Amicus Curiae Brief — Emmanuel Diaz, Petitioner v. New York

No. 18-9359

IN THE

Supreme Court of the United States

————

EMMANUEL DIAZ,

v.

Petitioner,

PEOPLE OF THE STATE OF NEW YORK,

Respondent.

————

On Petition for a Writ of Certiorari to the

New York State Court of Appeals

————

BRIEF OF AMICI CURIAE

LEGAL AID SOCIETY IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

————

LOUIS SARTORI

STEVEN B. WASSERMAN

THE LEGAL AID SOCIETY

199 Water Street

New York, NY 10038

(212) 577-3300

LSSartori@legal-aid.org

SWasserman@legal-aid.org

ILANA H. EISENSTEIN

Counsel of Record

DLA PIPER LLP (US)

One Liberty Place

1650 Market Street

Suite 5000

Philadelphia, PA 19103-7300

(215) 656-3300

ilana.eisenstein@

us.dlapiper.com

JEFFREY D. ROTENBERG

MARC A. SILVERMAN

KATHARINE SUOMINEN

DLA PIPER LLP (US)

1251 Avenue of the Americas

27th Fl.

New York, NY 10020-1104

(212) 335-4828

jeffrey.rotenberg@

us.dlapiper.com

marc.silverman@

us.dlapiper.com

katharine.suominen@

us.dlapiper.com

Counsel for Amici Curiae

June 19, 2019

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

TABLE OF CONTENTS

Page

INTERESTS OF AMICI CURIAE ......................

1

SUMMARY OF ARGUMENT .............................

1

ARGUMENT ........................................................

7

I. RIKERS IS AN ISOLATED PRISON

THAT

LEAVES

PRETRIAL

DETAINEES WITH NO CHOICE BUT

TO USE ITS MONITORED PHONE

LINES........................................................

7

II. RIKERS’ PRACTICE OF HARVESTING

ALL PRETRIAL DETAINEE PHONE

CALLS AND PROVIDING THEM

WHOLESALE TO PROSECUTORS IS

UNCONSTITUTIONAL ...........................

10

A. Petitioner Had a Reasonable Expectation of Privacy in His Phone Calls...

10

B. Petitioner’s Detention Did Not Strip

Petitioner

of

His

Reasonable

Expectation of Privacy, Even Under

the Third-Party Doctrine ....................

13

C. Even if the Third-Party Doctrine

Applies, Petitioner’s Scope of Consent

Was Limited to Allowing DOC Review

for Security Purposes of the Prison—

Not by the New York Attorney

General for Prosecution.......................

17

CONCLUSION ....................................................

22

(i)

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Baldwin v. New York,

399 U.S. 66 (1970) .....................................

1

Bell v. Wolfish,

441 U.S. 520 (1979) ...................................

11

Birchfield v. North Dakota,

136 S. Ct. 2160 (2016) ...............................

18

Blum v. Stenson,

465 U.S. 886 (1984) ...................................

1

Blum v. Yaretsky,

457 U.S. 991 (1982) ...................................

1

Carpenter v. United States,

138 S. Ct. 2206 (2019) ..............................passim

Cruz v. New York,

481 U.S. 186 (1987) ...................................

1

Fay v. Noia,

372 U.S. 391 (1963) ...................................

1

Florida v. Jimeno,

500 U.S. 248 (1991) ...................................

18

Illinois v. McArthur,

531 U.S. 326 (2001) ...................................

11

Katz v. United States,

389 U.S. 347 (1967) ................................... 16, 17

Maryland v. King,

569 U.S. 435 (2013) ....................... 10, 11, 12, 18

Olmstead v. United States,

277 U.S. 438 (1928) ...................................

16

iii

TABLE OF AUTHORITIES—Continued

Page(s)

People v. Diaz,

122 N.E.3d 61 (N.Y. 2019) .......................passim

53 N.Y.S.3d 94 (N.Y. App. Div. 2017) ......

6

People v. Johnson,

51 N.E.3d 547 (N.Y. 2016) ...................... 8, 9, 19

Riley v. California,

573 U.S. 373 (2014) ................................... 10, 15

Skinner v. Railway Labor Execs.’ Ass’n,

489 U.S. 602 (1989) ...................................

12

Smith v. Maryland,

442 U.S. 735 (1979) ................................... 4, 14

Turner v. Safley,

482 U.S. 78 (1987) .....................................

20

United States v. Cohen,

796 F.2d 20 (2d Cir. 1986) ........................ 20, 21

United States v. Kras,

409 U.S. 434 (1973) ...................................

1

United States v. Miller,

425 U.S. 435 (1976) ...................................

14

United States v. Salerno,

481 U.S. 739 (1987) ...................................

20

Vernonia Sch. Dist. 47J v. Acton,

515 U.S. 646 (1995) ...................................

12

Walter v. United States,

447 U.S. 649 (1980) ................................... 18, 19

Wyoming v. Houghton,

526 U.S. 295 (1999) ...................................

10

iv

TABLE OF AUTHORITIES—Continued

STATUTE

Page(s)

Omnibus Crime Control and Safe Streets

Act of 1968, Pub. L. No. 90-351,

82 Stat. 197 (18 U.S.C. §§ 2510-22) .........

17

CONSTITUTION

U.S. Const. amend. IV .................................passim

RULES

Sup. Ct. R.:

Rule 37.3(a) ...................................................

1

Rule 37.6 .......................................................

1

MISCELLANEOUS

Bureau of Prisons Disclosure of Recorded

Inmate Telephone Conversations, 21 Op.

O.L.C. 11 (1997), https://www.justice.

gov/file/19876/download............................

13

Fed. Bureau of Prisons, Inmate Telephone

Regulations, Program Statement No.

5264.08, § 540.100 (corrected Feb. 11,

2008), https://www.bop.gov/policy/progs

tat/5264_008.pdf. ......................................

13

Indep. Comm’n on N.Y. City Criminal

Justice & Incarceration Reform, A More

Just New York City, https://tinyurl.com/

RikersReport ............................................. 7, 8, 9

S. Rep. No. 541, 99th Cong., 2d Sess. (1986)...

17

INTERESTS OF AMICI CURIAE1

The Legal Aid Society, America’s first and largest

public defender, represents a majority of the indigent

criminal defendants in New York City. It has often

advocated before this Court for the Constitutional

rights of criminal defendants, Fay v. Noia, 372 U.S.

391 (1963), overruled in part by Wainwright v. Sykes,

433 U.S. 72 (1977); Baldwin v. New York, 399 U.S. 66

(1970); Cruz v. New York, 481 U.S. 186 (1987), and for

fair and equal treatment of the indigent, United States

v. Kras, 409 U.S. 434 (1973); Blum v. Yaretsky, 457

U.S. 991 (1982); Blum v. Stenson, 465 U.S. 886 (1984).

The case of Petitioner Emmanuel Diaz, an indigent

defendant who was in pretrial detention at Rikers

Island (“Rikers”) in New York City for eight months,

lies at the intersection of these concerns, and at the

heart of the organization’s mission.

SUMMARY OF ARGUMENT

Rikers is a prison in New York that houses

thousands of pretrial detainees. The prison is difficult

to reach. It is located on an actual island in the middle

of one of the most densely populated cities in the

world. Due to its geography, it can take an attorney

or a family member an entire day to visit a detainee

there. As a result, detainees have no choice but to

use the prison’s monitored telephones in order to

communicate with friends and family to discuss

1

Pursuant to Supreme Court Rules 37.3(a) and 37.6, Amici

Curiae certify that no counsel for a party authored this brief in

whole or in part, and no such counsel or party made a monetary

contribution intended to fund the preparation or submission of

the brief, and that the parties have consented to the filing of this

brief. Counsel of record for all parties received notice at least 10

days prior to the due date of the amici curiae’s intention to file.

2

not only personal matters, but also to enlist their

assistance in marshaling the financial resources

necessary for the detainee to exercise their right to

post pretrial bail, to help the detainee identify and

retain counsel, or to provide other assistance to the

detainee in matters related to their defense.

The prison informs detainees that calls are recorded

and monitored through a pre-recorded message played

at the outset of each phone call. That message,

however, is materially incomplete—so much so that

the prison gives detainees false comfort about the

purpose and use of the recordings. Detainees are told

that calls are recorded and monitored for “security”

reasons. Nowhere does the message inform detainees

that their calls are regularly turned over wholesale

to prosecutors who scour them for evidence to use

against the detainees in their pending case. The

obvious result is that Rikers’ detainees have frequent

unguarded conversations on prison telephones with

friends and family the contents of which—

unbeknownst to them—may be used against them as

evidence in their pending cases.

The experience of petitioner, a teenager arrested

and housed as a pretrial detainee at Rikers, highlights

the serious constitutional issues engendered by this

practice. Petitioner was detained at Rikers for nearly

a year before his trial. During his pretrial detention,

Petitioner made more than 1,000 phone calls to friends

and family. In a handful of those conversations, he

made incriminating statements to his father. Those

statements were handed over to the prosecutor and

offered against him at trial over his objection that the

prosecution’s review and use of that evidence violated

the Fourth Amendment. Subsequent to his conviction,

he appealed the trial court ruling to New York’s

3

Appellate Division, and then to the New York Court of

Appeals.

The New York courts upheld the prosecution’s

review and use of monitored phone calls under the

“third party doctrine.” That doctrine states that

“a person has no legitimate expectation of privacy in

information he voluntarily turns over to third parties.”

Carpenter v. United States, 138 S. Ct. 2206, 2216

(2019). In that instance, “the [g]overnment is typically

free to obtain such information from the recipient

without triggering Fourth Amendment protections.”

Id. In petitioner’s case, the New York Court of Appeals

held that a pretrial detainee’s knowing use of a

recorded telephone line is an act of “sharing” that

“assumes the risk” of disclosure to the prosecution and

extinguishes any reasonable expectation of privacy.

An essential factor driving the court’s determination

was Rikers’ misleading disclosure to its detainees that

their phone calls were being monitored and recorded

for security reasons.

The New York Court of Appeals misapplied the

third-party doctrine here. In Carpenter, this Court

significantly modified the third-party doctrine by

finding it inapplicable to law enforcement’s use of

commercial records of cell-site data that reveals the

user’s physical location. Even though a cell phone user

knows and implicitly agrees that his or her movements

are shared with and recorded by the cellular provider,

this Court held that the user nevertheless retains a

privacy interest in his or her physical movements. The

Court emphasized that the “all-encompassing record

of the holder’s whereabouts,” provides an “intimate

window into a person’s life, revealing not only his

particular movements, but through them his ‘familial,

political, professional, religious, and sexual asso-

4

ciations.’” Id. at 2217 (citation omitted). The Court

held:

“[I]n no meaningful sense does the user

voluntarily ‘assume[] the risk’ of turning over a

comprehensive dossier of his physical movements.” Id.

at 2220 (quoting Smith v. Maryland, 442 U.S. 735, 745

(1979)); see People v. Diaz, 122 N.E.3d 61, 77 (N.Y.

2019) (Wilson, J., dissenting).

The institutional telephone at Rikers is as much a

“pervasive and insistent part of his daily life” as a free

person’s cellular phone. A detainee depends on the

monitored line to maintain any connection to the

outside world while he awaits trial at the isolated

Rikers facility. And although pretrial detainees may

have a diminished expectation of privacy by virtue

of their incarceration, this Court has repeatedly

underscored that pretrial detainees retain certain

Fourth Amendment rights. Under this Court’s reasoning in Carpenter, petitioner had an expectation of

privacy in the “all-encompassing record” of his more

than 1,000 recorded phone calls to his family and

friends, compiled over the course of eight months.

Without warrant or individualized suspicion, petitioner’s prosecutors obtained a “detailed, encyclopedic,

and effortlessly compiled” chronicle of every word that

he said to friends and family—information that is far

more revealing, and an even more “intimate window”

into his “familial, political, professional, religious,

and sexual associations” than the chronicle of a cell

phone user’s movements at issue in Carpenter. 138 S.

Ct. at 2217. Just as cell-site data is deserving of

Constitutional protection from law enforcement even

though the cell service company collects and stores

that data to administer its phone service, a detainee’s

pretrial telephone conversations are deserving of

protection from his prosecutor, even though New

5

York’s Department of Correction (“DOC”) has the

recordings for security purposes.

Likewise, Rikers’ systematic collection and review of

pretrial detainees’ phone records for prosecution

purposes cannot be justified as consensual. It is

fundamental that the scope of a warrantless search is

limited by its object and the authorization given.

Rikers expressly told petitioner and other detainees

that phone recordings are made for the sole purpose of

security. The Rikers’ recorded message does not state

that all telephone calls will be transferred to city

prosecutors to aid in the detainees’ prosecution. Thus,

when a detainee like petitioner calls family and

friends, at most, any implicit consent would be limited

to the narrow purpose and use disclosed in the

pre-recorded message—for the DOC to listen to ensure

safety and security, not for use against him in

prosecution. Even if that implicit consent were

voluntary (which is dubious under the circumstances),

the limited scope of that consent does not permit

the prosecution’s collection and use of petitioner’s

recorded calls as evidence against him.

Whether a government intrusion is reasonable

depends in part on the legitimacy of the government’s

interest in the information sought. The New York

Court of Appeals in Diaz said nothing about the

prosecutor’s interest in examining every word a

defendant utters over the telephone. It seems obvious

that prison officials and prosecutors should refrain

from exploiting detainees’ communications to enhance

prosecutions, except as authorized by court order and

upon a proper showing of probable cause.

As a dissenting judge on New York’s Appellate

Division in Diaz remarked, “[w]hile the DOC has a

legitimate interest in maintaining the safety and

6

security of its detention facilities, it has no legitimate

interest in harvesting evidence for the prosecution.”

53 N.Y.S.3d 94, 99 (N.Y. App. Div. 2017) (Hall, J.,

dissenting). The dissenting judges from the New York

Court of Appeals’ decision in Diaz concluded: “We

come back around, then, to whether we, as a society,

want to prosecute crime by jailing suspects for lengthy

periods of time in relatively inaccessible locations

and monitoring their calls for statements that might

be used against them. We might obtain a higher

conviction rate with rubber hoses or waterboards, but

that is not the civilization we want. Our society is

committed to safeguarding the right against selfincrimination and the right to counsel.” 122 N.E.3d

at 75.

Criminal defendants held for lengthy periods of

pretrial detention have a compelling need and no

practical alternative to using the monitored telephones in order to maintain contact with family and

friends to discuss personal matters and matters

relevant to the defense. Routine disclosure of the most

intimate aspects of their lives to prosecutors cannot be

justified under any Fourth Amendment rationale.

Thus, for reasons similar to those outlined by this

Court in Carpenter, detainees have a reasonable

expectation of privacy in their pretrial telephone calls

protected by the Fourth Amendment.

7

ARGUMENT

I. RIKERS IS AN ISOLATED PRISON THAT

LEAVES PRETRIAL DETAINEES WITH NO

CHOICE BUT TO USE ITS MONITORED

PHONE LINES

Rikers is a notorious prison located on an isolated

island in the East River of New York City. Like all

prisons, Rikers is, by design, inaccessible to the public.

Rikers, however, is unusually inaccessible because

of its remote location in Queens, New York, behind

LaGuardia Airport. It is a 40-minute bus ride from

the nearest subway. Family visits are subject to

limited schedules, long waits, and intense and

invasive searches. An independent report led by

former Chief Judge Jonathan Lippman of the New

York Court of Appeals concluded that the “physical

isolation” and “psychological[] isolat[ion]” at Rikers is

a significant problem and encourages “an ‘out-of-sight,

out-of-mind’ dynamic.” Indep. Comm’n on N.Y. City

Criminal Justice & Incarceration Reform, A More Just

New York City 2-3, https://tinyurl.com/RikersReport

(“Rikers Report”). These issues contribute to Rikers

“essentially function[ing] as an expensive penal

colony.” Id. at 2.

And indeed, many indigent defendants are put outof-sight and out-of-mind for months and years in

pretrial detention, simply because they cannot post

bail. During this difficult time, access to family and

friends is crucial but severely limited because a visit

to a Rikers detainee is an onerous, all-day affair.

Rikers Island is located far from the

City’s courthouses and neighborhoods. It is

accessible only by a narrow bridge. The

Department of Correction spends $31 million

8

annually transporting defendants back and

forth to courthouses and appointments off the

Island. Visiting a loved one on Rikers can

take an entire day, forcing people to miss

work and make costly arrangements for child

care.

Id. at 14. As a result, pretrial detainees are forced to

communicate extensively with family and friends on

monitored institutional telephones for a wide variety

of important personal reasons, including trial-related

matters. A detainee’s dependency on these monitored

telephones is virtually complete and unavoidable.

The case of petitioner, a teenager with no prior

arrests awaiting trial for burglary, is emblematic of a

detainee’s plight. He made more than 1,000 recorded

calls to his father and friends during eight months of

pretrial detention, mainly in an effort to raise bail

and commissary money. Four of those calls contained

unguarded admissions that placed him at the scene of

the crime. Had petitioner been free on bail, those

telephone calls could not have been recorded without

a warrant.

Judge Pigott of the New York Court of Appeals has

acknowledged the enormous imposition on pretrial

detainees, “[who] left without options available to

those able to make bail . . . out of necessity, makes

statements during telephone conversations that are

detrimental to the defense.” See People v. Johnson, 51

N.E.3d 547, 550 (N.Y. 2016) (Pigott, J., concurring).

Judge Pigott thus recognized the enormous potential

for abuse where prosecutorial access to a detainee’s

communications is routine: “The current arrangement

between the Department of Correction and the

District Attorney’s office creates a serious potential for

abuse and may undermine the constitutional rights of

9

defendants who are financially unable to make bail.”

Id. at 551.

Pretrial detainees often rely on their friends and

family to help them secure bail, identify and retain

counsel, or assist their attorneys in marshaling

evidence and witnesses in support of their defense.

But friends, family, and attorneys cannot quickly

reach Rikers—it can be a whole day affair to reach the

isolated “penal colony” on an island. Rikers Report 73.

Rikers leaves pretrial detainees with no other

practical choice but to communicate with family and

friends over the recorded lines in order to seek timely

bail, to garner assistance in their own defense, or to

have any personal contact with the outside world. A

reasonable expectation of privacy should attach to

those calls.

Indeed, the phone calls of pretrial detainees from

Rikers have proven to be a fertile source of unguarded

admissions, confessions, and general impeachment

since routine recording began in 2008. New York City

prosecutors regularly enlist student interns to listen

to every word that detainees say to their friends

and family over the course of months and years of

incarceration. Prosecutors have sought to introduce

excerpts of recorded telephone conversations in

approximately half of Legal Aid’s felony trials.

Based upon its interpretation of this Court’s Fourth

Amendment doctrine, the New York Court of Appeals

in Diaz held that every recorded telephone call that

prisoners make to their family and friends over the

institutional telephones may be released to their

prosecutors for use at trial—without advance judicial

approval or even a clear warning to the detainee that

this will occur. Making matters worse, petitioner was

informed that his calls were being “monitored” for

10

reasons concerning institutional security—but not

that those recordings would be made available to his

prosecutor on request. In fact, prison officials and the

prosecutor were working to mount a case against him

by scouring those conversations for evidence. This

Court should reject that practice as inconsistent with

the Fourth Amendment.

II. RIKERS’ PRACTICE OF HARVESTING

ALL PRETRIAL DETAINEE PHONE CALLS

AND GIVING THEM WHOLESALE TO

PROSECUTORS IS UNCONSTITUTIONAL

A. Petitioner Had a Reasonable Expectation

of Privacy in His Phone Calls

The Fourth Amendment guarantees that “[t]he right

of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches

and seizures, shall not be violated.” U.S. Const.

amend. IV. Indeed that right is so basic and important

that securing it “was in fact one of the driving forces

behind the Revolution itself.” Riley v. California, 573

U.S. 373, 403 (2014).

That guarantee requires the government to obtain a

search warrant to search any place or thing where

a person has a reasonable expectation of privacy.

Carpenter, 138 S. Ct. at 2213. The “application of

‘traditional standards of reasonableness’ requires a

court to weigh ‘the promotion of legitimate governmental interests’ against ‘the degree to which

[the search] intrudes upon an individual’s privacy.’”

Maryland v. King, 569 U.S. 435, 448 (2013) (alterations in original) (quoting Wyoming v. Houghton, 526

U.S. 295, 300 (1999)).

11

To be sure, this Court has recognized in Bell v.

Wolfish, 441 U.S. 520 (1979), and Maryland v. King

that individuals who are detained upon a finding

of probable cause have a diminished expectation of

privacy. But this Court has repeatedly recognized that

pretrial detainees “retain some Fourth Amendment

rights upon commitment to a corrections facility.”

See id. at 558. This Court evaluates intrusions into

pretrial detainees’ privacy as a matter of Fourth

Amendment reasonableness. “The test of reasonableness under the Fourth Amendment is not capable

of precise definition or mechanical application. In

each case it requires a balancing of the need for the

particular search against the invasion of personal

rights that the search entails.” Id. at 559. Courts

must consider the scope of the particular intrusion, the

manner and place in which it is conducted, and the

justification for initiating it. Thus, “[s]ome searches

. . . involve either greater intrusions or higher

expectations of privacy than are present in this case.

In those situations, when the Court must ‘balance the

privacy-related and law enforcement-related concerns

to determine if the intrusion was reasonable,’ the

privacy-related concerns are weighty enough that the

search may require a warrant, notwithstanding the

diminished expectations of privacy of the arrestee.”

King, 569 U.S. at 463 (quoting Illinois v. McArthur,

531 U.S. 326, 331 (2001)).

In King, the Court upheld a buccal DNA swab of

arrestees because the intrusion was “brief” and

“minimal” and did not “increase the indignity already

attendant to normal incidents of arrest.” Id. at 46364. Here, by contrast, the balance tips far in favor of

a detainees’ privacy interest. In petitioner’s case,

more than 1,000 of his pretrial phone calls with his

friends and family were recorded and provided to the

12

prosecutor without a warrant. This systematic review

by prosecutors of every inmate phone contact with

friends and family over eight months is highly

intrusive. A detainee has far more significant privacy

interests in his or her intimate conversations with

friends and family during an extended period of

pretrial incarceration than an arrestee’s limited

interest in preventing DNA-test results from being

entered into a database used “for the sole purpose of

generating a unique identifying number against which

future samples may be matched.” Id. at 464.

The government’s interest in having prosecutors

review detainee’s calls does not justify the substantial

intrusion into their privacy. Review by prosecutors of

prison phone calls is an attempt to gather proof of

alleged past offenses; it does not address any present

governmental interest in security or safety. It is

therefore unlike the significant security concerns

that permitted suspicionless searches of prisoner’s

cells and bodily cavities in Bell, or “the significant

government interest at stake in the identification of

arrestees” that was involved in King. It is wellestablished that “[w]here a search is undertaken

by law enforcement officials to discover evidence

of criminal wrongdoing, this Court has said that

reasonableness generally requires the obtaining of a

judicial warrant.” Vernonia Sch. Dist. 47J v. Acton,

515 U.S. 646, 653 (1995); see also Skinner v. Railway

Labor Execs.’ Ass’n, 489 U.S. 602, 617, 619 (1989). At

minimum, prosecutors’ monitoring of intimate phone

calls by pretrial detainees must be justified by some

individualized suspicion. Rikers’ policy of warrantless, suspicionless review of all detainee phone calls,

without any court oversight, plainly violates any

notion of Fourth Amendment reasonableness.

13

The Federal Bureau of Prisons (“BOP”) and the

Criminal Division of the U.S. Department of Justice

(“DOJ”) recognize that pretrial detainees retain an

expectation of privacy in their phone calls from

prison. The DOJ has noted that “the practice of

profiling specific groups of inmates for monitoring

raises concerns when it requires or causes the BOP

to alter its established monitoring procedures for

purposes unrelated to prison security or administration.” Bureau of Prisons Disclosure of Recorded

Inmate Telephone Conversations, 21 Op. O.L.C. 11,

18 (1997), https://www.justice.gov/file/19876/download.

The BOP has similarly recognized that “maintaining

pro-social/legal contact with family and community

ties is a valuable tool in the overall correctional

process. With this objective in mind, the Bureau

provides inmates with several means of maintaining

such contacts. Primary among these is written

correspondence, supplemented by telephone and visiting privileges.” BOP, Inmate Telephone Regulations,

Program Statement No. 5264.08, § 540.100, at 1

(corrected Feb. 11, 2008), https://www.bop.gov/policy/

progstat/5264_008.pdf.

This Court’s precedents make clear that petitioner

had an expectation of privacy in his calls to family and

friends while at Rikers. The question is whether the

third-party doctrine negates that expectation. It does

not.

B. Petitioner’s Detention Did Not Strip

Petitioner of His Reasonable Expectation

of Privacy, Even Under the Third-Party

Doctrine

The New York Court of Appeals held that petitioner

was stripped of his reasonable expectation of privacy

based on the “third-party doctrine” because he knew

14

prison officials were listening to his calls. See Diaz,

122 N.E.3d at 62. Under the third-party doctrine,

“a person has no legitimate expectation of privacy

in information he voluntarily turns over to third

parties.” Smith, 442 U.S. at 743-44. Under this

doctrine, “the [g]overnment is typically free to obtain

such information from the [third party] recipient

without triggering Fourth Amendment protections.”

Carpenter, 138 S. Ct. at 2216. The third-party doctrine

“partly stems from the notion that an individual has

a reduced expectation of privacy in information

knowingly shared with another.” Id. at 2219. By

sharing information with a third party, such as

a bank—see United States v. Miller, 425 U.S. 435

(1976)—or a telephone company—see Smith, 442 U.S.

735—an individual is said to have “assumed the

risk that the company would reveal to police” the

information at issue, id. at 744. Applying this

doctrine, the New York Court of Appeals held that

a pretrial detainee’s knowing use of a recorded

telephone line is an act of “sharing” that “assumes the

risk” of disclosure to the prosecution, and thus

extinguishes any reasonable expectation of privacy.

That analysis is incorrect.

In Carpenter, this Court significantly restructured

the third-party doctrine by declining to apply it to

commercial records of the physical location of cell

phone users. Of necessity, cell phone users constantly

disclose their location to their service providers simply

by carrying their phone from place to place. Even

though cell phone users know and implicitly agree that

their movements may be traced and recorded by the

cellular carrier, this Court held that cell phone users

nevertheless retain a privacy interest in the physical

movements as captured in the cell-site data.

The Court held that allowing warrantless access to

15

cell-site records contravenes a reasonable expectation

of privacy. The Court reasoned that the scope of

the data collected “provides an intimate window into

a person’s life, revealing not only his particular

movements, but through them his ‘familial, political,

professional, religious, and sexual associations.’”

Carpenter, 138 S. Ct. at 2217 (citation omitted). The

Court further remarked that “in no meaningful

sense does the user voluntarily ‘assume[] the risk’ of

turning over a comprehensive dossier of his physical

movements.’” Id. at 2220 (alteration in original).

Similarly, petitioner and other pretrial detainees at

Rikers are forced to provide an “all-encompassing

record” of the “intimate” details of their life through

the wholesale monitoring of their pretrial conversations with friends and family. Indeed, petitioner

himself, a teenager at the time of his arrest, made

more than 1,000 recorded phone calls to his family

and friends, which were compiled over the course of

eight months and shared with prosecutors. Without

warrant or subpoena, petitioner’s prosecutors obtained

a “detailed, encyclopedic, and effortlessly compiled”

chronicle of every word that he said to friends

and family—information that is far more revealing,

a more “intimate window” into his “familial, political,

professional, religious, and sexual associations” than

any chronicle of a cell phone user’s movements.

Moreover, the institutional telephone at Rikers is as

much a “pervasive and insistent part of his daily life”

as a person’s cell phone. A detainee’s dependency

on a monitored line is no less “indispensable to

participation in modern society.” See id. (citing Riley,

573 U.S. at 385). Indeed, the conditions at Rikers

leave most detainees with no choice but to use those

phone lines to maintain contact with the outside

world.

16

The dissenting opinion in Diaz emphasized the

analogy between prison landlines and cellular phones:

Although in [petitioner’s] case the intrusion

stems from good, old-fashioned landline surveillance, it too involves modern technology

that made it possible for DOC to record and

store massive amounts of data and deliver

more than a thousand voice recordings to the

District Attorney with the click of a mouse.

The intrusion is also distinguishable in a

more odious way: the third party obtaining

and sharing the information is not a private

party but is instead an arm of government. It

is exactly such governmental intrusions from

which the Fourth Amendment shields us.”

. . . [Petitioner’s] ability to avoid use of the

prison phone for the eight months of his

incarceration is far less realistic than Mr.

Carpenter’s ability to avoid carrying his

cellphone during his hours-long crime spree.

122 N.E.3d at 77-79 (Wilson, J., dissenting). The

dissent concluded: “Fourth Amendment law, and

privacy law more generally, must adapt to times in

which we, like [petitioner], have no realistic choice but

to divulge information to third parties for a specific

purpose, yet retain our rights against the warrantless

seizure of that information by the [g]overnment.

Sadly, today’s decision [in Diaz] is another Olmstead.”

Id. at 79.

The history of this Court’s 1928 opinion in Olmstead

v. United States, 277 U.S. 438 (1928), and its

abrogation by Katz v. United States, 389 U.S. 347

(1967), presents a very apt parallel to the issue

presented here. In Olmstead, the Court initially

underestimated the inevitable and pervasive role of

17

the telephone as a medium for communicating private

matters. But in Katz this Court recognized that what

an individual “seeks to preserve as private, even in an

area accessible to the public, may be constitutionally

protected.” Id. at 351-52 (emphasis added). Following

that reasoning, Congress passed Title III to authorize

government interception of wire communications only

“under carefully subscribed circumstances.” S. Rep.

No. 541, 99th Cong., 2d Sess., at 2 (1986); see Omnibus

Crime Control and Safe Streets Act of 1968, Pub. L.

No. 90-351, 82 Stat. 197, codified at 18 U.S.C. §§ 251022. In Carpenter, this Court wisely anticipated that

the American people expect the courts to oversee

disclosure of their cell-site data to the government

because of its extensiveness, the intimately private

information it contains, and the ease with which that

extensive trove of private information can be captured.

So, too, here. The privacy interests implicated by

the personal conversations of a defendant who is

detained while awaiting trial are even greater than

those implicated in cell-site data. If cell-site data is

deserving of Constitutional protection from law

enforcement, even though the cell service company

captures it, a detainee’s pretrial telephone

conversations are deserving of protection from his

prosecutor, even though prison officials record them

for security purposes.

C. Even if the Third-Party Doctrine Applies,

Petitioner’s Consent Was Limited to DOC

Review for Security Purposes of the

Prison—Not by the District Attorneys for

Prosecution

Even if the third-party doctrine limited petitioner’s

expectation of privacy in some way, it could only do so

18

to the extent of the consent given.2 “Even if a warrant

is not required, a search is not beyond Fourth

Amendment scrutiny; for it must be reasonable in its

scope and manner of execution.” King, 569 U.S. at 448

(emphasis added). And the “scope” of that search “is

generally defined by its expressed object.” Florida v.

Jimeno, 500 U.S. 248, 251 (1991). Moreover, “[w]hen

an official search is properly authorized—whether by

consent or by the issuance of a valid warrant—the

scope of the search is limited by the terms of its

authorization.” Walter v. United States, 447 U.S. 649,

656 (1980).

The pre-recorded phone messages leave no mistake

that Rikers was monitoring and recording calls

for security purposes only. Any “authorization” by

petitioner through implied consent could be no broader

than that express objective. First, detainees at Rikers

receive and sign a handbook that states “all calls . . .

may be monitored and/or recorded by the Department

for security purposes.” Diaz, 122 N.E.3d at 71

(emphasis added). Signs are then posted next to

telephones that state: “inmate telephone conversations are subject to electronic monitoring and/or

recording in accordance with DOC policy. An inmate’s

use of institutional telephones constitutes consent to

this monitoring and/or recording.” Id. (capitalization

altered). Finally, a recording message at the start

of each call states that calls “may be recorded

2

Given the conditions and circumstances at Rikers, it is

dubious whether petitioner’s consent was in fact voluntary.

See Diaz, 122 N.E.3d at 70-71 (Wilson, J., dissenting) (citing

cases); Birchfield v. North Dakota, 136 S. Ct. 2160, 2186 (2016)

(“[V]oluntariness of consent to a search must be determined from

the totality of all the circumstances.”) (internal quotation marks

and citation omitted).

19

and monitored.” Id. The first notice unequivocally

states the purpose of the monitoring—for “security

purposes”—the second incorporates it, and the third

offers no further information. As a result, the scope of

consent was limited to the DOC’s review of telephone

calls for security purposes—not the wholesale transfer

of all calls to the prosecutor for a general search. See

Walter, 447 U.S. at 657 (“indiscriminate searches and

seizures conducted under the authority of ‘general

warrants’ were the immediate evils that motivated the

framing and adoption of the Fourth Amendment”)

(citation omitted); Diaz, 122 N.E.3d at 72 (Wilson, J.,

dissenting) ([Petitioner]’s consent to a search by DOC,

a non-law enforcement governmental entity, for its

own security purposes cannot reasonably be construed

to include consent for the District Attorney—a law

enforcement entity—to search that information for

prosecutorial purposes.”); Johnson, 51 N.E.3d at 551

(Pigott, J., concurring) (“The Department’s purpose

in recording and monitoring these conversations

is limited to ensuring the safety and security of

its facilities, not harvesting evidence for the

prosecution.”).

Narrowly construing the scope of consent is even

more important considering the nature of pretrial

detention. Importantly, “[p]retrial detainees like

defendant are presumed innocent until proved guilty.”

Johnson, 51 N.E.3d at 551 (Pigott, J., concurring). As

a result, “the State’s only legitimate purpose for

detaining them is to assure their presence at trial, and

their liberty may not be restrained more than

necessary to accomplish that result.” Id.

Indeed, that conclusion is consistent with this

Court’s long-standing recognition that the purpose of

pretrial detention is to keep the community safe. See

20

United States v. Salerno, 481 U.S. 739, 741 (1987). As

a result, this Court has held that pretrial detainees

“retain[] those [constitutional] rights that are not

inconsistent with his status as a prisoner or with the

legitimate penological objectives of the corrections

system.” Turner v. Safley, 482 U.S. 78, 95 (1987)

(second set of brackets in original) (citation omitted).

Accordingly, when a prison practice, such as the

warrantless dissemination of recorded phone calls to

government prosecutors, “offends a fundamental

constitutional guarantee, federal courts will discharge

their duty to protect constitutional rights.” Id. at 84

(citation omitted).

To that end, the Second Circuit has held that

pretrial detainees could not be subjected to prison

cell searches not done for legitimate security reasons.

United States v. Cohen, 796 F.2d 20 (2d Cir. 1986). In

Cohen, a search of the detainee’s prison cell was

initiated by the prosecution, not the prison officials, to

search for evidence in support of a superseding

indictment. Id. at 23. While acknowledging the

limited privacy interest as it relates to security

purposes, the court held that this did not mean that a

pretrial detainee “retains no Fourth Amendment

rights, regardless of the circumstances underlying the

search.” Id. Indeed, the court held that because the

search was initiated by the prosecutors—rather than

the prison officials—there was no legitimate security

reason for the search. Accordingly, the court held that

“[the pretrial detainee] retain[ed] an expectation of

privacy within his cell sufficient to challenge the

investigatory search ordered by the prosecutor.” Id. at

24. Particularly relevant here, the Second Circuit held

that “[a]n individual’s mere presence in a prison cell

does not totally strip away every garment cloaking his

21

Fourth Amendment rights, even though the covering

that remains is but a small remnant.” Id.

The same is true here. While the corrections system

is allowed to collect and monitor the telephone calls

of its detainees with consent, the purpose of such

collection and consent of such detainee should be

narrowly limited to the safety and security of

the institution. Any connection between the stated

purpose of the collection and the subsequent dissemination of these telephone calls to prosecutors,

without a warrant, is tenuous at best. In fact, the

routine production of these telephone calls at the

behest of prosecutors unconstitutionally transforms

the corrections system into an extension of the

prosecutor’s office.

The only purpose for such

production is to bolster the prosecutor’s case against

his defendant. A detainee’s privacy right while

diminished, is not eliminated by his narrow consent to

searches for security purposes. A prison may monitor

calls to secure the safety of the facility but may

not collect telephone calls for purely prosecutorial

purposes.

The telephone conversations of pretrial detainees

should not be disclosed to their prosecutors without a

warrant that is based on an individualized suspicion,

and detainees should be clearly warned that their

words may be used against them at trial.

22

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

LOUIS SARTORI

STEVEN B. WASSERMAN

THE LEGAL AID SOCIETY

199 Water Street

New York, NY 10038

(212) 577-3300

LSSartori@legal-aid.org

SWasserman@legal-aid.org

ILANA H. EISENSTEIN

Counsel of Record

DLA PIPER LLP (US)

One Liberty Place

1650 Market Street

Suite 5000

Philadelphia, PA 19103-7300

(215) 656-3300

ilana.eisenstein@

us.dlapiper.com

JEFFREY D. ROTENBERG

MARC A. SILVERMAN

KATHARINE SUOMINEN

DLA PIPER LLP (US)

1251 Avenue of the Americas

27th Fl.

New York, NY 10020-1104

(212) 335-4828

jeffrey.rotenberg@

us.dlapiper.com

marc.silverman@

us.dlapiper.com

katharine.suominen@

us.dlapiper.com

Counsel for Amici Curiae

June 19, 2019