accessible to him as a backseat passenger. They discovered that the officer had tape recorded their conversation in the back of the patrol car, where Mr. Smeek questioned Mr. Cooper’s consent to the search of his car, after they were arrested. ARGUMENT: In United States v. McKinnon, 985 F.2d 525 (11th Cir. 1993), the Eleventh Circuit addressed the issue of whether a defendant has a subjective expectation of privacy under the Fourth Amendment while detained in the backseat of a police vehicle. The defendant’s conduct must exhibit a particular expectation of privacy. The defendant’s subjective expectation of privacy must be one that “society is willing to recognize as reasonable.” McKinnon, 985 F.2d at 527 (citing Smith v. Maryland, 442 U.S. 735, 740 (1979) and Katz v. United States, 389 U.S. 347, 361 (1967)). See also United States v. Gilley, 43 F.3d 1440 (11th Cir. 1995).
Furthermore, Federal wiretapping and eavesdropping statutes apply. Federal statutes prohibit secretly tape-recording an “oral communication”. A penalty for tape-recording an oral communication is that the tape recording may not be used in court. CONCLUSION: For all the foregoing reasons, the Defendant, by and through undersigned counsel, respectfully, moves this Court, to grant the Defendant’s Motion and suppress the tape-recorded evidence in this case. This motion applies to the tape-recording evidence which may have been made by the Defendant. All evidence obtained as a result of any of the above, including but not limited to, the recorded conversation between Defendant and Mike and Charles Cooper.
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- Spring '13
- Fourth Amendment to the United States Constitution, cocaine, Arrest, Katz v. United States, Charles Cooper