State v. Wood , 2023 UT 15 ( 2023 )

2023 UT 15IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Appellee,
v.
EUGENE VINCENT WOOD,
Appellant.
No. 20210470
Heard October 5, 2022
Filed June 29, 2023
On Appeal of Interlocutory Order
Third District, Salt Lake
The Honorable James Blanch
Nos. 191910007, 201905761
Attorneys:
Sean D. Reyes, Att‘y Gen., Jeffrey D. Mann, Asst. Solic. Gen.,
Bronwen L. Dromey, Salt Lake City, for appellee
Nathalie S. Skibine, Ralph W. Dellapiana, Salt Lake City, for
appellant
JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE PEARCE, JUSTICE
HAGEN, and JUSTICE POHLMAN joined.
JUSTICE PETERSEN, opinion of the Court:
INTRODUCTION
¶1 The question before us in this interlocutory appeal is
whether the Salt Lake County Jail (jail) violated Utah‘s
Interception of Communications Act (Interception Act or Act),
which generally prohibits wiretapping, when it recorded calls
made by inmate Eugene Vincent Wood on the jail‘s telephones.
See UTAH CODE §§ 77-23a-1 to -16. The State wants to use some of
the recordings as evidence against Wood in court. Wood moved
to suppress the recordings, arguing that the jail‘s interception of
STATE v. WOOD
Opinion of the Court
his calls violated the Interception Act. If Wood is correct, then the
Act requires that the recordings be suppressed.
¶2 As a matter of first impression, we hold that the jail‘s
monitoring and recording of Wood‘s calls did not run afoul of the
Act because it fell within the Act‘s consent exception. This
exception provides that if one of the parties to a telephone call
consents to the interception of the call, then the interception is
lawful. That is what happened here. The jail notified Wood in
numerous ways that it may record and monitor all non-legal
inmate calls. Knowing this, Wood chose to use the jail‘s phones
anyway. In doing so, he impliedly consented to the conditions the
jail had placed on the use of its phones.
¶3 Accordingly, the jail‘s interception of Wood‘s calls did
not violate the Interception Act. And the district court properly
denied his motion to suppress the recordings. We affirm.
BACKGROUND
¶4 Eugene Wood was charged with kidnapping and
assaulting his wife. In the criminal proceeding that followed, the
district court entered a pretrial protective order that prohibited
Wood from contacting his wife in any way. Despite this, Wood
made hundreds of calls to his wife from the Salt Lake County Jail.
The State alleges that during these calls, Wood threatened his
wife, pressuring her to assert her spousal privilege and to refuse
to cooperate with the prosecution. These conversations were
recorded in accordance with the jail‘s policy of recording all
inmate telephone calls, except those between inmates and
attorneys.
¶5 When it became apparent to the State that Wood‘s wife
would not cooperate with the prosecution, the State moved to
admit recordings of several phone calls between Wood and his
wife. The State also filed new charges based on the recordings:
one count of tampering with a witness; two counts of retaliation
against a witness, victim, or informant; and five counts of
violating a pretrial protective order. Wood moved to suppress the
recordings in both cases.
¶6 The district court held an evidentiary hearing on the
motion to suppress. At the hearing, the jail‘s records supervisor
testified about the jail‘s phone recording policy. She explained
that the jail contracts with a private telephone carrier, Inmate
Calling Solutions (ICS), to provide phone services to inmates. As
part of its contract, ICS records and stores all calls made by
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inmates, except calls with an attorney. And jail staff monitor these
calls to ensure facility safety. If staff learn of any suspected crimes
occurring outside the jail, they must report it to the South Salt
Lake Police Department; and if they learn of any suspected crimes
occurring inside the jail, they must report it to the appropriate jail
staff for further investigation.
¶7 The records supervisor also testified that she frequently
provides recordings of inmate calls to law enforcement officers
upon request. This disclosure process is governed by Utah‘s
Government Records Access and Management Act (GRAMA). See
UTAH CODE §§ 63G-2-101 to -901.
¶8 Finally, the records supervisor testified that inmates are
warned in three different ways that their calls may be recorded
and monitored. First, new inmates receive a handbook, which
explains that ―the jail may monitor and/or record telephone calls,
except those made to a prisoner‘s attorney.‖ Second, a placard
located next to the telephones warns inmates that phone calls are
recorded and subject to monitoring at any time. And third, a
recording is played to both the inmate and the outside party
before each call, which again notifies the inmate that the call is
being recorded and is subject to monitoring.
¶9 To obtain the recordings at issue here, a deputy district
attorney, through his paralegal, requested recordings of Wood‘s
calls from the jail. He used GRAMA Form 007, ―Prisoner
Telephone Monitoring System Recording Request Form,‖ in
which he confirmed that he represented a government entity
enforcing the law and that the recordings were necessary for an
investigation. And the jail provided him with the recordings.
¶10 In response to the evidence adduced at the hearing,
Wood argued that the deputy district attorney‘s failure to obtain a
warrant or court order for the recordings violated the Interception
Act. The State countered that a warrant was not necessary because
the relevant phone calls fell under two exceptions to the Act: the
consent exception and the law enforcement exception.
¶11 The district court agreed with the State‘s reasoning and
denied Wood‘s motion to suppress. Regarding the consent
exception, the court explained that Wood ―impliedly consented to
the interception of the phone calls by engaging in the calls despite
[knowing] they could be intercepted.‖ And the court also
concluded that the calls were exempt under the law enforcement
exception. See id. § 77-23a-3(8)(a)(ii).
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STATE v. WOOD
Opinion of the Court
¶12 Wood petitioned for permission to appeal the court‘s
interlocutory order denying his motion to suppress, which we
granted. The cases have been consolidated. On appeal, Wood
challenges the district court‘s conclusions that (1) he consented to
the recording and disclosure of his jail calls, (2) the Interception
Act‘s law enforcement exception applied to the phone calls, and
(3) the recordings could be disclosed to the deputy district
attorney without a warrant.
¶13 We have jurisdiction under Utah Code section 78A-3-
102(3)(h).
STANDARD OF REVIEW
¶14 ―[T]he interpretation of a statute presents a question of
law that we review for correctness.‖ State v. Evans, 2021 UT 63,
¶ 20, 500 P.3d 811 (cleaned up). Thus, ―we accord the trial court‘s
legal conclusion[s] no particular deference on review.‖ State v.
Mitchell, 779 P.2d 1116, 1123 (Utah 1989) (cleaned up).
ANALYSIS
¶15 We first address Wood‘s argument that suppression was
required because the jail violated the Interception Act when it
recorded his calls and then disclosed them to the deputy district
attorney. Wood asserts that neither the consent exception nor the
law enforcement exception apply here. But we agree with the
district court that Wood impliedly consented to the interception of
his calls. We conclude that the jail sufficiently notified Wood that
phone calls may be recorded and monitored. And by using the
phones with this knowledge, Wood implicitly consented to the
conditions the jail had placed upon use of its phones.
Accordingly, we conclude that the interception falls within the
Interception Act‘s consent exception. And consequently, the jail‘s
disclosure of the calls to the deputy district attorney did not
offend the statute.
¶16 Because we conclude that the consent exception applies
here, we need not consider Wood‘s second argument regarding
the applicability of the law enforcement exception.
¶17 Next, we consider Wood‘s argument that another statute,
Utah Code section 77-23b-4, provides an alternative basis to
suppress the recordings because it independently required the
State to get a warrant to obtain the recordings from the jail. We
reject this argument because this statute does not provide for
suppression as a remedy, and Wood has not persuaded us that it
applies in these circumstances.
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¶18 Accordingly, we affirm the district court‘s denial of
Wood‘s motion to suppress the recordings of his jail calls.
I. UTAH‘S INTERCEPTION ACT DOES NOT REQUIRE
SUPPRESSION OF THE RECORDINGS OF WOOD‘S CALLS
¶19 Wood‘s primary argument is that the district court
should have suppressed the recordings of his calls because the jail
violated the Interception Act when it recorded and disclosed
them. He asserts that because his calls were illegally intercepted
and disclosed, the Interception Act prohibits the use of the
contents of those calls in any court proceeding.
¶20 This is a question of first impression for this court.
However, numerous federal appellate courts have addressed
similar questions in the context of a nearly identical federal
statute.
¶21 Utah‘s Interception Act mirrors Title III of the federal
Omnibus Crime Control and Safe Streets Act (Wiretap Act). See
UTAH CODE §§ 77-23a-1 to -9; 18 U.S.C. §§ 2510–2523. Both statutes
have nearly identical language making it ―unlawful for a person
to ‗intercept‘ ‗any wire, oral, or electronic communication‘‖
without court-ordered authorization. Smith v. U.S. Dep’t of Just.,
251 F.3d 1047, 1049 (D.C. Cir. 2001) (quoting 18 U.S.C. § 2511);
accord UTAH CODE § 77-23a-4(1)(b)(i) (making it unlawful for a
person ―to intercept any wire, electronic, or oral
communication‖).
¶22 Both statutes define ―intercept‖ as the ―acquisition of the
contents of any wire, electronic, or oral communication through
the use of any electronic, mechanical, or other device.‖ UTAH
CODE § 77-23a-3(10); 18 U.S.C. § 2510(4). This language effectively
creates a general prohibition against all forms of wiretapping,
with some specific exceptions. See, e.g., UTAH CODE § 77-23a-
4(7)(a); 18 U.S.C. § 2511(2)(c) (consent exception); UTAH CODE
§ 77-23a-3(8)(a)(ii); 18 U.S.C. § 2510(5)(a)(ii) (law enforcement
exception).
¶23 And if a communication is intercepted in violation of the
Utah or federal statute, both laws prohibit the disclosure and use of
the contents of that communication. UTAH CODE § 77-23a-
4(1)(b)(iii)–(iv); 18 U.S.C. § 2511(1)(b)–(e). Both statutes also allow
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STATE v. WOOD
Opinion of the Court
an ―aggrieved person‖1 to move for suppression of the contents of
an unlawfully intercepted communication. UTAH CODE § 77-23a-
10(11)(a)(i); 18 U.S.C. § 2518(10)(a).
¶24 As a threshold matter, Utah‘s Interception Act plainly
governs the question before us. It covers interceptions of ―wire
communications.‖ And those are the factual circumstances here.
¶25 Wood‘s telephone calls from the jail‘s phones constituted
―wire communications‖ under the Interception Act. The Act
defines a ―wire communication‖ as
any aural transfer 2 made . . . through the use of
facilities for the transmission of communications by
the aid of wire, cable, or other like connection
between the point of origin and the point of
reception . . . furnished or operated by any person
engaged as a common carrier 3 in providing or
operating these facilities for the transmission of
intrastate, interstate, or foreign communications.
UTAH CODE § 77-23a-3(19)(a). A ―wire communication‖ ―includes
the electronic storage of the communication.‖ Id. § 77-23a-3(19)(b).
¶26 And when the jail recorded Wood‘s phone calls, it
―intercepted‖ a wire communication as contemplated by the Act.
The jail, through its contractor, ―acqui[red] . . . the contents of a[]
wire . . . communication through the use of any electronic,
mechanical, or other device,‖ thereby ―intercepting‖ those
contents. Id. § 77-23a-3(10). Further, nothing in the text of the
__________________________________________________________
1 The Interception Act defines ―aggrieved person‖ as ―a person
who was a party to any intercepted wire, electronic, or oral
communication, or a person against whom the interception was
directed.‖ UTAH CODE § 77-23a-3(1).
2 The Interception Act defines an ―aural transfer‖ as ―any
transfer containing the human voice at any point between and
including the point of origin and the point of reception.‖ Id. § 77-
23a-3(2).
3 The Interception Act defines a ―communications common
carrier‖ as ―any person engaged as a common carrier for hire in
intrastate, interstate, or foreign communication by wire or radio,
including a provider of electronic communication service.‖ Id.
§ 77-23a-3(3).
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Interception Act suggests that its protections should be withheld
from incarcerated individuals.
¶27 Accordingly, the Interception Act controls our analysis in
this case. And because the Act generally prohibits wiretapping, at
least one of its exceptions must apply here for the jail‘s
interception of Wood‘s calls to be lawful. The State argues that
two of the statute‘s exceptions fit these circumstances: the consent
exception and the law enforcement exception.
¶28 We agree with the district court that the consent
exception applies here. And because this is dispositive, we limit
our analysis to that exception and do not address whether the law
enforcement exception might also apply.
¶29 The Interception Act‘s consent exception generally
provides that when one party to a communication consents to the
interception of that communication, the statute is not violated.
The Interception Act states in relevant part that a person ―may
intercept a wire, electronic, or oral communication if that person is
a party to the communication or one of the parties to the
communication has given prior consent to the interception.‖ Id. § 77-
23a-4(7)(a) (emphasis added).
¶30 Although we have not previously interpreted the scope
of the consent exception in Utah‘s Interception Act, many federal
appellate courts have interpreted identical language in the
Wiretap Act. We find their analysis to be helpful and
―instructive.‖ State v. Bradshaw, 2006 UT 87, ¶ 11, 152 P.3d 288.
¶31 Nine federal circuits have interpreted the consent
exception in cases involving prison monitoring of inmate phone
calls.4 And all but one have concluded that the consent exception
applied. The lone exception is the Seventh Circuit, where the court
was hesitant to apply the consent exception—but still found the
recordings to be lawful under the law enforcement exception. See
__________________________________________________________
4 See United States v. Footman, 215 F.3d 145 (1st Cir. 2000);
United States v. Workman, 80 F.3d 688 (2d Cir. 1996); United States v.
Hodge, 85 F. App‘x 278 (3d Cir. 2003); United States v. Hammond,
286 F.3d 189 (4th Cir. 2002); United States v. Jones, 839 F.2d 1041(5th Cir. 1988); United States v. Daniels, 902 F.2d 1238 (7th Cir.
1990); United States v. Horr, 963 F.2d 1124 (8th Cir. 1992); United
States v. Van Poyck, 77 F.3d 285 (9th Cir. 1996); United States v.
Verdin-Garcia, 516 F.3d 884 (10th Cir. 2008).
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STATE v. WOOD
Opinion of the Court
United States v. Daniels, 902 F.2d 1238, 1244–45 (7th Cir. 1990); see
also United States v. Feekes, 879 F.2d 1562, 1565–66 (7th Cir. 1989).
Accordingly, no federal appellate court has concluded that
recordings of inmate calls should be suppressed because their
interception violated the federal Wiretap Act.5
¶32 Each federal circuit has its own nuanced take on the
consent exception, and each tailors its analysis to the specific facts
before it. But upon reading the cases as a whole, an overarching
consensus emerges: ―It is generally accepted that a prisoner who
places a call from an institutional phone with knowledge that the
call is subject to being recorded has impliedly consented to the
recording.‖ United States v. Faulkner, 439 F.3d 1221, 1224 (10th Cir.
2006) (cleaned up).6 Further, consent may be ―express or may be
implied in fact from surrounding circumstances indicating that
the defendant knowingly agreed to the surveillance.‖ United States
v. Van Poyck, 77 F.3d 285, 292 (9th Cir. 1996) (cleaned up). To
determine whether inmates voluntarily consented to the prison‘s
surveillance of their phone calls, the circuit courts paid special
attention to the ways in which inmates were notified of the
recording or monitoring of their phone calls.
¶33 In United States v. Verdin-Garcia, for example, the Tenth
Circuit found that the defendant had impliedly consented based
on the following facts. 516 F.3d 884, 894 (10th Cir. 2008). The
prison had informed Verdin-Garcia in three ways that his calls
would be recorded and monitored: (1) he received a handbook at
inmate orientation, which stated that ―all calls may be
monitored‖; (2) there were ―prominent signs next to the
telephones at the prison,‖ which stated in both English and
Spanish that ―[a]ll calls may be recorded/monitored‖; and (3)
anytime an inmate placed a call from the facility, a recorded
message would prompt the caller ―to select English or Spanish,
and then inform[] the caller in the language of his choice that all
calls are subject to being monitored and recorded.‖ Id. Given this
evidence, the Tenth Circuit concluded that Verdin-Garcia had
__________________________________________________________
5 We address the Seventh Circuit‘s concerns in more detail in a
later section. See infra ¶¶ 37–39.
6 To support this proposition, the Faulkner court cited Footman,
215 F.3d at 154; United States v. Amen, 831 F.2d 373, 378–79 (2d Cir.
1987); Hammond, 286 F.3d at 192; Horr, 963 F.2d at 1126; Van Poyck,
77 F.3d at 292; and Faulkner, 439 F.3d at 1224.
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consented to the recording of his phone calls. The court noted that
the use ―of the prison telephone is a privilege, not a right.‖ Id. at
895. And it is a privilege that may come with conditions attached
to it—such as the recording and monitoring of all calls. Id. So long
as the inmate was made aware of the conditions through proper
notifications, the court concluded that an inmate‘s ―decision to
take advantage of that privilege implies consent to the conditions
placed upon it.‖ Id. Thus the Tenth Circuit had ―no hesitation in
concluding that a prisoner‘s knowing choice to use a monitored
phone is a legitimate ‗consent‘ under the Wiretap Act.‖ Id. at 894
(cleaned up). We find this analysis persuasive and particularly
relevant to the facts of this case.
¶34 We hold that for the consent exception to apply in the
correctional facility context, consent may be either express or
implied. Concerning implied consent, the record must at least
show that (1) the correctional facility sufficiently warned the
inmate that the phone lines may be recorded or monitored (or of
any other relevant conditions), and (2) the inmate chose to use the
facility‘s phone lines anyway. See id. (―A prisoner‘s voluntarily
made choice—even a Hobson‘s choice—to use a telephone he
knows may be monitored implies his consent to be monitored.‖).
We do not require correctional facilities to provide notice in a
particular manner. Rather, an implied consent analysis will
necessarily be fact specific and vary from case to case based on the
notice that was actually provided.
¶35 We conclude that the circumstances here satisfy the
consent exception. The jail sufficiently notified Wood that it may
record and monitor his calls. Upon his arrival at the jail, the jail
provided Wood with an inmate handbook that explained that the
jail may monitor and record all telephone calls (except those
between an inmate and an attorney). Additionally, every time
Wood made a phone call, he was reminded of this by a placard
next to the telephones and a message at the beginning of the call.
And knowing this, Wood chose to use the jail‘s phones anyway.
Like the Tenth Circuit, we have ―no hesitation in concluding that
[Wood‘s] knowing choice to use a monitored phone is a legitimate
‗consent‘‖ under the Interception Act. Id.
¶36 Wood makes several arguments as to why his knowing
use of the jail‘s monitored phones should not constitute consent.
First, he reasons that acquiescing to the jail‘s conditions differs
from consenting to the jail‘s conditions. But we find this argument
unpersuasive. As we have explained, by using a jail phone subject
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STATE v. WOOD
Opinion of the Court
to the explicit conditions placed upon such use, Wood implicitly
accepted those conditions. And implicit consent is still consent.
¶37 Wood next argues that the coercive nature of being
imprisoned, generally speaking, forecloses the possibility of truly
voluntary consent. To this end, Wood echoes concerns raised by
the Seventh Circuit—the lone circuit hesitant to apply the consent
exception in these circumstances.
¶38 In United States v. Feekes, the Seventh Circuit ultimately
exempted recorded inmate phone calls from the Wiretap Act
under the law enforcement exception. 879 F.2d at 1565–66. But the
court also included the following dictum in response to the
contention that the consent exception also applied because the
prisoners had been notified that their calls would be monitored:
―To take a risk is not the same thing as to consent. The implication
of the argument is that since wiretapping is known to be a widely
employed investigative tool, anyone suspected of criminal
(particularly drug) activity who uses a phone consents to have his
phone tapped . . . .‖ Id. at 1565.
¶39 We agree with the Seventh Circuit that engaging in crime
does not in itself imply consent to a wiretap. But those are not the
facts here. Nor, as the State points out, is this case about the
―dystopian hypothetical world‖ that the Seventh Circuit
hypothesized, where illegal wiretapping is so widespread that
consent is implied for anyone who uses a phone. This case is
about an inmate who received multiple, specific warnings that the
phone lines available to him may be recorded and monitored. It is,
of course, true that Wood did not have the opportunity to use an
alternative untapped phone line. But ―prison inmates have few
expectations of privacy in their communications‖ because ―loss of
some choice is a necessary consequence of being confined.‖
Faulkner, 439 F.3d at 1224 (cleaned up). So the relevant question is
not whether Wood freely chose this phone line over an untapped
alternative. Instead, ―[t]he real issue is whether imposition of a
condition is acceptable, so that a choice subject to that condition is
considered a voluntary, consensual one.‖ Id. at 1224–25 (cleaned
up).
¶40 Given the undeniable security concerns implicated by
inmates‘ communications with the outside world, the jail‘s
surveillance policy was a reasonable condition placed on inmates‘
phone usage. We agree with the majority of federal appellate
courts that have considered this question and conclude that an
inmate‘s choice ―to use a telephone he knows may be monitored
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implies his consent to be monitored.‖ Verdin-Garcia, 516 F.3d at
894.
¶41 Additionally, Wood argues that the notice provided by
the jail was insufficient. He observes that the jail‘s notices failed to
specifically warn inmates that if they used the phones, it would be
assumed that they were consenting to the jail‘s surveillance.
Wood contends that ―the notices in the jail did not go as far as the
notices in United States v. Amen, which stated that calls were
monitored and taped and that ‗use of institutional telephones
constitutes consent to this monitoring.‘‖ (Quoting United States v.
Amen, 831 F.2d 373, 379 (2d Cir. 1987).)
¶42 Wood also points out that the notices failed to warn
inmates that the recordings would be used in disciplinary or
criminal matters. To this end, Wood argues that the notices ―were
also short of the notice in United States v. Rivera, which advised
that phone calls were ‗subject to recording, monitoring and
criminal, civil and/or administrative disciplinary actions.‘‖
(Quoting United States v. Rivera, 292 F. Supp. 2d 838, 840 (E.D. Va.
2003).)
¶43 But even though other cases have involved warnings that
are more comprehensive than the ones here, it does not follow
that those cases describe the only way of providing notice or that
the jail‘s warnings in this case were insufficient. As noted earlier,
we do not mandate a particular formula for warning inmates
about phone monitoring. Other more comprehensive notices—like
the ones found in Amen and Rivera—are possibly an improvement
on the warnings offered here. But they are not the minimum
threshold that all notices must meet. And their existence does not
render the jail‘s warnings insufficient. In fact, Wood received
warnings that were nearly identical to those found in Verdin-
Garcia, in which the Tenth Circuit concluded there was implied
consent. 516 F.3d at 894. We agree with the Tenth Circuit‘s
analysis and conclude that the jail‘s notices were sufficient in this
case. That said, we encourage correctional facilities in Utah to
provide notice of their telephone usage policies that is as clear,
understandable, and comprehensive as possible.
¶44 Finally, Wood argues that suppression is still required
because he did not consent to the jail‘s disclosure of his calls to the
State. He notes that the jail‘s notices did not mention anything
about disclosure or other use of the recordings.
¶45 But Wood‘s consent to the disclosure of the recordings
was not required. The Interception Act prohibits a person from
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STATE v. WOOD
Opinion of the Court
disclosing the contents of a wire communication only where the
person ―know[s] or [has] reason to know that the information was
obtained through the interception of a wire . . . communication in
violation of‖ the Act. UTAH CODE § 77-23a-4(1)(b)(iii). As we have
established, the jail‘s recording of Wood‘s phone calls did not
violate the Act because he impliedly consented to the recording.
Accordingly, the Act‘s prohibition on disclosure of unlawfully
obtained information is not applicable.
¶46 Additionally, because the recordings were obtained in an
authorized manner, other provisions of the Act may serve to
allow the disclosure and use of the recordings in particular
circumstances. See, e.g., id. § 77-23a-9(3) (stating that information
resulting from an authorized intercept can be admitted in judicial
proceedings and disclosed ―while giving testimony under oath or
affirmation in any proceeding,‖ so long as it was obtained as a
result of an intercept conducted in accordance with the provisions
of the Act).
¶47 In sum, we agree with the district court that Wood
impliedly consented to the recording of his phone calls.
Accordingly, the jail did not violate the Interception Act when it
recorded and disclosed his calls to the deputy district attorney.
And the district court correctly denied Wood‘s motion to suppress
on this basis.7
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7 Wood also argues that inmates should be warned that
whatever they say on a jail telephone may be used against them,
similar to the Miranda requirement that a suspect must be warned
that ―anything he says can be used against him in a court of
law.‖ Miranda v. Arizona, 384 U.S. 436, 479 (1966). But Miranda is
neither analogous to nor controlling in this case. The Supreme
Court in Miranda specified that the decision seeks to protect
individuals from ―being compelled to incriminate themselves‖
after being taken into custody because of ―inherently compelling
pressures which work to undermine the individual‘s will to resist
and to compel him to speak.‖ Id. at 467. But the ―inherently
compelling pressures‖ of an interrogation are simply not present
during phone calls to friends and family. So Miranda does not
provide an apt analogy.
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II. CHAPTER 23b DOES NOT REQUIRE SUPPRESSION OF THE
RECORDINGS OF WOOD‘S CALLS
¶48 Wood‘s final argument is that even if he consented to the
jail‘s surveillance, a separate chapter in the Utah Code—Chapter
23b of Title 77—independently required the State to ―get a
warrant to require the disclosure of the jail calls.‖ But this
argument fails because Chapter 23b does not provide the remedy
that Wood seeks—suppression. And even if it did, Wood has not
explained why this chapter applies to the circumstances here.
¶49 As a threshold matter, even if Wood were correct that
Chapter 23b required the State to get a warrant to obtain the
recordings from the jail, it would not require reversal of the
district court‘s order denying Wood‘s motion to suppress. This is
because Chapter 23b contemplates only two remedies: (1) criminal
charges and (2) a civil action with its associated equitable or
declaratory relief, damages, and costs and fees. UTAH CODE §§ 77-
23b-2(2), -8(2). The suppression of evidence in a criminal
proceeding is not an available remedy. So even if the State had
violated Chapter 23b, that would not provide an alternative basis
to suppress the recordings.
¶50 Moreover, Wood has not explained why Chapter 23b
applies to the circumstances here. It is not part of the Interception
Act. It is a separate chapter within Title 77 titled ―Access to
Electronic Communications.‖ The portion relied upon by Wood
states, ―A government entity may only require the disclosure by a
provider of electronic communication services of the contents of
an electronic communication that is in electronic storage in an
electronic communication system pursuant to a warrant issued
under the Utah Rules of Criminal Procedure or an equivalent
federal warrant.‖ Id. § 77-23b-4(1). According to Wood, because
ICS is a ―provider of electronic communications‖ that kept the
recordings ―in electronic storage on a server,‖ the State needed a
warrant to obtain the recordings held on that server.
¶51 But it is not clear that this provision applies to telephone
calls—at least, Wood has not explained how it does. The
Interception Act‘s definitions of terms apply to Chapter 23(b). Id.
§ 77-23b-1(2). And as discussed, calls on the jail‘s telephones fall
within the definition of ―wire communication‖ under the Act. See
supra ¶ 25. And ―wire communication‖ also ―includes the
electronic storage of the communication.‖ See supra ¶ 25. But
Chapter 23b, including the specific provision relied upon by
Wood, involves ―the contents of an electronic communication.‖
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STATE v. WOOD
Opinion of the Court
UTAH CODE § 77-23b-4(1) (emphasis added). And under the
applicable definition, an ―electronic communication‖ specifically
―does not include . . . any wire . . . communications.‖ Id. § 77-23a-
3(5); see id. § 77-23b-1(2) (―The definitions of terms in Section 77-
23a-3 apply to this chapter.‖).
¶52 Accordingly, Wood has not persuaded us that Chapter
23b provides a basis to reverse the district court‘s denial of his
suppression motion.
CONCLUSION
¶53 We agree with the district court that Wood impliedly
consented to the jail‘s recording and monitoring of his phone
calls. Thus, the jail‘s interception of Wood‘s calls was authorized
under the Interception Act‘s consent exception. Further, Wood has
not persuaded us that Chapter 23b provides an alternative basis to
suppress the recordings. Accordingly, we conclude that the
district court correctly denied Wood‘s motion to suppress. We
affirm.
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