Supreme Judicial Court (September 11, 2009)

Neither pretrial detainees nor convicted inmates hold a reasonable expectation of privacy in recorded telephone conversations from a jail; there thus is no violation of a constitutional right to privacy when a sheriff provides those recordings in response to a grand jury subpoena.

The Suffolk County Sheriff's Department has a policy for the monitoring and recording of telephone calls made by detainees and inmates. The policy provides, among other things, that all detainees and inmates are to be "informed at the time of admission that telephone calls are subject to monitoring and recording."

In accordance with the policy, each detainee and inmate at the jail is assigned a personal identification number which must be entered in order to place a telephone call. Parties to telephone calls made by detainees and inmates receive a voice prompt to select one of four languages, English, Russian, Spanish, or Vietnamese, and are then advised by a prerecorded announcement, made in the language selected, that the call is originating from the jail and that it is being recorded and is subject to monitoring.

In addition to being advised during their orientation to the jail of the monitoring and recording of their telephone calls, a written guide is distributed to detainees and inmates that states that the sheriff "records all inmate telephone conversations, except calls to attorneys and legal services organizations," and signs are posted on or near all telephones explaining to detainees and inmates in English and Spanish that all calls are subject to monitoring and recording. Detainees' and inmates' calls to attorneys are not monitored or recorded.

In May 2008, a Suffolk County grand jury issued a subpoena to the Suffolk County Sheriff's Department for certain records, including recordings of all telephone calls made by a particular pretrial detainee or inmate being held at the jail, for use in an investigation. The sheriff, concerned that complying with the subpoena would violate the constitutional right to privacy of the jail's detainees and inmates, moved to quash the subpoena; a Superior Court judge denied her motion. The sheriff declined to comply with the subpoena; the court entered an order of contempt against her, and she appealed from that order.

The Supreme Judicial Court addressed the privacy issues raised by the sheriff's motion to quash and affirmed the trial court's denial of that motion. The Court held that, under the Fourth Amendment, the detainee or inmate could have no objectively reasonable expectation of privacy in the recorded telephone conversations where all parties have notice that calls are subject to monitoring and recording. The Court also concluded jail's recording regulations were justified by valid penological interests and did not violate art. 14.