OPINION
{1} Defendant appeals his conviction of trafficking a controlled substance, contrary to NMSA 1978, § 30-31-20 (2006). Before trial, Defendant sought to suppress tape recordings of telephone calls made in jail on the grounds that jail officials recorded his telephone conversations in violation of his right to privacy under the Abuse of Privacy Act, NMSA 1978, §§ 30-12-1 to -11 (1963, as amended through 1979). The district court denied Defendant’s motion. In addition to asserting Abuse of Privacy Act violations, Defendant contends on appeal that his Fourth Amendment rights under the United States Constitution and his rights under Article II, Section 10 of the New Mexico Constitution were violated by the jail officials. We reverse in part, affirm in part, and remand for a new trial.
BACKGROUND
{2} On June 9, 2004, Hobbs police officers attempted to pull over Defendant’s vehicle because Defendant had an outstanding municipal warrant. Defendant failed to stop for the officers and eventually fled on foot from his car. One of the officers testified that Defendant was wearing a Los Angeles Lakers jersey as he ran away.
{3} Defendant was eventually found by one of the оfficers in the courtyard of an apartment complex hiding next to a fence and behind an old refrigerator. He was no longer wearing the Lakers jersey and was holding a white t-shirt in his hands. Defendant was handcuffed as he walked out from behind the refrigerator. The arresting officer found a Lakers jersey on the ground where Defendant had been hiding. A large plastic bag containing cocaine was found underneath the refrigerator.
{4} Defendant was subsequently booked at the Hobbs City Jail. Shortly thereafter, Defendant used the telephone in the booking area to call his girlfriend. During the call, Defendant directed his girlfriend to pick up a necklace and keys near the courtyard where Defendant had hidden from the police. On appeal, the State characterizes the conversation between Defendant and his girlfriend as “guarded” and asserts that they were speaking in code.
{5} On June 14, 2004, Defendant made a second telephone call. During this conversation, Defendant made a number of statements regarding drugs and also admitted to owning a Lakers jersey. Defendant also expressed concern that he may face federal charges for his actions. Both telephone calls were recorded by jail officials.
{6} Prior to trial, Defendant orally argued to exclude at trial the tape recordings of the telephone conversations from jail. Defendant asserted that under State v. Coyazo,
DISCUSSION
{7} On appeal, Defendant argues that the district court erred by failing to suppress the tape recordings of his two telephone calls because the calls were protected by the Abuse of Privacy Act, the Fourth Amendment to the United States Constitution, and Article II, Section 10 of the New Mexico Constitution. Dеfendant further contends that if the tape recordings are excluded, there is insufficient evidence to support the verdict against him and the charge against him should therefore be dismissed. We conclude that although the district court properly concluded that Defendant had no reasonable expectation of privacy, and therefore that no constitutional violation had occurred, the court failed to properly consider the provisions of the Abuse of Privacy Act. In applying the provisions of the Abuse of Privacy Act, we hold that the tape of Defendant’s first telephone call should have been excluded. As to the second telephone call, we hold that it was not obtained in contravention of Defendant’s rights under the Abuse of Privacy Act and that it is therefore admissible at trial. We reject Defendant’s remaining contentions.
A. Motion to Suppress
1. Standard of Review
{8} Defendant’s appeal of the denial of his motion to suppress presents a mixed question of law and fact. State v. Gerald B.,
2. Abuse of Privacy Act
{9} The Abuse of Privacy Act “prohibits interference with certain types of electronic communications, including ‘reading, interrupting, taking or copying any message, communication or report intended for another by telegraph or telephone without the consent of a sender or intended recipient thereof.’ ” Coyazo,
(1) under a court order as provided in Sections 30-12-2 thrоugh 30-12-11 NMSA 1978; or
(2) by an operator of a switchboard or an officer, employee or agent of any communication common carrier in the normal course of his employment while engaged in any activity which is a necessary incident to the rendition of his services or to the protection of rights or property of the carrier of such communication; or
(3) by a person acting under color of law in the investigation of a crime, where such person is a party to the communication, or one of the parties to the communication has given prior consent to such interception, monitoring or recording of such communication.
Section 30-12-l(E). In the present case, we are concerned with the third exception, which excludes those communications in which one of the parties to the communication has consented to its monitoring or recording. Section 30 — 12—1(E)(3); see Coyazo,
{10} In the case at bar, it is evident from the record that the district court did not consider the provisions of the Abuse of Privacy Act when determining whether the tape recordings of Defendant’s phone conversations should be suppressed. Defendant, relying on Coyazo, argued to the district court that the tapes could not be admitted if Defendant did not have notice that his phone calls could be monitored. In response, the State argued that Coyazo’s reliance on State v. Lucero,
{11} We believe that the State’s argument below, and the district court’s apparent reliance on it, stems from a misreading of Coyazo. Contrary to the State’s assertions below, this Court in Coyazo did not rely on Lucero in concluding that an inmate’s rights under the Abuse of Privacy Act were not violated. Rather, our Court’s citation to Luсero was in the context of a discussion of whether the inmate’s constitutional rights were violated by the monitoring of his phone calls. See Coyazo,
{12} Although inmates have a diminished expectation of privacy in prison, they are nonetheless protected by the provisions of the Abuse of Privacy Act. See generally Coyazo,
{13} Although the district court did not properly apply the law in deciding whether the tapes were admissible, we review the entire record to determine whether it supports the State’s argument on appeal that Defendant consented to the monitoring and recording of his telephone calls, and therefore the provisions of the Abuse of Privacy Act were not violated. See State v. Martinez,
{14} In determining whether Defendant’s telephone calls were recorded in violation of the Abuse of Privacy Act, the dispositive question in the present case is whether Defendant consented to the recording. See § 30-12-l(E)(3); see also Coyazo,
{15} In the prison context, implied consent is typically found where an inmate has been given notice that his or her phone calls may be monitored. Coyazo,
{16} It is undisputed that Defendant’s first telephone call was made in the booking area on the same day of his arrest. At the pre-trial hearing, the State admitted that individuals making calls from the telephone in the booking area are not given notice that their calls may be monitored. On appeal, the State does not contend that Defendant was given notice that his telephone call on June 9th may be monitored, but instead argues that the facts demonstrate that Defendant was aware that calls may be monitored because he spoke in code. As such, the State argues that Defendant’s consent to the monitoring and recording of his first telephone call can be implied. We disagree.
{17} Initially, we observe that the State does not cite any authority in support of its contention that speaking in code evidences knowledge of monitoring and thus constitutes implied consent to the monitoring of one’s communications. Indeed, some cases addressing the issue of a prison inmate speaking in cоde have expressed doubt as to whether such actions demonstrate the inmate’s implied consent to the monitoring of telephone calls. See Daniels,
{18} Other cases have considered an inmate’s speaking in code as evidence that an inmate had received actual notice that his or her calls may be monitored. See Friedman,
{19} In the absence of any evidence that Defendant had actual notice his calls may be monitored, we do not believe that his talking in code is sufficient to establish his implied consent. For one, it is not readily apparent from the tapes that Defendant is speaking in code, although we agree with the State’s characterization of Defendant’s conversation as seeming “guarded.” Importantly, the district court, after reading the transcript of Defendant’s tеlephone calls, found that there was no indication in Defendant’s conversations that he knew that his calls were being recorded. As such, we remain doubtful that Defendant’s conversations alone evidence an understanding by Defendant that his June 9th telephone call was being monitored or recorded.
{20} Additionally, our review of the transcripts of Defendant’s telephone call on June 9th reveals that Defendant was interrupted more than once during the call by others at the prison. Thus, Defendant’s “guarded” conversation may also bе indicative of the fact that there were others nearby while Defendant was talking on the telephone. It would therefore appear that the motivation behind Defendant’s speaking guardedly may be subject to more than one explanation, as opposed to the State’s assertion that it clearly establishes Defendant’s knowledge of the telephone’s monitoring.
{21} In the absence of any facts establishing that Defendant had actual notice that his telephone calls made from the booking area may be monitored, we do not believe that Defendant’s speaking in code alone establishes his implied consent to the monitoring or recording of his telephone calls. As such, we reverse the district court’s denial of Defendant’s motion to suppress the tape recording of the June 9th telephone call.
{22} Defendant’s second telephone call appears to differ in a number of important ways from Defendant’s first telephone call. Although it is not readily apparent from the record, we believe that it is reasonable to infer that Defendant was no longer in the booking cell when he made the second telephone call. We note that the second call took place five days after Defendant’s first call. As such, we agree with the State’s assertion that by June 14th, Defendant had been transferred from the booking area to a holding cell or general population. Notably, Defendant did not file a reply brief attacking or otherwise controverting the State’s contentions regarding the location of the second telephone сall. See Delta Automatic Sys., Inc. v. Bingham,
{23} As noted by the State before trial, telephones in the general population, as opposed to those in the booking area, have a recording indicating before a call is placed that the call may be monitored or recorded. This assertion was further supported at trial by the testimony of one of the police officers and also by Defendant’s own admissions. Specifically, the police officer testified that at the time a telephone call is made by an inmate, the inmate is told via recording that the call may be monitored. Additionally, Defendant testified that although there is no notice regarding possible monitoring or recording of telephone calls in the booking area, telephones in the holding cell and in general population do give such notice. It does not appear to be disputed, therefore, that inmates who make telephone calls from the holding area or general population are given notice that their calls may be monitored or recorded.
{24} Because Defendant was no longer in the booking area when he made his June 14th telephone call and because the record indicates that telephones outside of the booking area do provide notice that calls may be monitored, we conclude that Defendant impliedly consented to the monitoring and recording of his second telephone call. As previously hеld in Coyazo, an inmate’s use of a telephone after receiving notice that his or her calls may be monitored or recorded constitutes implied consent to the monitoring.
3. Federal and State Constitutional Rights
{25} In addition to arguing that his telephone calls were recorded in contravention of the Abuse of Privacy Act, Defendant contends that his Fourth Amendment rights under the United States Constitution and his rights under Article II, Section 10 of the New Mexico Constitution were violated by the prison officials’ conduct. Because we hold that the monitoring and recording of Defendant’s June 9th telephone call violated the Abuse of Privacy Act and is therefore inadmissible, we do not decide whether this also constituted a violation of Defendant’s constitutional rights.
{26} With respect to the second telephone call, which was made after Defendant received notice of the prison’s monitoring policy, we conclude that Defendant’s constitutional rights were not violated. Prison inmates have a diminished right of privacy while in prison. State v. Trevino,
B. Sufficiency of the Evidence
{27} Defendant contends that if we conclude that his taped telephone conversations are inadmissible at trial, the evidence is insufficient to support his conviction and he is therefore entitled to a dismissal of the charge against him rather than a new trial. See State v. Jojola,
{28} When reviewing a challenge to the sufficiency of the evidence, we must determine “whether substantial evidence of either a direct or circumstantial nature exists to support a vеrdict of guilt beyond a reasonable doubt with respect to every element essential to a conviction.” State v. Sutphin,
{29} To convict Defendant of trafficking a controlled substance, the jury had to find beyond a reasonable doubt that:
1. The defendant had cocaine in his possession;
2. The defendant knew it was cocaine or believed it to be cocaine;
3. The defendant intended to transfer it to another;
4. This happened in New Mexico on or about the 9th day of June, 2004.
See UJI 14-3111 NMRA. On appeal, Defendant appears to contest only the possession element of the conviction against him. Under a theory of constructive possession, even if the drugs were not on Defendant’s person, he can be considered in possession of the drugs if he knew where the drugs were located and if he exercised control over them. UJI 14-3130 NMRA; see State v. Bankert,
{30} Defendant contends that the only evidence presented at trial connecting him to the cocaine were his two telephone calls made from prison. We note, however, that even if both telephone calls were illegally admitted at trial, we would still consider the substance of those tapes in determining the sufficiency of the evidence for the purpose of whether a new trial is appropriate upon remand. See Hernandez,
{31} Defendant fled from the police and removed an easily identifiable article of clothing, his Lakers jersey, as he ran. See State v. Morales,
CONCLUSION
{32} Defendant’s conviction is reversed, and we remand for a new trial.
{33} IT IS SO ORDERED.