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Monitoring and the Law

Jorge Rodriguez


P is for Privacy

Monitoring Rules Apply to Police


              The Indiana Court of Appeals ruled in June that illegally intercepted cordless telephone calls cannot be used as evidence in Indiana's courts, even when police play no part in intercepting the calls.

            In two decisions -- one of which is for publication, which means it can be cited as legal authority in Indiana -- the court held that Indiana would not recognize a "clean hands" exception which allows the government to use evidence that falls into its hands. The State of Indiana had urged the court to adopt such a holding from a federal 6th Circuit Court of Appeals case U.S. v. Murdock.

            In Murdock, the federal court recognized such an exception to the Electronic Communications Privacy Act (ECPA = also known as Title III) – the federal law that regulates electronic monitoring and surveillance by police and the public. The Indiana Court of Appeals, however, was more persuaded by three other federal appeals courts which have refused to create or adopt such an exception.

            The purpose of the federal law is to protect an individual's private communications from disclosure, regardless of whether a private party or the government intercepts the communication, the court said. “Congress’ primary concern when it passed Title III was the protection of privacy and section 2515’s importance as a protection for ‘the victim of an unlawful invasion of privacy’ could not be more clear.” In contrast, the primary purpose of the Fourth Amendment exclusionary rule “is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures."

            “Therefore, while we agree with the State that suppression of the evidence in this case would have no deterrent effect on future police conduct,” the court went on to say, “Congress’ dominant concern when enacting Title III was not deterrence of unlawful police conduct, but rather, protection of the privacy of communication.”

            “The objective of Title III,” the Court continued “is to shield an individual’s private communications from disclosure, regardless of whether a private party or the government intercepts the communication. As other cases have held, the protection of privacy from invasion by illegal private interception as well as unauthorized governmental interception plainly play[s] a central role in the statutory scheme. Furthermore, an invasion of privacy is not over when an interception occurs, but is compounded by disclosure in court or elsewhere.”

            Returning to the language of the Title III the court wrote “ … the language of section 2515 is unambiguous: [w]henever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived there from may be received in evidence in any trial, hearing, or other proceeding in or before any court, …if the disclosure of that information would be in violation of Title III.The literal application of section 2515, which requires the exclusion of illegally intercepted communications from being admitted into evidence in court proceedings, is consistent with the intent of Title III, protection of privacy.”

            The court’s decision in June stems from an attempted murder conviction in which the illegally intercepted telephone calls were introduced as evidence. In September of 2001 Timothy Henson and his girlfriend were engaged to be married and living together in the same apartment. Later that month, Henson’s girlfriend ended the relationship. On the day she moved out of their apartment, she obtained a protective order against Henson, but it was of little help in keeping him away from her. Shortly after she ended the relationship, Henson began to follow her, call her at work, and even page her; Henson also left voice messages for her saying that he wanted to make-up; and that “he couldn’t live without” her.

            On November 9, 2001, at approximately 8:00 p.m., Henson’s ex-girlfriend was in the parking lot of the American Bandstand restaurant on the northeast side of Indianapolis when she saw Henson drive up behind her. She quickly drove out of the parking lot and headed home. As she waited for a traffic signal, Henson pulled up along side her vehicle and starting yelling at her to pull over. She became upset and when the light changed, she drove west onto 86th Street past the Fashion Mall towards Keystone Avenue. After she passed Keystone Avenue, she turned onto Woodfield Crossing which leads to an office park and stopped. Henson caught up with her, and when he arrived at her vehicle, he reached in through her open driver’s side window, grabbed her, and stabbed her in the neck. Eventually, Henson’s ex-girlfriend was able to drive away and get help.

            After she was admitted to the hospital, she stated Henson was responsible for the stabbing. Henson was charged with attempted murder and aggravated battery, but he was not arrested because he could not be found at the time. Marion County Sheriff’s Deputy Scheid was assigned to investigate the case.

            During the course of his investigation, an unidentified individual contacted the hospital to inquire about Henson’s ex-girlfriend. The hospital contacted Deputy Scheid and gave him the caller’s telephone number from their caller-id system.

            On November 27, 2001, Deputy Scheid, accompanied by another detective went to the caller’s residence to speak with him about the calls. When Deputy Scheid arrived, Paul Carey, the homeowner said, “Thank God you’re here, he’s on the phone again, come with me.” Carey then grabbed his arm and dragged the deputy into his kitchen. Carey explained that he had a police scanner, which “was on all day long,” that was intercepting telephone conversations, and that he “knew all of the frequencies for [the phone numbers] of all of his neighbors.” Deputy Scheid and Mr. Carey then listened to a telephone conversation between Henson and his sister on the police scanner.

            During the conversation, Henson’s sister warned him that the police were looking for him. Henson also told his sister that he needed clean clothing and money, and arranged to meet her. Deputy Scheid and the other detective remained at Carey’s residence for over two hours listening to Timothy’s various telephone calls over the police scanner.

            As this issue went to press, Deputy Attorney General Ellen Meilaender, who argued for the Indiana Court of Appeals to adopt the “clean hands” policy regarding the intercepted phone conversations, said the state had not decided whether to appeal the ruling.

            Monitoring and the Law would like to thank Spurgeon Geisten for writing and telling us about the Henson case.


Corrections and Omissions

             Monitoring and the Law would like to recognize and thank Kenneth Koenitzer who, along with Attorney Frank Terranella. and John Norton, helped change the old New Jersey state scanner law discussed in the July issue.

            Disclaimer: The column is provided for its news value and nothing here should be construed as legal advice. Persons seeking specific legal advice should consult an attorney licensed in their jurisdiction about the specifics of their matter.