PEOPLE v. RODRIGUEZ (2004)

Judgment, Supreme Court, New York County (James A. Yates, J.), rendered February 7, 2003, convicting defendant, after a nonjury trial, of criminal possession of a controlled substance in the first and third degrees, and sentencing him to an aggregate term of 15 years to life, unanimously affirmed.

 The court properly denied defendant's suppression motion.   There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ).   During the processing of an arrest, the arrestee's cell phone was on a table along with other property recovered from his person.   When the phone rang, the arrestee volunteered “that is probably the guy with the stuff” and a police officer, suspecting a drug deal, answered the phone.   Defendant, thinking that he was speaking to the arrestee, implicated himself in a drug transaction.   The arrestee gave police a description of defendant and, through subsequent calls by defendant to the cell phone, the police set up a meeting and arrested defendant.

We reject defendant's argument that the officer's actions in answering the cell phone and conversing with defendant constituted unlawful warrantless interception of a telephone communication.  18 USC § 2511(2)[c] makes it lawful for “a person acting under color of the law to intercept a wire, oral, or electronic conversation, where such person is a party to the conversation or one of the parties to the communication has given prior consent to such interception.”   Here, because a police officer was a party to the conversations on the arrestee's cell phone, and was acting under color of law based on that person's statement that a drug deal was in progress, there was no unlawful interception (see United States v. Passarella, 788 F.2d 377 [6th Cir.1986];  United States v. Vasquez, 1999 WL 33604504, 1999 U.S. Dist. LEXIS 13301 [N.D.Ill. 1999] ). The officer's failure to identify himself to defendant did not render his conduct unlawful (see Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 [1966];  Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 [1966];  Passarella, 788 F.2d at 380).

 Similarly, there was no constitutional violation.   Defendant, the caller, voluntarily chose to speak to the person answering the phone, assuming the risk that it was not the person he intended to speak with;  he had no legitimate privacy interest in the conversations he unwittingly chose to have with the officer;  and he had no standing to challenge the police action of answering the arrestee's phone (see United States v. Congote, 656 F.2d 971 [5th Cir.1981];  United States v. Seinfeld, 632 F.Supp. 622 [E.D.N.Y.1986] ).