I join the majority's result and I generally agree with the majority's recital of applicable law. See State v. Scheineman, No. 1196-01, slip op. (Tex. Crim. App. June 12, 2002) (hereinafter cited as "Majority Op."). However, I do not join the majority opinion to the extent that the holding goes beyond that which is necessary to decide this appeal.

In this case, the court of appeals recognized that people do not ordinarily have an expectation of privacy in an instrumentality controlled by law enforcement. ⁽¹⁾ State v. Scheineman, 47 S.W.3d 754, 756 (Tex. App.-San Antonio 2001). It went on to hold, in essence, that this case fell outside the general rule because the deputy engaged in deliberate misrepresentations that lulled appellee and his co-defendant into believing that their conversations in the interview room would be private. Id. The majority of this Court disagrees "that law enforcement engaged in deception by placing appellee in a room at the county law enforcement building, permitting him to confer alone with his co-defendant, then recording their conversation." Majority Op. at 4.

My disagreement with the majority opinion is this: after determining that there was no deception in this instance that would create an expectation of privacy that society is willing to recognize as reasonable, the majority shapes its holding in terms that are unnecessarily absolute. It states: "We do not believe that society is prepared to recognize a legitimate expectation of privacy in conversations between arrestees who are in custody in a county law enforcement building, even when only the arrestees are present and they subjectively believe that they are unobserved." Majority Op. at 5.

First, this language is overly broad in that it is not limited to an expectation of privacy under the Fourth Amendment, which was apparently the basis for the holding by the court of appeals. See Scheineman, 47 S.W.3d at 756 (not discussing any expectation of privacy that might arise under Texas Constitution or statutes). The majority's reasoning forecloses any arguments that would arise under Texas law as well. Compare State v. Calhoun, 479 So. 2d 241, 244 (Fla. Dist. Ct. App. 1985) (recognizing that defendant whose conversations were surreptitiously recorded would have no legitimate expectation of privacy under the Florida or United States Constitutions, but basing expectation on Florida statutes prohibiting unlawful intercepts). Moreover, the majority apparently answers the questions presented by the co-defendant's appeal in State v. Trevino, 63 S.W.3d 512 (Tex. App.-San Antonio 2001, pet. granted). As the majority notes, the statement of facts in the instant case makes no reference to any oral assurances that were given by the deputy to appellee. The statement in Trevino's case, however, contains a recitation that: "Rather than talk to the deputy, [Trevino] requested the opportunity to talk alone with [appellee] … ." Although the questions presented in Trevino's appeal seem to be different from those in appellee's, the above-quoted portion of the majority opinion seem to answer the questions in both cases. ⁽²⁾ Finally, the majority takes note of the fact that this case did not involve a privileged communication, but does not apparently limit its holding to cases involving a non-privileged communication. Indeed, the majority opinion seems to foreclose the possibility that there could ever be a legitimate expectation of privacy in a law enforcement location. While I understand that this is the generally the tenor of federal cases on the matter, I disagree that our approach should be such an absolute one.

In its petition for discretionary review, the State complains specifically of the Court of Appeals' failure to apply the factors this Court set out in Villareal v. State, 935 S.W.2d 134, 138 (Tex. Crim. App. 1996) for determining whether or not a subjective expectation of privacy is one that society is prepared to recognize as reasonable. The factors that we set forth in Villareal are six separate factors, none of which is susceptible of a per se application. Rather, the factors should be applied on a case-by-case basis and not in such a manner as to absolutely foreclose the possibility that there could ever be a legitimate expectation of privacy in a law enforcement instrumentality.

Moreover, I disagree with the notion that the invasions into the privacy of those who are present in a law enforcement building are always justified by the institutions' security interests. The California Supreme Court in North explained the rationale thus:

The rationale underlying this general rule is based upon a policy favoring the use by jail authorities of reasonable security measures. "A man detained in jail cannot reasonably expect to enjoy the privacy afforded to a person in free society. His lack of privacy is a necessary adjunct to his imprisonment. … 'To censor and in certain circumstances to forbid communication to and from a prison is necessary to protect against escape.'"

North v. Superior Court, 502 P.2d 1305, 1309 (Cal. 1972) (citations omitted). I think that to rely exclusively on this rationale is to oversimplify the interests involved. While it is true that society's interests will almost always weigh more heavily in favor of the ability of law enforcement bodies to maintain the security of their facilities, it is not true that societal interests would never be served by protecting the confidentiality of a conversation that takes place in such a location. Similarly, as recognized by the Court of Appeals, it is not true that society has no interest in guarding against deception on the part of law enforcement. I agree with the majority that in this case, State v. Scheinemann, the actions of the deputy did not rise to the level of deception that would be necessary to give rise to an expectation of privacy that society would recognize as reasonable. There is no indication in the record that Scheineman was aware of either his co-defendant's request to speak alone or the deputy's silence in the face of the request. Nevertheless, I do not agree that our holding need be as sweeping as it is in the majority opinion and I do not join the portion of the opinion that crafts a per se rule for expectations of privacy in an instrumentality of law enforcement.

Filed June 12, 2002

Publish

1. By "instrumentality" I mean buildings and vehicles that are controlled by law enforcement and in which the controlling officers have traditionally been thought to have a particularly high security interest.

2. In the majority's defense, however, the court of appeals also answered the questions presented by the separate appeals as a single question. See Trevino, 63 S.W.3d at 512 ("This panel previously addressed the same issue raised by the State in State v. Scheineman …").