A recent case by the Washington Court of Appeals highlighted this issue. In January of 2012, Roman Fedorov had been arrested for driving under the influence on Interstate 5. A Washington State Patrol trooper had transported Fedorov to the Fife Police Department, which was the closest location that had proper breath alcohol testing facilities.
Fedorov asked to speak to a lawyer and was given a telephone while in the BAC room. But since it was a windowless room, the trooper stayed inside with Fedorov during his phone call in order to keep tabs on him. Over the phone, Fedorov's attorney requested that he have "complete privacy," at which time the trooper allegedly walked to the other side of the (27 x 15 foot) room.
After Fedorov was convicted, he appealed on the grounds that his breath alcohol test results should have been suppressed because he was never given complete privacy during the call with his attorney. Fedorov's lawyer felt that this conversation could be heard by the trooper and was therefore afraid to ask his client open-ended question about the situation. The trooper testified he couldn't hear anything unless Fedorov were to speak loudly. The trial court did agree that Fedorov's privacy was violated, but still refused to suppress the evidence.
In Washington v. Fedorov, (Unpublished Opinion), the Washington Court of Appeals Division II in July of this year not only upheld Fedorov's conviction, but it rejected his argument that his privacy was in fact violated, noting that the presence of an officer in the same room as an attorney-client phone call does not necessarily result in a privacy violation. And since the trooper claimed not to have heard anything, the appeals court concluded that no privacy violation took place in this instance!
Basically, the court embraced the trooper's assertions of not hearing anything and rejected Fedorov's attorney's claim that their conversation was compromised because they didn't believe the discussions were completely private. This sets a troubling standard in cases where a "he-said, she-said" situation arises.
Think about it. If a police officer gets in your face and brandishes his handcuffs while demanding to search your vehicle on the side of the road, but later testifies that he never intended to arrest or harm you, will the court claim that your rights weren't violated if you felt intimidated into consenting to a search? Because that's what Washington v. Fedorov essentially allowed to happen.