COURT REVERSAL ALLOWS USE OF JAILHOUSE PHONE CALLS AS EVIDENCE

MADISON - Inmates who use a jailhouse phone to talk about their
alleged crimes can expect to have those incriminating statements used
against them, a state appeals court ruled Wednesday in a Fond du Lac
County case.

The decision stirred emotion on each side as Assistant District
Attorney Scot Mortier said it clarifies the use of a valuable tool for
prosecutors state-wide, but a state public defender said it should be
further appealed as it puts "Big Brother" on watch.

In reversing a decision by Circuit Judge Robert Wirtz, the District 2
Court of Appeals restored marijuana and cocaine evidence police found
in Deonte D. Riley's car after he called a friend from jail and told
them to move his car before police could find drugs they had
originally overlooked.

Riley, 25, of Milwaukee, was detained on a probation hold after being
arrested for speeding on March 25, 2004. A sheriff's deputy smelled
marijuana while talking to Riley and located a small amount in Riley's
car.

While in jail, Riley phoned the friend about the car and drugs,
according to the appeals decision.

Tipped that someone was breaking into a parked car, police talked to a
man who said a friend of Riley's told him to move the car to prevent
police from finding drugs. A search of the car recovered cocaine and
more marijuana. A recording of Riley's call from jail supported the
man's statement.

Riley was then charged with possession with the intent to distribute
less than 20 grams of marijuana and possession with the intent to
distribute between 15 and 40 grams of cocaine.

Adequate notice

Although Wirtz suppressed Riley's recorded phone statements, the state
appealed, arguing that a message that precedes an outgoing phone call
gives adequate notice to inmates that their calls may be recorded.
Because Riley used the phone after the message was played, he
consented to having his conversation recorded, the state argued.

Riley's attorney, William Schmaal, argued that Riley didn't give his
consent because there was no proof that Riley heard the warning, and a
warning that the call "may" be recorded wasn't as definite as saying
the call "will" be recorded.

In deciding the case, the appeals court concluded that the right to
privacy of inmates using a jailhouse phone to call non-attorneys is
trumped by the jail's need for safety and security.

"We therefore hold that as long as an inmate is given meaningful
notice that his or her phone calls over institutional phones are
subject to surveillance, his or her decision to engage in
conversations over these phones implies consent to such surveillance,"
wrote Judge Daniel Anderson in the 12-page decision.

Decision of statewide interest

Mortier said the "common sense" decision would be of statewide
interest because it may settle an area of law that stems from
Watergate era concerns that authorities overstepped the bounds of
lawful public surveillance.

"This wasn't a case of police overstepping their bounds but a case
where a defendant used a law enforcement phone to try to get away with
a crime," said Mortier, who called the situation "abhorrent."

Since it's not uncommon for inmates to make incriminating statements
on a jailhouse phone, said Mortier, it was more "incredible (that)
someone would think after getting a warning that their conversation
may be taped, would have the gall to challenge it as unfair."

Schmaal said it was "galling" for Mortier to say that a phone
announcement was all that authorities needed to record and use
someone's conversation.

"More important, under the appeals court's theory, an announcement
that a call may be recorded is equivalent to proving that person
consents to its recording is outrageous," he said.

In theory, the Fond du Lac County sheriff could record every phone
conservation of every person if he could persuade the telephone
company to begin each call with a warning that the call would be
recorded, Schmaal said.

The decision has "serious legal flaws" and should be reviewed by the
Wisconsin Supreme Court as it improperly rewrites the state's
electronic surveillance statute, which doesn't differentiate between
inmate and non-inmate, Schmaal said.

"As of today, August 10, Big Brother is now watching in Wisconsin and
that's no joke," said Schmaal, a veteran appellate attorney.

Unless further appealed, Riley's case returns to Wirtz for
prosecution. If convicted, Riley faces maximum penalties of 10 years
in prison on the cocaine charge and 1 1/2 years on the marijuana offense.