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Should a criminal defense lawyer file a motion to suppress incriminating statements recorded by police when the defendants were being held in the back of a patrol car? That is the question raised by the recent arrest of two University of Florida basketball players and a team manager in St. Augustine, Florida. The players are charged with felony burglary and the manager is charged with being a principal to the burglary of a car parked outside a local bar. The players were detained by police and placed into the back of a police patrol car while the manager remained at large. Unbeknownst to the players, police first placed a small tape recorder in the back seat and turned it on. First Coast News obtained the audio of the players conversation which is available here. In the recording, the players can be heard admitting to breaking into the car and discussing various stories they could tell police in an effort to “get off.” The players also use a cell phone to call the manager and place him on speaker phone.

A few weeks ago on this blog, we talked about when statements made by a criminal defendant who is in police custody may be admitted as evidence against the defendant in a criminal trial if the defendant is not read his or her Miranda rights. As we discussed in that prior post, a defendant who is in custody must be advised of his or her Miranda rights before being questioned by police. The players in this case would almost certainly be considered in police custody since a reasonable person in that situation would not feel he was free to leave. Although the full facts are not yet known, it is very possible that the players were locked in the vehicle and could not have just opened the door and walked away if they had wanted to. This, however, does not end the inquiry. Miranda also requires that the statements sought to be suppressed be made in response to police questioning. Here, the players do not appear to have had their Miranda rights read to them but the police did nothing more than detain the suspects in a patrol car. The officer quoted in the article correctly notes that there is no reasonable expectation of privacy in the back seat of a police car. Although this expectation of privacy, or the lack thereof, is more relevant to a Fourth Amendment analysis of what constitutes an unreasonable search and seizure, the purpose of this post is to examine whether the incriminating statements are admissible under the Fifth Amendment and Miranda.

If there was a police officer in the car with the players who was questioning the suspects about the burglary, clearly Miranda would require that the officer read them their rights. In this case, however, the players freely choose to discuss the events with each other. The fact that they did not know they were being recorded is irrelevant to whether the statements will be admissible in court.