Pubdate: Tue, 23 May 2006 Source: Hartford Courant (CT) Copyright: 2006 The Hartford Courant Contact: http://www.courant.com/ Details: http://www.mapinc.org/media/183 Author: Lynne Tuohy, Courant Staff Writer 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. - --- MAP posted-by: Beth Wehrman