Today the issue concerning the legality of surreptitious recordings is a disputable one. It is known that in the United States, about 38 states allow to make surreptitious recordings of the conversations if one party gives consent to perform this action, while in 12 states of the country there is a law that prohibits any surreptitious recordings of conversations with and without consent of the parties. Some experts consider that one-party consent to the surreptitious recordings of conversations should be lawful everywhere in the country. (Gaynor, 2009, para.3)
However, in such states as Nevada, Montana, California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Nevada, New Hampshire, Pennsylvania, Michigan and Washington surreptitious recordings are considered to be illegal and cannot be used as legal evidence in the trial. In the case, discussed in the assignment, two men who committed illegal action and were arrested for the stealing a car, violated the law of the US Constitution. They are considered to be criminals. However, the police officer who decided to make surreptitious recordings of their conversation in the car was not right. He had no right to record their conversation in the car without their consent according to the Fifth, Fourth and Sixth Amendments to the US Constitution. (Swank, 2000, para.6)
One of the similar cases has already been discussed in the court. Stanley v. Wainwright case is the original case that deals with Fifth Amendment challenge connected with legality of surreptitious recordings of suspects’ conversations. The case is about two robbery suspects who were arrested and placed by the police officer in the back seat of the police car. They did not know about the tape recorder in the car. Their conversation was recorded and proved to be incriminating in that situation. However, on appeal in the trial, the defense stated that the surreptitious recording that was made in the car violated Miranda rights which say that a person suspected in the criminal action has his right to remain silent. Anything he says will be used against him in the court. Moreover, he has his right to have an attorney. If he cannot afford attorney, the court will appoint the one to him. If the suspects are in custody when the recording is made, the police officer should inform them of their Miranda rights. (Leo, 1996, para.3)
In our case, the situation is practically the same. When the police officer arrests two men and places them in the car, he should inform them of their Miranda rights. However, he failed to do it. That is why the surreptitious recordings cannot be legal evidence. Besides, two men-criminals did not give their consent which was necessary for conducting surreptitious recordings in the car. Moreover, there is one more important fact is that the surreptitious recording of personal conversations violates the Fourth Amendment to the Constitution of the United States that guarantees right of privacy. However, if the recorded conversations take place in prison, or interrogation room, or back seat of a police car, as it was in our case, the Fourth Amendment does not work unless law enforcement officers guarantee the privacy of their conversations. It means that in our case, the surreptitious recordings will not be regarded as legal evidence.
Crawford, K.A. (1993) Surreptitious recording of suspects’ conversations. The FBI Law Enforcement Bulletin. Retrieved from:<http://www.thefreelibrary.com/Surreptitious+recording+of+suspects’+conversations.-a014538660>
Leo, R. (1996) The impact of Miranda revisited. Journal of Criminal Law and Criminology. Retrieved from:<http://www.thefreelibrary.com/The+impact+of+Miranda+revisited.-a018623929>
Swank, D. (2000) How to stop surreptitious recording of conversations in the federal workplace. The Army Lawyer. February 1, 2000. Retrieved from:<http://www.highbeam.com/doc/1P3-49617352.html>
Gaynor, M. (2009) One-party consent to surreptitious recording should be lawful everywhere.