "Between your cheeks." Just an update on the old Prince Albert in a Can prank call.

Which leads us back to an old thread.

Or, you can go back to one of Jane's shortest thread.

Or, you can get Jay Leno's take on the issue by watching this clip from the Tonight Show.

[This message was edited by John Bradley on 08-25-06 at .]

He could've said "Dave's not here, man."

Statement against "penile" interest?

When I prosecuted drug cases on the border I had a case just like that. D1 was being booked in for over 50kg of marijuana when his cell phone rang. Investigator picks it up and caller says "I've got your package." Investigator, helpful as ever, arranges to pick up the package. Turns out to be over 200g of black tar heroin. Got a whole other felony conviction out of that. D1 and D2 got charged with that. Nobody challenged the investigator's picking up the phone. Hate to admit how much luck, divine intervention, or whatever you want to call it, has to do with our job.

Ernie, I know which court you weren't in on that!

If memory serves me correctly, it was in front of Judge William W. Justice. (BTW, It's Edna, not Ernie.)

Edna

Disregard all after Ernie

Edna now has a new nickname, courtesy of Gordon.

But you know, Ernie is not as bad as what some have called me. A defense attorney once said I was violating the pig rule during closing argument on a ch 59 forfeiture. So, every once in a while my co workers torture me by reminding me & calling me a pig.

Then there was the daughter of a 72 year old child molester we sent to prison. After the trial, she thanked me for killing her father, so now my co-workers tease me and call me a daddy killer. I give them hell back, though.

Big DUH on my part, so note to self: next time when search on Lexis - don't just search Texas Crim, use the TX and Fed choice.

Thanks David, printed off cases you cited when got to office and used to get that point of suppression denied and the cell phone call admitted.

We got done today - guilty POCS w/ intent - punishment on Monday.

Will Edna's new nickname be "Ernie" or will Gordon's

quote:

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Originally posted by Paul Houston:
Will Edna's new nickname be "Ernie" or will Gordon's

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Right you are, Paul. My mistake, thanks for correcting same.

You guys start calling me Ernie and I am going to get sooooo confused.

okay, Ernie. Or maybe you would prefer Ernest or Ern.

Anything you say, Ernie.

Does that make Greg, Bert?

It is not hearsay, it is not offered for the truth of the matter asserted, but for the affect on the officer in then performing a search of the suspect's vehicle.