The STATE of Texas v. Michael August SCHEINEMAN, Appellee, 77 S.W.3d 810

OPINION JOHNSON, J., delivered the opinion of the Court, in which KELLER, P.J., PRICE, WOMACK, KEASLER, HERVEY, HOLCOMB, and COCHRAN, JJ., joined. Appellee was indicted for attempted burglary of a habitation with intent to commit theft. The trial court granted ap-pellee’s motion to suppress his statement given while in custody. The state appealed that decision. The Fourth Court of Appeals affirmed the trial court’s suppression order. State v. Scheineman, 47 S.W.3d 754 (Tex.App.-San Antonio, pet. granted).

We granted the State Prosecuting Attorney’s petition for discretionary review which challenged the court of appeals’ decision. We will reverse. The record contains the parties’ Agreed Statement of the Case on State’s Appeal, which sets out the relevant facts of the case. This document indicates that appel-lee and his co-defendant, after being arrested, were placed in separate rooms at the county law enforcement building. The co-defendant, Joe Trevino, requested that he be permitted to speak alone with appel-lee.

The deputy agreed, moved appellee into the room in which Treviño sat, and left them alone in that room, whereupon appellee and his co-defendant discussed their actions in the alleged attempted burglary. Appellee asserts that the deputy’s actions “lulled” the co-defendants into believing that the conversation was private and thereby raised a legitimate expectation of privacy.

The agreed statement also reflects that appellee and his co-defendant believed that their conversation was confidential, that neither had any idea that anyone was monitoring their conversation, and that they would not have discussed the burglary had they known that the conversation was being recorded. Appellee learned only later that the conversation had been recorded.

In the trial court, appellee’s Motion to Suppress Statement of Defendant asserted that appellee’s statements during his conversation with his co-defendant should be suppressed because they were obtained through an unlawful interception and recording of an oral communication in violation of Tex. Penal Code, § 16.02, and of his United States and Texas constitutional rights. The trial court granted the suppression motion. The state appealed.

In the court of appeals, the state argued that appellee did not have a reasonable expectation of privacy; appellee and his co-defendant were being investigated for criminal conduct and were in the Ken’ County Law Enforcement Building. Such circumstances are akin to a statement made while in a jail cell, a scenario in which the Supreme Court has said that there is no expectation of privacy. Hudson v. Palmer, 468 U.S. 517, 525-26, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393, 402 (1984).

The state asserted that, under these circumstances, the recording violated neither federal nor state law and should not have been excluded. The court of appeals held that while the record supported the trial court’s finding that appellee had a subjective expectation of privacy, “under normal circumstances society is not prepared to recognize as reasonable an arrestee’s subjective expectation of privacy with regard to conversations that occur in the back of a police car or in a jail or prison.” State v. Scheineman, 47 S.W.3d at 756.

However, the court of appeals went' on to find that, under the circumstances of this case, the police created a situation in which appellee and his co-defendant were led to believe that their conversation was private and that “society should not sanction the use of deliberate misrepresentations to enable police to gather possible incriminating evidence.” Id. It also noted that there was no evidence that the recording was for security reasons rather than for evidence-gathering purposes. Id. at 757.

The court of appeals ultimately held that where “a law enforcement official lulls an arrestee into believing his conversation with another will be confidential by allowing him to speak privately with the other person in a separate room but secretly records the conversation solely for evidence-gathering purposes, the arrestee’s subjective expectation of-privacy is objectively reasonable by societal standards.” Id. Accordingly, it held that appellee had a reasonable expectation of privacy and affirmed the trial court’s suppression order. Id.

The State Prosecuting Attorney argues to this Court that the stipulation of evidence shows that the deputy did not engage in dishonesty or deliberate misrepresentations and that appellee and his co-defendant “were merely two communicants left alone in a room with no legitimate expectation of privacy.” The State Prosecuting Attorney concludes that, since the record reflects no dishonesty that should cause or lull a suspect into believing his conversation with another will be confidential, appellee’s “subjective expectation of privacy in the police interview room was not one that society is prepared to recognize as objectively reasonable.” In response, appellee argues that he and his co-defendant did indeed have a legitimate expectation of privacy, as they were legitimately in the place where their oral communication was intercepted, they took normal precautions customarily taken by those seeking privacy before the oral communication began, they put the place to a clearly private use, and their claim of privacy is consistent with historical notions of privacy.

In reviewing issues of search and seizure, we give great deference to a trial court’s rulings on questions of historical fact and questions that apply law to facts and turn on evaluations of credibility and demeanor. We review de novo questions that apply law to facts and do not turn upon credibility and demeanor. Johnson v. State, 68 S.W.3d 644, 652-53 (Tex.Crim.App.2002). In this case, the issue of the propriety of the trial court’s suppression of the recorded conversation is a question of law which does not turn on credibility or demeanor, and we will review it de novo.

The United States Supreme Court has held “that society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell[.]” Hudson v. Palmer, 468 U.S. at 525-26, 104 S.Ct. at 3200, 82 L.Ed.2d at 402. The Court added that it “believe[d]-that it is accepted by our society that ‘[l]oss of freedom of choice and privacy are inherent incidents of confinement.’ ” Id., 468 U.S. at 528, 104 S.Ct. at 3201, 82 L.Ed.2d at 404, quoting Bell v. Wolfish, 441 U.S. 520, 537, 99 S.Ct. 1861, 1873, 60 L.Ed.2d 447, 467 (1979).

Based upon the parties’ agreed statement of the case, we do not agree with the court of appeals’ conclusion 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. This is not a situation where a suspect was threatened, tricked, or cajoled into waiving his Fifth Amendment self-incrimination privilege, nor does this case involve a custodial interrogation of appellee. See Miranda v. Arizona, 384 U.S. 436, 476, 86 S.Ct. 1602, 1629, 16 L.Ed.2d 694, 725 (1966).

Although appellee was in custody, the complained-of statement was not made in response to interrogation by law enforcement but rather while appellee was alone with his co-defendant, nor was he conferring with his attorney while in police custody. Appellee claims a subjective expectation of privacy and asserts that it is one that society recognizes as legitimate. While appellee may well have had a subjective expectation, the disposi-tive issue is societal recognition of that expectation as reasonable. There is no allegation or evidence of oral assurances of privacy.

The statement merely recites that the deputy, apparently at the request of appellee’s co-defendant, allowed the two to confer while in custody. Loss of privacy is an inherent incident of confinement. Hudson, supra. The circumstances here are comparable to an arrestee being placed in a jail cell; any statements made to another occupant of that cell may be admissible unless the cellmate is acting as an agent of the state.

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. Having found no legitimate expectation of privacy in such conversations, we hold that the excluded statements were admissible. Accordingly, the judgment of the court of appeals is reversed, and this cause is remanded to the court of appeals for proceedings consistent with this opinion.

MEYERS, J., filed a concurring, opinion in which PRICE, J., joined.