State v. Owens4/10/2002
statement that Owens had to tell them everything did not render his statements involuntary. On the contrary, each of Owens' complaints is overstated, taken out of context, or had no impact on his ability to make an uncoerced, autonomous decision to make statements. When reviewed in context, the entire interview reveals that Owens voluntarily participated with Openhowski, that Owens' confession was the product of his own balancing of competing considerations, and that his will was not overborne by the detective's tactics.
[ .] 6. Whether Owens had a subjective or objective expectation of privacy in a telephone call made to his mother in a police interrogation room.
[ .] After his interview with Detective Openhowski, Owens called his mother from the interrogation room. During the course of the telephone conversation, Owens made incriminating statements to his mother, including, "I murdered someone . . . . I snapped on Amber [Poppenga] that night and then some other chick [Ross] and then I ended up killing her." This phone conversation was videotaped and admitted into evidence.
[ .] Owens contends that he had a subjective and objective expectation of privacy in this phone call. Owens points out (1) that he was led to believe, early in the interview, that it was not being recorded; (2) that he made the call from a portable phone, which he described as a "private" line; (3) that he was not informed that the call would be videotaped; and (4) that he was alone in the interrogation room with the door shut when the call was made. Owens contends that under these circumstances, his conversation was a private "oral conversation" within the meaning of SDCL 23A-35A-1(10). Owens argues that the unauthorized interception of an "oral conversation," in violation of SDCL ch 23A-35A, violated his rights under the Fourth and Fourteenth Amendments of the United States Constitution and Art VI § 11 of the South Dakota Constitution. We do not, however, reach this constitutional argument because we find that the phone call was not an "oral communication" within the meaning of SDCL 23A-35A-1(10).
[ .] SDCL ch 23A-35A regulates the interception of wire and "oral communications." An oral communication is protected only if it is uttered by a person exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation. SDCL 23A-35A-1(10). Therefore, Owens had to exhibit an expectation of privacy. Furthermore, any such expectation must have been justified. State v. Iverson, 364 NW2d 518, 525 (SD 1985); State v. Woods, 361 NW2d 620, 621 (SD 1985).
[ .] If this were a constitutional inquiry, Owens would bear the burden of establishing that he manifested a subjective expectation of privacy and that any such expectation, when viewed objectively, was reasonable. State v. Rewolinski, 464 NW2d 401, 406 (Wisc 1990). See United States v. Knotts, 460 US 276, 281, 103 SCt 1081, 1084-85, 75 LEd2d 55, 61-62 (1983); Smith v. Maryland, 442 US 735, 740, 99 SCt 2577, 2580, 61 LEd2d 220, 226 (1979); and Katz v. United States, 389 US 347, 361, 88 SCt 507, 516, 19 LEd2d 576, 588 (Harlan, J., concurring) (1967). We conclude that Owens must also bear that burden under the similar statutory provisions of SDCL ch 23A-35A.
[ .] After observing Owens' conduct on the videotape, the trial court found that Owens was not subjectively deceived. The court noted that "at approximately 10:04:32 of the video recording [Owens] appears to first notice the metal plate with the video lens and bends over and looks at it closely." The trial court noted that thereafter, Owens stood in positions to block the view of the camera or sit in a position that was out
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