Father argues his minor daughter wasn’t old enough to consent to record a conversation against him


In 2006, Charles Bankston’s 16 year old daughter, Carley, returned from working her shift at a nearby fast food restaurant and took a bath. After her bath, Carley went into her room and got into her bed to try to fall asleep. Her father entered the room shortly afterward, held her down, and assaulted her.

Carley claims that Bankston raped her during the assault. She remembered hearing a crackling sound that she could not identify when her father first held her down. She stated that she later found a condom wrapper in her bed. The next morning, Bankston asked Carley if she remembered anything from the night before, and she told him that she did not.

Approximately two months later, Carley finally told her mother, Margaret, about the assault. Margaret had been away at the time of the assault caring for her sick father. Margaret became angry and upset and confronted Bankston about the incident. Bankston admitted to his wife that he had touched and fondled Carley, but he denied having raped her.

At the time the crime was reported to law enforcement officers, Carley was living with her aunt, who called the Montgomery County Sheriff’s Department. Deputy David Johnson investigated the crime and interviewed Carley. With Carley’s permission and with a social worker present, Johnson recorded a phone call between Carley and Bankston in which Bankston made incriminating statements. Bankston admitted in the conversation that he had digitally and orally penetrated Carley, but he again denied that he had raped her.

Deputy Johnson arrested Bankston, who waived his Miranda rights and admitted that he went into the room where she was resting and touched her in the wrong place. Bankston admitted that he digitally and orally penetrated Carley, but he continued to deny that he penetrated her with his penis.

He was convicted of two counts of sexual battery and sentenced to 30 years. On appeal, he argued 1) Carley wasn’t old enough to consent to making a recorded call and 2) since his arrest was based on that call, his statements should be suppressed. MCOA affirmed.


A. Bankson lacks standing

We find that Bankston has no standing to argue that Carley could not consent to having her conversation recorded. In Rakas v. Illinois, 439 U.S. 128 (1978), the U.S. Supreme Court said that we determine the issue of standing after a two part inquiry: (1) whether the defendant had a subjective expectation of privacy in the place searched; and (2) whether, from society’s perspective, that expectation was reasonable.

Bankston had no reasonable expectation of privacy in the phone conversation between himself and Carley.

In Casas, police officers recorded the conversations between Casas and an acquaintance, Price, regarding a drug sale. Price consented to the officers eavesdropping on the conversations; therefore, the agents did not have to seek a court order to record the exchange between Casas and Price. MCOA cited Everett as rationale that Casas had no reasonable expectation of privacy.

In Everett v State, 248 So. 2d 439 (Miss. 1971), the MSC said that electronic surveillance, bugging, does not tread upon the constitutional rights of the Fourth Amendment when the consent of one of the parties is first obtained. The expectation of privacy, though perhaps shaken by the mistaken belief that a person to whom one voluntarily confides will not reveal the conversation does not reach constitutional proportions. One contemplating illegal activities must realize and risk that his companions may be reporting to the police.

Likewise, in our case, Bankston should have realized that the victim of his crime might have been reporting the crime to police officers. Carley initiated the phone call to her father. She called him, turned on the phone’s speaker phone option, and allowed the deputy and social worker to listen. The phone call was recorded with Carley’s consent, and Bankston lacks standing to challenge the validity of her consent.

B. Probable cause to arrest Bankston

Even without the evidence from the recorded telephone call, Johnson had probable cause to arrest Bankston. Carley’s allegation alone gave law enforcement officers probable cause for an arrest warrant.

In Conerly, MSC said to obtain an arrest warrant for a felony, either with or without a warrant, a police officer must have (1) reasonable cause to believe that a felony has been committed; and (2) reasonable cause to believe that the person proposed to be arrested is the one who committed it.

In Jones v. State, 504 So. 2d 1196 (Miss. 1987), the MSC held that the statements of a victim were enough to create probable cause for a search and arrest warrant. A rape victim and her friend, who had escaped the attacker, identified Jones from a photo array. The women later identified Jones from a photo lineup. Jones cited Walker as rationale for its decision.

In Walker v. State, 473 So. 2d 435 (Miss. 1985), MSC held that where information constituting the underlying facts and circumstances of an affidavit is furnished by an eyewitness rather than an informant, there is no need to show the party supplying the information was a credible person. The rationale for the victim or eyewitness exception is that the statements of such eyewitnesses are based on their own observation and thus are not likely to reflect idle rumor of irresponsible conjecture.

Thus, even without the recorded phone call between Bankston and Carley, Johnson had probable cause for an arrest warrant. Bankston was given his Miranda warnings at the time of his arrest and before he was questioned at the sheriff’s department. Finding that the trial judge did not abuse his discretion in allowing the statements into evidence, this issue is without merit.