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.
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