Belmer v. Commonwealth

Citations: 553 S.E.2d 123; 36 Va. App. 448; 2001 Va. App. LEXIS 531Docket: 2344001

Court: Court of Appeals of Virginia; October 2, 2001; Virginia; State Appellate Court

Original Court Document: View Document

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Akeim Elijah Belmer was convicted of robbery, use of a firearm during a felony, and conspiracy to commit robbery. On appeal, he argued that the trial court improperly denied his motion to suppress a statement made to his mother during police interrogation. The events leading to his conviction began in November 1999 when Belmer and Jason Bonelli, both students, arranged a meeting under the pretense of a sale involving a compact disc player. During the meeting, a masked assailant robbed Bonelli at gunpoint. Bonelli suspected Belmer's involvement and indicated he would inform the police.

After the robbery, Belmer was arrested and taken to a police station where he was informed of his Miranda rights. His mother and her boyfriend entered the interview room without being explicitly informed about the monitoring sign posted in the lobby, which was not directly pointed out to them by the detective. The detective allowed them to remain in the interview room while he completed paperwork, intending to observe their interactions. The court ultimately affirmed Belmer's convictions.

Detective Gandy overheard a whispered conversation between the appellant and his mother's boyfriend, where the appellant mentioned another son potentially being involved and expressed confusion about how the police learned this information, suggesting Demetrius might have informed them. The appellant moved to suppress these statements, but the trial court denied the motion, ruling that he had no reasonable expectation of privacy in a police station's interrogation room. 

On appeal, the Commonwealth argued that the appellant's claim was procedurally defaulted under Rule 5A:18 because defense counsel did not explicitly preserve the issue during the motion hearing. However, the court found that the trial court was adequately alerted to the issue during the hearing, which included evidence and arguments. Citing prior cases, the court noted that requiring an explicit exception to the court's ruling would be redundant, and thus the issue was not procedurally defaulted.

Additionally, the court addressed the legality of the interception of communications under Virginia Code sections 19.2-61 to 19.2-70.3, which restricts the interception and disclosure of wire or oral communications without proper authorization. The appellant's argument in the trial court, while not citing specific code sections, was deemed sufficient to preserve the issue for appeal. The absence of an authorization order from the Attorney General for interception was noted. The appellate court concluded that it could consider relevant legal principles despite the trial court's or counsel's oversight, affirming that properly preserved issues should be evaluated according to applicable statutes and rules.

The analysis under the statutory scheme mirrors that of the Fourth Amendment, as established in Wilks v. Commonwealth. Virginia Code § 19.2-65 imposes an exclusionary rule that prevents the use of any evidence obtained through the interception of wire or oral communications in legal proceedings if such interception violates the chapter's provisions. Specifically, Code § 19.2-63.1 mandates that the Chief of Police maintain direct control over any interception devices used by the police department. 

Oral communication, as defined in Code § 19.2-61, requires the speaker to exhibit an expectation of non-interception under justifiable circumstances, excluding electronic communications. This expectation aligns with the constitutional privacy standard, which involves both a subjective expectation of privacy and a societal recognition of that expectation as reasonable. 

In this case, the appellant demonstrated a subjective expectation of privacy in the police interview room. Evidence indicates that he entered through a rear door, avoiding a posted sign indicating electronic monitoring, and did not receive any warnings about it from his mother or her boyfriend. Furthermore, during the interview, the appellant expressed a desire to consult a lawyer before making statements, and his whispered comments to Gray suggested efforts to keep his conversation private. The evidence supports the conclusion that the appellant had a legitimate expectation of privacy in the interview room.

The primary issue is whether a prisoner has a reasonable expectation of privacy in conversations with visitors, which most courts have ruled against due to the necessity of monitoring for prison security. In *Lanza v. New York*, the Supreme Court addressed a case where a jail conversation was recorded without the individuals' knowledge. Lanza argued this interception violated his Fourth Amendment rights, asserting the jail visiting room was a protected area. The Court found that jails lack the privacy attributes of homes or other personal spaces and that official surveillance is standard in prisons. However, it acknowledged that certain confidential relationships may influence privacy expectations. The appellant did not raise any privilege, such as a parent-child privilege, during the trial or in the brief, only mentioning it in response to questions at oral argument. Consequently, the appellate court declined to consider the privilege issue and focused solely on the appellant's expectation of privacy in the police interview room. The dissenting opinion highlighted the parent-child privilege but was not considered due to the lack of prior argument. Additionally, the California Court of Appeal in *Ahmad A. v. Superior Court* reaffirmed *Lanza*, indicating that federal courts continue to allow the admission of monitored conversations in jails and police stations.

Jail officials are permitted to intercept conversations between prisoners and visitors, a principle established in Lanza v. New York, which remains valid under the Fourth Amendment despite subsequent cases like Katz v. United States. No federal decisions have contradicted this ruling, and even state cases that differ do so based on state law, not federal. The absence of evidence showing a subjective expectation of privacy in the minor's conversation with his mother at the police station supports the conclusion that the minor had no right to exclude evidence under the Fourth Amendment. Conversations in police-controlled areas, such as interview rooms, do not afford a reasonable expectation of privacy, especially when the environment is designed for disclosure. The minor's situation was further complicated by the fact that he was aware of the ongoing investigation into his involvement in a crime. While some cases suggest a reasonable expectation of privacy can arise if officers mislead suspects about their privacy rights, in this instance, the detective did not provide such assurances. Other court examples reinforce that conversations in police settings are generally not considered private, particularly when the suspect is aware they are under investigation.

Detective Gandy did not inform the appellant about his right to privately converse with his mother and her boyfriend. The appellant did not request a private discussion, and when the boyfriend indicated a desire for legal counsel, Detective Gandy left the room without facilitating a private conversation. The ruling emphasizes that merely leaving a suspect alone with others does not establish a reasonable expectation of privacy. Case law supports that conversations in police custody, including in cars and interrogation rooms, generally lack privacy protections. The court affirmed the denial of the motion to suppress evidence, concluding that the appellant's expectation of privacy was not reasonable given the circumstances. 

Justice Elder dissented, arguing for a recognized right of family privacy under Virginia law that would protect the communication in question. Elder contended that even absent established privacy rights, the appellant's subjective expectation of privacy should be considered reasonable. The dissent suggested that the parent-child relationship should factor into assessing the expectation of privacy. Elder pointed to the Supreme Court's Lanza decision, which acknowledged the need for protection of confidential relationships even in detention settings, and referenced other cases that recognized privacy rights in specific contexts, such as conversations between spouses.

During a five-minute encounter, police recorded a conversation between North and his wife without their knowledge. The court ruled that the conversation's content should be suppressed, highlighting that the detective's actions—allowing the couple privacy in his office and then exiting—implied confidentiality, thereby creating a reasonable expectation of privacy based on the statutory presumption that spousal communications are confidential. In contrast, California law does not extend this privilege to conversations between minors and parents, as established in Ahmad A. v. Super. Ct. In People v. Hammons, the California Court of Appeal extended the North ruling, asserting that an expectation of privacy can exist in police stations based on police representations, as seen when a detective left two codefendants alone, leading them to believe their conversation was private, which was subsequently recorded without their consent. Conversely, in Kirkpatrick v. Joseph A., the court found no implied privacy representation because of the ambiguous nature of the officer's actions. Additionally, Virginia law mandates the protection of confidential communications between children and their guardians, requiring that juvenile proceedings be initiated in juvenile court and ensuring that parents or guardians are notified of any hearings affecting their child’s custody rights, as reinforced by the U.S. Supreme Court in In re Gault.

Numerous legal principles highlight the critical role of parents as confidantes and counselors to minor children, emphasizing the desirability of parental presence during police interrogations. Courts have recognized the right of parents to raise their children as a fundamental liberty interest tied to privacy rights. Termination of parental rights is allowed only under extreme circumstances, following efforts to provide necessary services. Additionally, a New York court established that certain communications between parents and children are protected under a constitutional "right of family privacy," akin to established legal privileges. The intimate relationship between family members is underscored, particularly when a troubled child seeks guidance from parents. Concerns arise over the potential for parents to feel compelled to testify about their children's confidences, which conflicts with societal values. In Virginia, the law aligns with these views, suggesting that family privacy protects communications similar to a formal privilege. In a specific case, the actions of Detective Gandy, who allowed a private conversation between a juvenile and his parents after indicating the need for a lawyer, reinforced the expectation of confidentiality. Consequently, admitting testimony about the juvenile's statements violated both the Fourth Amendment and statutory privacy protections.

Detective Gandy's statements and actions created an objectively reasonable expectation of privacy for the appellant regarding his communications with his mother and her partner, despite the absence of a recognized right of family privacy in this case. Citing relevant case law, the dissent argues that when Carl Gray indicated to Detective Gandy that the appellant would not speak until consulting a lawyer, and Gandy acknowledged this request by leaving the room, a reasonable expectation of privacy was established. Gandy's subsequent intent to overhear the conversation violated this expectation. The dissent concludes that the admission of Gandy's testimony about the appellant's statements breached both the Fourth Amendment and Code § 19.2-65, warranting a reversal and remand for further proceedings. Additionally, while the appellant's mother and Gray could be compelled to testify, any statements made by the appellant about innocuous topics, rather than the offense, would still be inadmissible under the Fourth Amendment and the Code.