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A Cobb County, Ga., Superior Court has been asked to rule whether an incarcerated juvenile can give informed consent to being taped. At issue are incriminating statements allegedly made at the Powder Springs jail by then-17-year-old Heath A. Meehan in phone calls to family members. This issue is one of first impression for Georgia. No state court has ruled on whether a pre-trial detainee under the age of 18 can consent to the recording of telephone conversations. On Friday, Cobb Superior Court Judge George H. Kreeger heard the end of testimony and closing arguments on the defense motion to suppress the tapes in State v. Meehan, No. 00900289-18 (Cobb Super. Jan 28, 2000). Meehan was charged with murder in the shooting death last October of William Michael McGee Jr. He was held for about 20 hours after the shooting, which may have stemmed from a game of “chicken” or Russian roulette, according to police. According to defense attorney Jeffrey B. Bogart of Atlanta’s Bogart & Bogart, police officers held his client at the Powder Springs jail to gain evidence from the taped telephone conversations. “It can certainly be argued that they wanted to keep him there hoping that he would use the phone,” says Bogart. “They should have shipped him to Cobb.” Bogart says that pre-trial detainees usually are transported to the Cobb County jail after being booked at the Powder Springs facility. TAPE PLAYED AT HEARING Cobb County Assistant District Attorney Van Pearlberg, who is prosecuting Meehan, played the hour-and-a-half-long tape of Meehan’s phone calls during Friday’s hearing. The tape consists of calls made by Meehan to his stepbrother and father. During one telephone conversation with his father, Meehan says, “This phone is recording.” Also, when a friend of Meehan picks up the phone at his father’s house, the defendant says, “I accidentally shot Mike.” And in a call to his stepbrother, Meehan discusses the shooting and the location of the bullet in the gun’s chamber. “I thought it was at the bottom. I thought I saw it at the bottom,” he says. George R. Ference, co-counsel for the defendant, acknowledges that a sign next to the jail phone clearly stated, “This phone recording.” But Ference argued that Meehan could not consent to his phone calls being recorded because he was not yet 18. Georgia law requires a court order to intercept calls of a person under the age of 18. O.C.G.A. 16-22-66(b) requires that even with the consent of the underage party and a court order, the recordings cannot be used in the prosecution of the consenting child. According to Bogart, Meehan has a right of privacy that is guaranteed by the Georgia constitution, and infringement of this right can only occur if there is a “compelling state interest and if the infringement is carefully limited to serving only that purpose.” Also, because Meehan was a pre-trial detainee at the Powder Springs jail and was not yet convicted of any crime, he had a reasonable expectation of privacy at the jail. LAW ADDRESSES ISSUE State law addresses this issue in O.C.G.A. 16-11-62(2) which makes it unlawful for any person, through the use of “any instrument or apparatus, without the consent of all persons observed, to observe, photograph or record the activities of another which occur in any private place and out of public view.” There is a specific exception in this subsection (2) of the statute for incarcerated persons who have been charged or convicted of a crime. The exception provides that “it shall not be unlawful to use any camera, photographic equipment, videotape equipment, or other devices to observe, photograph, or record the activities” of any incarcerated person as long as that equipment is not used while the person is discussing a matter with an attorney. Bogart argues that the statute applies only to security cameras. The Georgia Legislature has amended this statute on many occasions and has not included the jailhouse exception in any other subparts except the one that addresses visual observation of activity. For this reason, argues Bogart, the legislature must have intended for the exception to be inapplicable to the telephone calls of incarcerated persons. Pearlberg argues that the notion of a jail being a private place is “an incredible leap of faith.” He notes that on three separate occasions in the phone conversations, Meehan says, “I can’t talk on the phone, dude.” The fact that he said this proves he had no expectation of privacy, says Pearlberg. Kreeger is expected to make a decision later in the week.

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