Like most police departments, Durham records audio and video of suspects while they are being interrogated by detectives. But attorney Alexander Charns alleges Durham police record private conversations, and he says that is illegal.
Charns represents Willie Hayes - who was 17 when he was arrested two years ago on an armed robbery charge.
Charns alleges that after interrogating the teen, police offered to let him speak to his mother and left the room, but then secretly recorded their conversation. Charns says state and federal law prohibits the non-consensual, secret recording of private conversations without a valid surveillance warrant based upon probable cause.
"They can record inside the room, as long as they're present- just as you cannot wire me up secretly, send me home and listen to everything I say to my kids, that would be a crime," Charns told ABC11 Wednesday.
Hayes had waived his Miranda rights before the interrogation, but the city admitted Wednesday there was no consent form for the secret recordings.
Durham Police Chief Jose Lopez and city attorneys wanted Charns subpoena for information regarding the recording denied, but in court Wednesday, the judge ordered DPD to turn over all rules, regulations, emails, or texts tied to what Charns called the "warrantless electronic surveillance" of suspects.
But, the judge declined to order police to turn over the actual recordings.
Charns is an outspoken critic of Durham police policy. He's also representing the family of Jesus Huerta -the Durham who died in the back of a police cruiser in November in an apparent suicide.