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Can Something Overheard During A Pocket Dial Be Used Against You In Court?

Do you own a cell phone? If you do, you've probably accidentally pocket dialed (sometimes known as a "butt dial") someone at least once. Unfortunately, whatever gets overheard when you do that can (and probably will) be used against you in court.

It happens more often than people realize.

The news is peppered with stories of criminals who get caught -- and convicted -- because they didn't think to lock their phones before they put them in their pockets. There have been convictions in a varied array of criminal offenses.

For example, 3 Ohio men accidentally dialed 911 and spent the next several minutes discussing how to shoot up drugs while the 911 operator listened in. A short while later, all three found themselves under arrest for various drug offenses.

A couple Florida men pocket dialed their former employer -- the call went to the company's voice mail, which recorded a lengthy discussion between the men on how to best pawn the $8,000 worth of equipment they'd stolen. Even murderers have been known to make unintentional confessions after pocket dialing the police.

There's nothing "private" about an accidental phone call.

Are these accidental confessions of guilt or incriminating statements admissible in court? Absolutely.

In a landmark ruling in 2015, the Sixth Circuit U.S. Court of Appeals determined that pocket dialers (or accidental callers of any kind) are entirely responsible for what they're overheard saying.

The case had to do with a civil lawsuit that was filed against an employee who was pocket dialed by one of her bosses. She then overheard an hour and a half's worth of conversation in which her boss discussed ways to illegally discriminate (and hopefully get rid of) another of her employers. She recorded the conversation. Her boss tried to sue her for listening in on his conversations under the Electronic Communications Privacy Act (ECPA) of 1968 and the Wiretap Act of 1968.

The ECPA and Wiretap Act are the reason that many companies will warn callers that their telephone calls might be "monitored" (or recorded).

The court determined that listening in on the call and recording wasn't a violation of the law because a person can easily prevent "pocket calls" by simply by locking his or her phone. If they don't, they lose the expectation of privacy.

The lesson for everyone is this: if you don't want your conversation overheard because it is of a sensitive (or potentially illegal) nature, take steps to secure your phone so that you don't accidentally broadcast your actions or intentions to someone else. If you do end up making an unfortunate call from your pocket, the court won't be sympathetic.

For more information, contact a criminal defense attorney like Andrew H P Norton in your area.