By: Christina M. Nicholas, Esq.
Everyone has placed a “pocket dial” at some point. You likely discovered the call had been placed, ended it, and sent an apologetic text to the recipient. You probably did not give the dial a second thought, but what if the recipient had written down or recorded what he or she heard? Is there a reasonable expectation of privacy in information communicated during an inadvertent “pocket dial?”
This question was answered in Huff v. Spaw, 794 F.3d 543 (6th Cir.2015). In this case, an airport chairman’s iPhone inadvertently placed a “pocket dial” to another airport employee’s office phone. Id. During the “pocket dial,” the employee heard the chairman discussing personnel matters with another airport employee and his wife. Id. at 546. The employee took handwritten notes and recorded the conversations she heard. Id. The airport chairman and his wife brought suit, alleging that the employee intentionally intercepted the oral communications in violation of the Omnibus Crime Control and Safe Streets Act. Id.
The court found that because the chairman placed the “pocket dial” to the airport employee, he exposed his conversations to her, and, thus, failed to show an expectation of privacy in the conversations. Id. at 550. The chairman did not have a reasonable expectation of privacy in the conversations because he was aware of the risk of making “pocket dials,” and had failed to take any measures to prevent the pocket dial from occurring. Id. at 552. As it relates to the chairman’s wife, the court found that, “speaking to a person who may carry a device capable of intercepting one’s statements does not constitute a waiver of the expectation of privacy in those statements.” (Emphasis added). Id. at 553.
The ruling in Huff v. Spaw is particularly important to those in law enforcement. When information regarding criminal activity is communicated via “pocket dial” to 911, this information can now be admitted at trial, as there is no reasonable expectation of privacy in said information.
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