Opinion
March 27, 1995
Appeal from the Supreme Court, Rockland County (Stolarik, J.).
Ordered that the order is affirmed, with costs.
The plaintiff, a police officer, commenced the present action to recover damages, inter alia, for an alleged violation of his constitutional rights due to the interception and taping of a telephone conversation between him and another police officer over police telephone lines. It is uncontroverted that the plaintiff knew that the police telephone lines were monitored.
The Supreme Court dismissed all of the plaintiff's complaint except the second cause of action to recover damages for violation of the plaintiff's constitutional rights. Thereafter, in the order appealed from, the Supreme Court dismissed the remainder of plaintiff's complaint. We now affirm.
If one party to a telephone conversation consents to its being taped, the other party cannot argue that his rights have been violated (see, United States v. Cafaro, 480 F. Supp. 511). Further, a caller's consent can be inferred from the facts and circumstances surrounding the recording (see, People v. Tabora, 139 A.D.2d 540; United States v. Amen, 831 F.2d 373, cert denied 485 U.S. 1021 [prison inmates impliedly consented to the interception of telephone calls by using prison telephones when they were on notice of an interception policy]; United States v Willoughby, 860 F.2d 15, cert denied 488 U.S. 1033 [interception of a telephone call by an inmate to a noninmate does not violate the Fourth Amendment rights of either party]). In this case, the plaintiff's consent may be inferred from his knowledge that the police telephone lines were monitored.
Moreover, the routine, nonsurreptitious recording of a police telephone line which results in the recording of a conversation of an officer who should have known that the line was monitored is in the ordinary course of the police chief's duties as a law enforcement officer and is exempt from the Omnibus Crime Control and Safe Streets Act of 1968 (see, 18 U.S.C. § 2510 et seq.; Jandak v. Village of Brookfield, 520 F. Supp. 815). Accordingly, the interception of the telephone conversation between the plaintiff and another police officer did not violate the plaintiff's constitutional rights.
The plaintiff's remaining contentions are either unpreserved for appellate review or without merit. Sullivan, J.P., Copertino, Hart and Krausman, JJ., concur.