DRUG DEALER LOSES BID TO SUPPRESS CALL

Phone Statements Admissible, Court Says

By Under the category of "nice try, but ...," convicted drug dealer
Jesus Gonzalez failed to convince the state Supreme Court that his
privacy rights were violated when a New Haven police officer answered
the cellphone he was calling to make a drug deal.

Gonzalez sought to suppress incriminating statements he unwittingly
made to Det. Ottoniel Reyes, who answered the cellphone owned by Luis
Fonseca. The phone was ringing incessantly while Reyes and other
officers were attempting to interview Fonseca about suspected drug
dealing. The officers were conducting the interview near the
intersection of Grand Avenue and Fillmore Street in New Haven the
afternoon of Nov. 25, 2003, after witnessing suspected drug transactions.

Reyes, who speaks fluent Spanish, finally answered Fonseca's
cellphone. Fonseca, who was not in custody at the time, neither
denied, nor gave Reyes permission to answer the phone.

Gonzalez, in Spanish, told the person he thought was Fonseca that he
wanted to "resupply" him. Det. Reyes instructed Gonzalez to meet him
at an intersection two blocks from where Fonseca was being interviewed.

Police at this point released Fonseca, who had no drugs or weapons on
him, but kept his phone.

Minutes later they arrested Gonzalez, who arrived at the appointed
time in a red van in which 25 bags of heroin were concealed in an air
vent. Gonzalez was arrested and convicted of possession of narcotics
with intent to sell.

Gonzalez's lawyer, Omar Williams, argued on appeal that the police
officers obtained Fonseca's cellphone without a warrant. But the
state's highest court ruled that Gonzalez had no jurisdiction to
raise such a claim, and had no privacy rights during a phone
conversation in which he made no attempt to discern the identity of
the person with whom he was speaking.

Citing a 2004 ruling by the U.S. 3rd Circuit Court of Appeals,
Justice Flemming L. Norcott Jr. quoted, "Insofar as the Fourth
Amendment [against unlawful searches and seizures] is concerned, one
party to a telephone conversation assumes the risk that the other
party (a) will permit a third party to eavesdrop on an extension
telephone, for the purpose of communicating what he heard to police
or, (b) may be a police informer who will relate or record or
transmit a conversation to the authorities or, (c) may record the
conversation and deliberately turn it over."

"In the present case," Norcott wrote, "the officers did not offend
the Fourth Amendment simply because they were not the intended
recipients of the call."

The court ruled that Gonzalez and anyone else who voluntarily places
a call and makes no attempt to identify the person who answers it
have no expectation of privacy. This rule applies, the justices
noted, even in instances when the police have no warrant or other
authority to access the phone. A challenge on the legality of their
use of the phones rests solely with the person from whom they took the phone.