A year or so ago I received a document from the Sedgwick County Sheriff’s Department that surprised me. It requested my law office’s telephone numbers that would be used to talk to inmates inside the detention facility. It also stated that any conversations that took place that were not through those listed lines would be monitored and recorded, to be used against the inmates in a court of law.
I suspected that there was something not quite right about the request. Sadly, case law at the time was inconclusive.
Here’s how the law really works. First, the law enforcement officer violates the defendant’s rights, which leads to the discovery of incriminating evidence. The State files charges. The defendant pays his attorney thousands of dollars to defend him against the charges that would not have been supported but for the illegally-obtained evidence. The attorney files a suppression motion to get rid of the case. The defendant wins his motion so the evidence is suppressed and the case dismissed. The defendant lives happily ever after, though he’s out a ton of cash.
Bottom line: the jail has been recording conversations between attorneys and clients and using them against the clients, even though it stinks to high heaven, and has been employing this method of investigation to nail inmates, legally and illegally, for years. They don’t care if it’s violating anyone’s rights. They leave it up to the lawyers to uncover their blatant violations of inmates’ 5th and 6th Amendment rights, regardless of the amount of heartache and expense such tactics cause.
Today the Kansas Supreme Court gave my spider sense confirmation, if in a roundabout way:
K.S.A. 21-4001 and K.S.A. 21-4002 are not violated when a jail records an inmate’s telephone conversations with someone other than the inmate’s attorney if the inmate has been given notice that the call will be monitored. Both statutes have consent exceptions, and the inmate consents to the recording through the action of continuing with the call with the knowledge that the call may be monitored.
State v. Gilliland, No. 102,265, Syl. ¶ 7 (May 11, 2012) (underscore added). Simply put, while any other conversation being recorded can be used against an inmate as long as he’s been given notice, this only applies to conversations with someone “other than the inmate’s attorney.”
Still, you should be very wary discussing anything with anyone, attorney or not, over a telephone line when either end of the conversation originates in a jail. So what if they don’t admit to recording or listening to your conversation. Do you think that if they hear something incriminating they won’t attempt to follow up on the evidence in such a way as to make it impossible to tell it arose from illegal means? You are naïve if you feel this way.
You tell them where the body is buried. Bet they can find someone who saw you burying it there.