Colorado Criminal Law – Parties to a Phone Call – Phone Calls Made From a Jail or Prison*
*By Colorado Criminal Defense Lawyer – H. Michael Steinberg
The Law in Colorado On Evidence of Intercepted Phone Calls
A party to an intercepted telephone call may move to suppress statements contained in the call if the call was unlawfully intercepted. § 16-15-102(10).
Where one party consents to interception of a telephone call, the call is not “unlawfully” intercepted, and statements contained in the call should not be suppressed.
Colorado Law – 18-9-303(1)(a), C.R.S. 2010 – a person commits unlawful wiretapping if the person knowingly records a telephone communication without consent of at least one party to the call.
When and How This Arises During a Colorado Criminal Case
At a hearing on a defendant’s motion to suppress (to attempt to exclude evidence of a phone call he made from the jail), correctional officers typically will testify that a recording, which is played to inmates on the telephone handset before every telephone call placed by a prisoner using that telephone instructs the inmate that the call would be recorded.
Typically at the jail orientation, prisoners – before they are allowed to make phone calls – must agree to read and abide by jail house rules which state that outgoing telephone calls would be recorded. In addition most jails have signs posted on the wall by the phones that specifically state that all phone calls are recorded and may later be used against the inmate.
A prison inmate is therefore required to permit monitoring of telephone calls as a condition of using prison telephones, … the prisoner impliedly consents if he has notice of monitoring and still places calls on the prison telephones. United States v. Hammond, 286 F.3d 189, 193 (4th Cir. 2002).
Voluntariness of Consent
The argument that an inmate does not consent because he/she has no choice but to use the telephones at the jail to make the call …. while the choice may not be an easy one, the law does not permit this circumstances to render the defendant’s consent to the rules involuntary.