650 S.E.2d 169
Davis, Chief Justice:
Eddie Mullens (hereinafter “Mr. Mullens”) appeals an order of the Circuit
Court of Boone County sentencing him to a term of one to five years imprisonment, (See footnote 1) after
entering a conditional guilty plea to a charge of delivery of a controlled substance. (See footnote 2) Pursuant
to the terms of the conditional guilty plea, Mr. Mullens assigns error to the circuit court's
denial of his motion to suppress an audio and video recording of the drug transaction that
occurred in his home. Mr. Mullens asserts that the audio and video recording should have
been suppressed because the evidence was obtained by an informant acting under the color
of law without a court order. After careful consideration of the briefs, record and oral
arguments, we find that the circuit court should have suppressed the audio and video
recording in this case. Accordingly, Mr. Mullens' conviction and sentence are reversed, and
this case is remanded to permit him to withdraw his guilty plea.
In Mr. Mullens' motion to suppress he argued that the prohibition of
unlawful search and seizure, under the Fourth Amendment to the federal constitution, was
violated by the failure of the police to obtain judicial authorization to have an informant enter
his home wearing an audio and video recording device. The circuit court found that, based
upon the decision of the United States Supreme Court in United States v. White, 401 U.S.
745, 91 S. Ct. 1122, 28 L. Ed. 2d 453 (1971), the Fourth Amendment was not violated.
Before we discuss White, we must first examine the federal electronic surveillance statutes.
1. Federal electronic surveillance under Title III. Under federal law, the
use of electronic surveillance devices by law enforcement officials was initially governed by
general provisions contained in the Federal Communications Act of 1934. (See footnote 8) However, in
1968 Congress enacted detailed electronic surveillance laws through Title III of the Omnibus
Crime Control and Safe Streets Act. (See footnote 9) Title III “sets forth comprehensive standards
governing the use of . . . electronic surveillance by both governmental and private agents.” Mitchell v. Forsyth, 472 U.S. 511, 515, 105 S. Ct. 2806, 2809, 86 L. Ed. 2d 411, 418 (1985).
In 1986, Congress amended Title III through enactment of the Electronic Communications
Privacy Act (hereinafter “ECPA”), (See footnote 10) in an effort to reflect technological advancements in the
area of electronic surveillance. See Snow v. DIRECTV, Inc., 450 F.3d 1314, 1320 (11th Cir.
2006) (“The ECPA was enacted to update the then existing federal wiretapping law to protect
the privacy of the growing number of electronic communications.”). (See footnote 11) Title III was further
amended by the Communications Assistance for Law Enforcement Act of 1994. (See footnote 12)
It has been suggested that the long history of federal law in the area of
electronic surveillance devices reveals attempts by Congress “to assist law enforcement in
the investigation and prosecution of organized crime and to protect the privacy rights of
United States citizens against the unwarranted interception of . . . communications[.]” Daniel
R. Dinger, Should Parents Be Allowed to Record a Child's Telephone Conversations When
They Believe the Child Is in Danger?: An Examination of the Federal Wiretap Statute and
the Doctrine of Vicarious Consent in the Context of a Criminal Prosecution, 28 Seattle U.L.
Rev. 955, 958 (2005). “In short, Title III represents an attempt by Congress to establish a
system of electronic surveillance subject to rigorous safeguards.” United States v. Clemente,
482 F. Supp. 102, 106 (S.D.N.Y. 1979).
The pertinent federal electronic surveillance provisions of Title III are codified
at 18 U.S.C.A. § 2510, et seq. These statutes “represent[] an attempt to strike what is clearly
a balance through stringent regulation of the uses of electronic surveillance in order to
achieve the dual purpose of protecting individual privacy, while permitting limited
government surveillance in accordance with uniform standards.” Application of the U.S.
Authorizing the Interception of Wire Communications, 413 F. Supp. 1321, 1331 (E.D. Pa.
1976). Except for specifically codified exceptions, Title III prohibits the unauthorized use
of a device to record another's communication. (See footnote 13) Title III requires judicial authorization,
except in limited circumstances, for recording the communications of another with an
electronic surveillance device. (See footnote 14) Under Title III, criminal and civil penalties are imposed for
the unauthorized use of a device to record the communication of another person. (See footnote 15) Title III
also contains an evidentiary suppression remedy that provides for the suppression of
unlawfully intercepted communications. (See footnote 16)
One of the exceptions to the prohibition on unauthorized electronic surveillance
is found in 18 U.S.C.A. § 2511 (2) (c). This statute provides:
(c) It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.
(Emphasis added). (See footnote 17)
Under this statute, “consent of one party to a conversation is sufficient to permit a person
acting under color of law to [lawfully] intercept a wire, oral, or electronic communication.” United States v. Pratt, 913 F.2d 982, 986 (1st Cir. 1990) (internal quotations omitted).
Federal “[c]ourts have established that informants who record private conversations at the
direction of government investigators are 'acting under color of law.'” United States v.
Haimowitz, 725 F.2d 1561, 1582 (11th Cir. 1984) (citations omitted).
For the purposes of this case, it is clear that there is statutory authority for
federal officials to place an electronic surveillance device on a consenting informant, without
judicial authorization, for the purpose of recording communications with a third-party
suspect. The issue of whether or not the use of an informant in this manner, while in the
home of a suspect, violates the Fourth Amendment was addressed in the White decision.
2. United States v. White and the Fourth Amendment. The case of United States v. White, 401 U.S. 745, 91 S. Ct. 1122, 28 L. Ed. 2d 453 (1971), involved a defendant
who was prosecuted by the federal government for drug trafficking. Prior to the defendant's
arrest, federal authorities arranged to have a confidential informant wear a listening device
during meetings with the defendant. Federal officials did not obtain judicial authorization
to equip the informant with an electronic surveillance device. As a result of the informant
wearing the electronic surveillance device, federal authorities were able to hear conversations
between the defendant and the informant during eight separate meetings_only one of which
was in the actual home of the defendant. During the defendant's trial, the government
introduced evidence of the statements made by the defendant to the informant. (See footnote 18) The
defendant was ultimately convicted. The Court of Appeals for the Seventh Circuit reversed
the conviction, concluding that evidence of statements made by the defendant to the
informant should have been suppressed, because the evidence was obtained without a warrant
in violation of the Fourth Amendment. (See footnote 19)
In a six to three decision, the United States Supreme Court reversed the
decision of the Court of Appeals. Thus, the judgment in White was rendered in a plurality
opinion. (See footnote 20) The plurality opinion justified the Court's judgment as follows:
No warrant to “search and seize” is required . . . when the
Government sends to defendant's home a secret agent who
conceals his identity and makes a purchase of narcotics from the
accused, or when the same agent, unbeknown to the defendant,
carries electronic equipment to record the defendant's words and
the evidence so gathered is later offered in evidence.
. . . .
Concededly a police agent who conceals his police connections
may write down for official use his conversations with a
defendant and testify concerning them, without a warrant
authorizing his encounters with the defendant and without
otherwise violating the latter's Fourth Amendment rights. For
constitutional purposes, no different result is required if the
agent instead of immediately reporting and transcribing his
conversations with defendant, either (1) simultaneously records
them with electronic equipment which he is carrying on his
person; (2) or carries radio equipment which simultaneously
transmits the conversations either to recording equipment
located elsewhere or to other agents monitoring the transmitting
frequency. If the conduct and revelations of an agent operating
without electronic equipment do not invade the defendant's
constitutionally justifiable expectations of privacy, neither does
a simultaneous recording of the same conversations made by the
agent or by others from transmissions received from the agent
to whom the defendant is talking and whose trustworthiness the
defendant necessarily risks.
White, 401 U.S. at 749-51, 91 S.Ct. at 1125-26, 28 L. Ed. 2d at 457-58 (internal citations
omitted).
The decision in White stands for the proposition that a person does not have an
expectation of privacy regarding conversations held in his/her home with a third party.
Without such an expectation of privacy, under White the Fourth Amendment does not require
the police to obtain judicial authorization to send an informant wearing an electronic
surveillance device into the home of another person. See also United States v. Eschweiler,
745 F.2d 435 (7th Cir. 1984); (holding that informant's use of electronic surveillance device
in defendant's home did not violate the Fourth Amendment); United States v. Hankins, 195
Fed. Appx. 295 (6th Cir. 2006) (same); United States v. Brathwaite, 458 F. 3d 376 (5th Cir.
2006) (same); United States v. Davis, 326 F.3d 361 (2nd Cir. 2003)(same).
Three Justices dissented from the majority's judgment in White. All three
Justices believed that the Fourth Amendment required federal officials to obtain a warrant
before attaching an electronic surveillance device to an informant, for the purpose of
capturing conversations with a suspect, regardless of where the conversations were held. The
position taken by the dissenters was articulated best in the dissenting opinion of Justice
Harlan. In his dissent, Justice Harlan made the following observations:
The impact of the practice of third-party bugging, must, I think,
be considered such as to undermine that confidence and sense of
security in dealing with one another that is characteristic of
individual relationships between citizens in a free society. . . .
The argument of the plurality opinion, to the effect that it is
irrelevant whether secrets are revealed by the mere tattletale or
the transistor, ignores the differences occasioned by third-party
monitoring and recording which insures full and accurate
disclosure of all that is said, free of the possibility of error and
oversight that inheres in human reporting.
Authority is hardly required to support the proposition that
words would be measured a good deal more carefully and
communication inhibited if one suspected his conversations
were being transmitted and transcribed. Were third-party
bugging a prevalent practice, it might well smother that
spontaneity _ reflected in frivolous, impetuous, sacrilegious, and
defiant discourse _ that liberates daily life. Much offhand
exchange is easily forgotten and one may count on the obscurity
of his remarks, protected by the very fact of a limited audience,
and the likelihood that the listener will either overlook or forget
what is said, as well as the listener's inability to reformulate a
conversation without having to contend with a documented
record. All these values are sacrificed by a rule of law that
permits official monitoring of private discourse limited only by
the need to locate a willing assistant.
. . . .
Finally, it is too easy to forget_ and, hence, too often forgotten_
that the issue here is whether to interpose a search warrant
procedure between law enforcement agencies engaging in
electronic eavesdropping and the public generally. By casting its
“risk analysis” solely in terms of the expectations and risks that
“wrongdoers” or “one contemplating illegal activities” ought to
bear, the plurality opinion, I think, misses the mark entirely. . .
. The very purpose of interposing the Fourth Amendment
warrant requirement is to redistribute the privacy risks
throughout society in a way that . . . would prevent public
officials from engaging in that [third-party bugging] practice
unless they first had probable cause to suspect an individual of
involvement in illegal activities and had tested their version of
the facts before a detached judicial officer. The interest [the
majority] fails to protect is the expectation of the ordinary
citizen, who has never engaged in illegal conduct in his life, that
he may carry on his private discourse freely, openly, and
spontaneously without measuring his every word against the
connotations it might carry when instantaneously heard by
others unknown to him and unfamiliar with his situation or
analyzed in a cold, formal record played days, months, or years
after the conversation. Interposition of a warrant requirement is
designed not to shield “wrongdoers,” but to secure a measure of
privacy and a sense of personal security throughout our society.
The Fourth Amendment does, of course, leave room for the
employment of modern technology in criminal law enforcement,
but in the stream of current developments in Fourth Amendment
law I think it must be held that third-party electronic monitoring,
subject only to the self-restraint of law enforcement officials,
has no place in our society.
White, 401 U.S. at 787-90, 91 S. Ct. at 1143-45, 28 L. Ed. 2d at 478-80 (Harlan, J.,
dissenting) (internal citations omitted).
In addition to the dissenters in White, scholars have argued that the Fourth
Amendment should require a warrant to be issued before the police send an informant into
a suspect's home while wearing an electronic surveillance device. The following is a cursory
review of the criticisms of White by some scholars:
Justice Harlan's dissent in United States v. White warned against
unsupervised use of government power to spy on the people. He
urged that electronic and false-friend surveillance . . . be
permitted only under the warrant requirements of the Fourth
Amendment, so that government intrusion is possible only if a
magistrate agrees with the government that there is probable
cause. Respect for the principles that underlie the Fourth
Amendment and the rebellion that produced it, demands no less.
. . . By declaring that one has no reasonable expectation of
privacy when speaking with another, the Court removes
conversation from the protections of the Fourth Amendment,
leaving government power unchecked. The Amendment
becomes an empty, and mocking, promise. The Court has thus
abdicated the judicial function in an area so sensitive that it lay
at the heart of the revolution.
Donald L. Doernberg, “Can You Hear Me Now?': Expectations of Privacy, False Friends,
and the Perils of Speaking under the Supreme Court's Fourth Amendment Jurisprudence, 39 Ind. L. Rev. 253, 306-08 (2006).
Unless the White plurality truly is willing to saddle American society with the universal risk that every conversation may be electronically monitored, then the White plurality view is not only illogical and unreasonable _ it is absurd. Moreover, it defies common sense as well as the common understanding of Americans who yet have some sensitivity to the “qualitative difference” between electronic surveillance and conventional police investigation.
Mona R. Shokrai, Double-Trouble: The Underregulation of Surreptitious Video Surveillance
in Conjunction with the Use of Snitches in Domestic Government Investigations, 13 Rich.
J.L. & Tech. 3, 58 (2006) (quoting Tom P. Conom, Privacy and the Fourth Amendment in
the Twenty-First Century, 19 CHAMPION 13, 18 (1995)).
The White plurality, without any discussion or analysis of the doctrinal shift announced in [Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)] reaffirmed prior holdings that authorized unchecked surveillance of private conversations and unbridled invasions of private homes and offices whenever informants are available to gather information for the government. If the “Fourth Amendment protects people, and not places,” as Katz insisted, then why is the Amendment inapplicable against government efforts to record conversations or infiltrate homes or offices using secret informants? If the Fourth Amendment restrains the discretion of the police to wiretap or “bug” private conversations (conducted in telephone booths), it is not apparent why that same provision is inapplicable when the police monitor and record private conversations through the use of a secret informant deliberately position(ed) to hear those conversations. After all, a secret informant acts as a “human bug” for the government.
Tracey Maclin, Katz, Kyllo, and Technology: Virtual Fourth Amendment Protection in the Twenty-first Century, 72 Miss. L.J. 51, 76 (2002).
It cannot be denied that one risks public revelation of private
thoughts any time one takes on a confidante. Once again,
however, the Court's assumption of the risk/implied consent
analysis takes on an air of fantasy. . . . The Court's analysis in
its undercover cases is based on a dangerous premise: that we
should expect no privacy from the government when we do not
expect it from others. If this premise were taken seriously, the
only sphere of privacy still protected from unnecessary
government intrusion would be what we kept to ourselves. . . .
Furthermore, undercover activity is more likely than other types
of searches to occasion prolonged insinuation into people's
privacy. In the typical search and seizure scenario, the target
can minimize the intrusion by consenting to particular actions or
proving his or her innocence in some way. When the
government proceeds covertly, however, these options are not
available. Added to this denigration of individual interests is the
damage undercover police work causes to the democratic state's
objective of remaining legitimate. First, because it relies on
fraud and deceit, covert investigation undermines trust in the
government. More importantly, it increases distrust of
everyone, since anyone could be a government agent. . . .
. . . Thus, undercover activity undercuts both the state's interest
in maintaining the allegiance of its citizenry and its objective of
nurturing an open, democratic society.
Because of these possible effects, one might argue that
undercover activity should be banned. . . . At the least, judicial
authorization should be obtained prior to any nonexigent
undercover activity. . . .
Christopher Slobogin, The World Without a Fourth Amendment, 39 UCLA L. Rev. 1, 103-05
(1991). See also Tracey Maclin, Informants and the Fourth Amendment: A Reconsideration,
74 Wash. U. L.Q. 573, 617 (1996) (“[W]hen I open my front door to a friend, to an overnight
delivery worker, or to a complete stranger, access is afforded only to those whom I
knowingly admit. If the police want access to my home, they should follow lawful
procedure. At times, stealthy entries may be necessary; but under the Constitution, the police
cannot decide by themselves when they will enter a home.”).
Notwithstanding the criticisms of White, the decision remains the law for
Fourth Amendment purposes. Thus, insofar as the circuit court found that the Fourth
Amendment was not violated by the conduct of the police in this case, that ruling was
correct.
As previously indicated, Vermont does not appear to have any statutory laws
addressing the issue of using electronic surveillance devices. This issue appears to be guided
solely by the search and seizure provision of the state's constitution. In spite of the absence
of any statutory law, the issue of using an informant equipped with an electronic surveillance
device to enter the home of a suspect, without a warrant, has been addressed by the Supreme
Court of Vermont.
In State v. Blow, 602 A.2d 552 (Vt. 1991), the police used an informant to
record a drug transaction in the home of the defendant. During the trial, a police officer was
permitted to testify about the contents of the electronically recorded drug transaction. The
defendant was convicted. In his appeal, the defendant argued that the electronic surveillance
evidence should have been suppressed because it was obtained without a search warrant as
required by the search and seizure provision of the Vermont Constitution. The Supreme
Court of Vermont agreed with the defendant and reversed the conviction. The opinion in Blow reasoned as follows:
In assessing the constitutionality of technologically enhanced
government surveillance in a particular case, we must identify
the values that are at risk, and vest the reasonable-expectation-of-privacy test with those values. In the
instant case, defendant's conversation with the informant took
place in defendant's home, and there is no indication in the
record to suggest that he expected the conversations to be
transmitted beyond the immediate environs, especially not
through electronic enhancement. Clearly, he did not
“knowingly expose” the conversation to the outside world, and
therefore exhibited a clear subjective expectation of privacy. The objective component of the . . . test was met as well. We
have stated that the reasonableness analysis must be tied to
identifiable constitutional values. One such value under [the
state constitution] concerns the deeply-rooted legal and societal
principle that the coveted privacy of the home should be
especially protected. [F]reedom of speech is undermined where
people fear to speak unconstrainedly in what they suppose to be
the privacy of home and office.
. . . .
We conclude that warrantless electronic participant monitoring
conducted in a home offends the core values of [our
constitution]. Accordingly, where the State uses an agent to
enter a home for the purposes of eliciting and electronically
transmitting evidence from an occupant of the home, it is the
burden of the State to obtain a warrant upon probable cause
prior to conducting that search.
Blow, 602 A.2d at 555-56 (citations and internal quotations omitted). See also State v.
Geraw, 795 A.2d 1219 (Vt. 2002) (holding that a police officer working undercover cannot
enter a defendant's home with an electronic surveillance device without a search warrant).
2. States with Title III type electronic surveillance statutes. As previously
stated, a majority of jurisdictions have electronic surveillance statutes patterned after Title
III. (See footnote 24) These statutes, like Title III, generally prohibit electronic surveillance in the absence
of judicial authorization. However, while most of these jurisdictions follow Title III and
statutorily recognize one-party consent to electronic surveillance, some jurisdictions do not.
For this reason our discussion in this section will be divided into two parts: (a) states with
Title III type one-party consent statutes, and (b) states without Title III type one-party
consent statutes.
(a) States with Title III type one-party consent statutes. A total of 32
jurisdictions follow Title III by statutorily authorizing one-party consent to electronic
surveillance. That is, under the statutes of these jurisdictions, the police do not need judicial
authorization to conduct electronic surveillance if one party to the communication consents
to the recording. (See footnote 25)
Only six jurisdictions that statutorily authorize one-party consent for the use
of electronic surveillance devices have addressed the issue in the context of an informant
recording communications in the home of a suspect: Florida, Ohio, Massachusetts,
Mississippi, Wisconsin, and Wyoming. Among these, the decisions of the Supreme Courts
of Florida and Massachusetts are particularly instructive.
In State v. Sarmiento, 397 So. 2d 643 (Fla.1981), the Florida Supreme Court
rejected the ruling in White and held that the search and seizure provision of the state
constitution prohibited an informant from using an electronic surveillance device in a
suspect's home without judicial authorization. In response to the decision in Sarmiento, the
people of Florida amended the state's constitutional search and seizure provision to require
that it be “construed in conformity with the 4th Amendment to the United States
Constitution, as interpreted by the United States Supreme Court.” Fla. Const. art. 1, § 12
(2004). As a result of this amendment, the Florida Supreme Court in State v. Hume, 512
So. 2d 185 (Fla. 1987), held that “the recording of conversations between a defendant and
an undercover agent in a defendant's home, such as occurred in the instant case [without a
warrant], does not violate the fourth amendment of the United States Constitution and,
accordingly, does not violate the newly adopted article I, section 12, of the Florida
Constitution.” Hume, 512 So. 2d at 188. In addition to the court in Hume, two other courts
have held that the search and seizure provision of their respective state constitutions allows
an informant to secretly wear an electronic surveillance device in a suspect's home without
judicial authorization. See Lee v. State, 489 So. 2d 1382 (Miss. 1986) (upholding
surveillance under state and federal constitutions); Alamada v. State, 994 P.2d 299 (Wyo.
1999) (upholding surveillance under state constitution). (See footnote 26)
In Commonwealth v. Blood, 507 N.E.2d 1029 (Mass. 1987), the Massachusetts
Supreme Court was called upon to decide whether the search and seizure provision of the
state's constitution allowed the police to send an informant into the home of suspects,
without a warrant, to record communications. In resolving this issue, the Blood decision
rejected the United States Supreme Court's ruling in White, and found that the Massachusetts
Constitution required issuance of a search warrant. The Blood opinion reasoned as follows:
[I]n circumstances not disclosing any speaker's intent to cast
words beyond a narrow compass of known listeners, we
conclude that it is objectively reasonable to expect that
conversational interchange in a private home will not be invaded
surreptitiously by warrantless electronic transmission or
recording. The remaining question is whether “one party
consent” so alters the balance as to obviate the need for a
warrant requirement. It does not. Such consent only affords the
State a person willing to transport the invisible instruments of
eavesdropping into “earshot.”
. . . .
. . . [T]he consent exception puts the conversational liberty of
every person in the hands of any officer lucky enough to find a
consenting informant.
. . . .
. . . [T]he Commonwealth relies . . . on [several] arguments.
None is persuasive. The first of these arguments asserts,
according to the Commonwealth, that because the person subject
to the warrantless interception is a “wrongdoer,” [he] should be
made to bear the risk of betrayal. This argument proceeds from
a pernicious assumption, that anyone subjected to surveillance
by police is, because of that fact, necessarily a “wrongdoer.” It
is the purpose of the warrant requirement . . . to subject police
suspicions to the scrutiny of a neutral and detached magistrate
instead of [leaving them to be] judged by the officer engaged in
the often competitive enterprise of ferreting out crime. Little
would be left of anyone's justifiable reliance on privacy . . . if
everyone must realize that he will be free from warrantless
electronic intrusion only so long as someone in the government
does not suspect him of improper conduct or wrong thinking[.]
The relevant question is not whether criminals must bear the risk
of warrantless surveillance, but whether it should be imposed on
all members of society. The White plurality underestimated this
risk because it perceived no distinction of constitutional moment
between the common gossip and the “wired” informant. For us,
however, a distinction lies in the disparity between that sense of
security which is felt among trusted friends and the feelings of
hostility encountered among competitors or combatants. The
sense of security is essential to liberty of thought, speech, and
association.
. . . .
The Commonwealth urges consideration of the principle
developed in White that a defendant who has no constitutional
right to exclude the informer's unaided testimony . . . has [no
constitutional] privilege against a more accurate version of the
events in question. We do not dispute the premise that arguably
more accurate evidence may be gathered if police electronically
record conversations than if a participant trusts solely to his
memory when testifying. And we agree that a criminal
defendant cannot rely on the exclusion of the testimony of an
informer's personal, unmediated account of what was said. The
probative value of evidence wrongfully obtained does not,
however, justify a search or seizure in defeat of constitutional
safeguards.
We conclude that it is unreasonably intrusive to impose the risk
of electronic surveillance on every act of speaking aloud to
another person. We cannot conclude that, in the absence of a
warrant, the consent of less than all the partakers of a
conversation is sufficient to waive any participant's rights
pursuant to [the search and seizure provision] not to be recorded.
If a person commits his secret thoughts to paper, that is no
license for the police to seize the paper; if a person
communicates his secret thoughts verbally [sic] to another, that
is no license for the police to record the words. . . . The right of
privacy would mean little if it were limited to a person's solitary
thoughts, and so fostered secretiveness.
. . . .
Judicially supervised use of electronic surveillance by law
enforcement officers is not forbidden by [our constitution]. [I]t
is too easy to forget _ and, hence, too often forgotten _ that the
issue here is whether to interpose a search warrant procedure
between law enforcement agencies engaging in electronic
eavesdropping and the public generally. . . . Interposition of a
warrant requirement is designed not to shield “wrongdoers,” but
to secure a measure of privacy and a sense of personal security
throughout our society.
No warrant was sought by [the police in this case]. Three days
elapsed between [the informant's] agreement to be wired and the
taping of the first conversation admitted in evidence; nine more
days elapsed before a second conversation was taped. Thus, we
perceive no exigency which prevented the procurement of a
warrant. Each conversation whose recorded contents was
admitted at trial had unfolded in a person's home, in
circumstances not even remotely suggestive of any speaker's
intent to be heard beyond the circle of known listeners. As to
each of those conversations, we hold that its warrantless
electronic search by surreptitious transmission and its electronic
seizure by surreptitious recording were in violation of [our
constitution].
Blood, 507 N.E.2d at 1034-38 (internal quotations and citations omitted). (See footnote 27)
(b) States without Title III type one-party consent statutes. The electronic
surveillance statutes in 13 jurisdictions differ from Title III in that they do not authorize the
police to unilaterally engage in one-party consent surveillance. Pursuant to these statutes,
the police are required to obtain authorization from a judicial officer or the Attorney General
in order to equip an informant with an electronic surveillance device, for the purpose of
recording communications with a suspect. (See footnote 28) The issue of an informant recording
communications in the home of a suspect, without lawful authorization, has been addressed
by seven of these jurisdictions: Alaska, Indiana, Kansas, Nevada, Oregon, Pennsylvania, and
Washington.
In the cases of Snellgrove v. State, 569 N.E.2d 337 (Ind. 1991), and State v.
Wright, 444 P.2d 676 (Wash. 1968), the courts were called upon to decide whether the
Fourth Amendment to the federal constitution prohibited warrantless electronic surveillance
in a suspect's home by an informant. Both courts held that the Fourth Amendment was not
violated by such conduct. The courts in Snellgrove and Wright were not called upon to
decide the issue on state constitutional grounds. The courts in State v. Roudybush, 686 P.2d
100 (Kan. 1984), and State v. Bonds, 550 P.2d 409 (Nev. 1976), construed their respective
surveillance statutes as not prohibiting an informant from recording communications in a
suspect's home without a warrant. The courts in Roudybush and Bonds also were not called
upon to decide the issue in the context of their state constitutions. In State v. Fleetwood, 16
P.3d 503 (Ore. 2000), the Oregon Supreme Court held that the electronic surveillance statutes
of that state did not permit the police to send an informant into a suspect's home with a
recording device without a warrant. The court in Fleetwood prevented one-party consent
surveillance in the home on statutory grounds, but not on constitutional grounds.
The court in State v. Glass, 583 P.2d 872 (Alaska 1978), opinion on reh'g, 596
P.2d 10 (Alaska 1979), (See footnote 29) was asked to decide whether the Alaska Constitution was violated
when an informant, without a warrant, wore an electronic surveillance device in a suspect's
home that allowed the police to record the communication. In resolving the issue, the court
in Glass rejected the holding by the United States Supreme Court in White, and found that
the state's constitutional search and seizure and right to privacy provisions prohibited
warrantless electronic surveillance in the home of a suspect. The Glass Court reasoned as
follows:
In construing similar provisions of Alaska's Constitution, we, of
course, give careful consideration to the holdings of the United
States Supreme Court, although we are not bound by them. White, however, does not present a clear cut agreement by any
majority of the justices, and our decision as to Alaska's
Constitution should therefore be influenced solely by the
reasoning supporting the differing positions. Moreover, the
United States Supreme Court has carefully stated: “[T]he
protection of a person's General right to privacy his right to be
let alone by other people is, like the protection of his property
and of his very life, left largely to the law of the individual
States.”
. . . .
It is, of course, easy to say that one engaged in an illegal activity
has no right to complain if his conversations are broadcast or
recorded. If, however, law enforcement officials may lawfully
cause participants secretly to record and transcribe private
conversations, nothing prevents monitoring of those persons not
engaged in illegal activity, who have incurred displeasure, have
not conformed or have espoused unpopular causes.
To determine whether one's activities fall within the right of
privacy, we must examine: first, whether Appellant has
exhibited an expectation of privacy[;] and second, whether that
expectation is one that society is prepared to recognize as
reasonable.
. . . [T]he instant case involves conversations taking place in the
sanctity of one's home. If nowhere else, an individual must feel
secure in his ability to hold a private conversation within the
four walls of his home. For the right to privacy to mean
anything, it must guarantee privacy to an individual in his own
home. . . . Upon closing the door of one's home to the outside
world, a person may legitimately expect the highest degree of
privacy known to our society.
. . . .
. . . An individual has a constitutionally protected right to be
secure in his home.
. . . [Consequently,] we hold that an individual can reasonably
expect that his right to privacy will not be violated in his home
through the use of any electronic surveillance. In so holding, we
need not find [the statute] unconstitutional. We must presume
that the General Assembly did not intend to violate the
constitution, and will construe a statute so as to sustain its
validity if such is fairly possible. With respect to oral
communications occurring within one's home, interception
pursuant to [the statute] can only be deemed constitutional under
Article 1, Section 8 if there has been a prior determination of
probable cause by a neutral, judicial authority. In light of the
General Assembly's preference expressed elsewhere in the Act
that probable cause determinations regarding other electronic
surveillance be made by a judge of the Superior Court, for
consistency we believe that such procedures should be applied
in fulfilling this probable cause/warrant requirement.
In this case, there is no evidence to suggest that Brion
committed any act which would reasonably lead to the
conclusion that he did not have an expectation of privacy within
his home. Because there was no determination of probable
cause by a neutral judicial authority, the consensual body wire
violated Article I, Section 8 and the tape recording of the
transaction in Brion's home should have been suppressed.
Brion, 652 A.2d at 288-89 (internal quotations and citations omitted).
3. Summation. The above analysis indicates that the appellate courts in at
least fifteen states have addressed the issue of an informant entering the home of a suspect,
while the informant was wearing an electronic surveillance device not judicially approved.
Nine courts permit such surveillance, (See footnote 30) however, only four of those courts have decided the
issue on state constitutional grounds. (See footnote 31) Six courts prohibit such surveillance, (See footnote 32) and four of
those courts have done so on state constitutional grounds. (See footnote 33) Thus, it would appear that half
of the courts in other states addressing the issue have rejected the White decision on state
constitutional grounds, and thus prohibit an informant from entering the home of a suspect
while wearing an electronic surveillance device without a search warrant having been issued.
(4) There is probable cause to believe that the facilities from
which, or the place where, the wire, oral or electronic
communications are to be intercepted are being used, or are
about to be used, in connection with the commission of the
offense, or offenses are leased to, listed in the name of, or
commonly used by this person.
W. Va. Code § 62-1D-11(c).
The Act provides for a one-party consent exception to the warrant requirement.
This exception is contained in W. Va. § 62-1D-3(b)(2) as follows:
It is lawful under this article for a person to intercept a wire, oral
or electronic communication where the person is a party to the
communication or where one of the parties to the
communication has given prior consent to the interception
unless the communication is intercepted for the purpose of
committing any criminal or tortious act in violation of the
constitution or laws of the United States or the constitution or
laws of this state. (See footnote 41)
(Footnote added). Until now, this Court has never been called upon to decide whether the
Act's one-party consent exception permits the police to send an informant into a suspect's
home with an electronic surveillance device, but without judicial authorization. However,
in two prior decisions we have interpreted the Act's one-party consent exception as
permitting the police to record communications between a suspect and an informant that did
not occur in a suspect's home. (See footnote 42)
In State v. Dillon, 191 W. Va. 648, 447 S.E.2d 583 (1994), the police, without
a warrant, placed an electronic surveillance device on an informant in order to record drug
transactions between the informant and the defendant. The police were able to record several
conversations between the informant and the defendant while they were in a car and on the
street. As a result of the surreptitious recordings, the defendant was indicted and prosecuted
for drug trafficking. During the trial, the informant did not appear. Consequently, the
prosecutor introduced the tape recordings into evidence. The defendant was convicted. He
appealed. One of the issues raised by the defendant was that the tape recordings should not
have been allowed into evidence because there was no testimony by the informant indicating
the informant consented to wearing the electronic surveillance device. We rejected this
argument and held that,
Proof of consent for purposes of electronic intercept set forth in
West Virginia Code §§ 62-1D-3 and 62-1D-6 need not be
proven solely by the consenting individual's testimony, but can
be proven through other evidence, such as the testimony of the
person to whom the consent was given, that the consenting
individual actually consented to the electronic intercept.
Syl. pt. 1, Dillon, 191 W. Va. at 657, 447 S.E.2d at 592.
In State v. Williams, 215 W. Va. 201, 599 S.E.2d 624 (2004), a fifteen-year-old
sexual assault victim gave the police permission to place a wiretap on her telephone to record
a conversation she had with the defendant, her attacker. (See footnote 43) The defendant was subsequently
arrested and prosecuted for sexual assault. During the trial, the taped telephone conversation
was introduced into evidence. The defendant was ultimately convicted, and he appealed.
One of the issues raised in the appeal by the defendant was that the telephone wiretap was
illegal because the Act did not permit a child to give consent to electronic recording. This
Court rejected the argument. In doing so, we found that the applicable definitions provided
under the Act did not make a distinction between an adult and a child. Williams stated “[t]he
statute simply contains no vicarious consent exception for minors, and we refuse to find that
one exists without a statutory basis to do so.” Williams, 215 W. Va. at 207, 599 S.E.2d at
630. (See footnote 44)
We believe that, under the decisions in Dillon and Williams, the one-party
consent exception of the Act permits the police to equip an informant with an electronic
surveillance device and, without a warrant, send the informant into the home of a suspect.
Consequently, in the instant case, the Act permitted the police to send an informant into Mr.
Mullens' home while the informant was wearing an electronic surveillance device.
2. One-party consent to electronic surveillance in the home of a suspect
and the search and seizure provision of the West Virginia Constitution. Although we
have concluded that the conduct complained of in the instant case was lawful under the Act,
we must now decide whether the search and seizure provision of our state constitution
permits one-party consent to electronic surveillance in the home of a suspect without a
warrant. (See footnote 45) Article 3, § 6 of the West Virginia Constitution provides:
The rights of the citizens to be secure in their houses, persons,
papers and effects, against unreasonable searches and seizures,
shall not be violated. No warrant shall issue except upon
probable cause, supported by oath or affirmation, particularly
describing the place to be searched, or the person or thing to be
seized.
We have indicated that the purpose of article 3, § 6 “is to impose a standard
of 'reasonableness' upon the exercise of discretion by government officials, including law
enforcement officers, so as to safeguard the privacy and security of individuals against
arbitrary invasions [by governmental officials].” State v. Legg, 207 W. Va. 686, 692, 536
S.E.2d 110, 116 (2000) (internal quotations and citations omitted). This Court has also held
that “[t]he provisions of the Constitution of the State of West Virginia may, in certain
instances, require higher standards of protection than afforded by the Federal Constitution.”
Syl. pt. 2, Pauley v. Kelly, 162 W. Va. 672, 255 S.E.2d 859 (1979). Therefore, the mere fact
that the Fourth Amendment has been interpreted as allowing one-party consent electronic
surveillance in the home of a suspect does not mean that this Court is required to interpret
article III, § 6 in the same manner. “This Court has determined repeatedly that the West
Virginia Constitution may be more protective of individual rights than its federal
counterpart.” State ex rel. Carper v. West Virginia Parole Bd., 203 W. Va. 583, 590 n.6, 509
S.E.2d 864, 871 n.6 (1998). In other words, we may “interpret state constitutional guarantees
in a manner different than the United States Supreme Court has interpreted comparable
federal constitutional guarantees.” Peters v. Narick, 165 W. Va. 622, 628 n.13, 270 S.E.2d
760, 764 n.13 (1980).
The order of the circuit court and the briefs of the parties failed to cite to any
prior decision of this Court addressing the issue of whether our state constitution permits
one-party consent to electronic surveillance in the home of a suspect without a warrant.
However, this Court has previously addressed the issue. The issue arose in a case that was
decided approximately one year before the Act was created.
In State v. Thompson, 176 W. Va. 300, 342 S.E.2d 268 (1986), the police had
information that the defendant was selling drugs. As a result of this information the police,
without a warrant, placed a radio transmitter on the informant and sent him to the defendant's
home. While in the defendant's home, the informant purchased drugs, and the transaction
was monitored and recorded by the police. The defendant was subsequently prosecuted and
found guilty of drug trafficking. One of the issues raised on appeal was that it was error to
introduce the tape recording of the drug transaction. The defendant alleged that the tape
recording was made in violation of article III, § 6 because the police did not obtain a warrant
to have the informant enter his home with an electronic surveillance device. This Court
disagreed. In doing so, this Court very briefly looked at its prior decision that involved one-party consent surveillance outside the home. (See footnote 46) Based upon that decision the Court tersely
reasoned as follows:
The Court also believes that the defendant's contention that the
surveillance was made without a warrant and uninvited
constituted an illegal search and seizure is without merit. . . .
. . . .
Taking the [prior decision into consideration], it is clear that a
warrantless electronic recording of a defendant's conversation
made before his Sixth Amendment right to counsel has attached,
and made with the consent of a participant to the conversation
who, unknown to the defendant, is acting in concert with the
police, does not violate the prohibition against unreasonable
searches and seizures guaranteed by the Fourth Amendment to
the United States Constitution and by article III, section 6 of the
West Virginia Constitution.
Clearly the tape involved in the case presently before the Court
was made with the knowledge and consent of [the informant].
At the time the defendant had neither been arrested nor indicted.
. . . We believe that the tape was admissible into evidence.
Thompson, 176 W. Va. at 305-06, 342 S.E.2d at 273-72.
We are troubled by the complete lack of any analysis in Thompson on the issue
of the expectations of privacy in the home. In reaching the conclusion that article III, § 6
allows the police to invade the privacy of a citizen's home, through an informant wearing an
electronic surveillance device without judicial authorization, the Thompson opinion did not
provide one sentence discussing the privacy in the home that article III, § 6 is designed to
protect. Thompson assumed, without discussion, that no difference existed between a
person's reasonable expectations of privacy in his/her home, versus the privacy a person
expects outside the home. See State v. Peacher, 167 W. Va. 540, 567-68, 280 S.E.2d 559,
578 (1981) (“A person's expectation of privacy in his automobile is less than that which he
would have in his home[.]”). This assumption by Thompson guts article III, § 6 and makes
it a hollow constitutional protection from unreasonable searches and seizures in the home.
“There is no question . . . that activities which take place within the sanctity of
the home merit the most exacting [article III, § 6] protection.” State v. Lacy, 196 W. Va. 104,
111, 468 S.E.2d 719, 726 (1996). This Court has long held that article III, § 6 “protect[s] the
rights of citizens from unreasonable searches and seizures in their houses.” State v. McNeal,
162 W. Va. 550, 555, 251 S.E.2d 484, 488 (1979). For this reason, the jurisprudence of this
Court addressing article III, § 6 has “drawn a firm line at the entrance to the house. Absent
exigent circumstances, that threshold may not reasonably be crossed without a warrant.” State v. Craft, 165 W. Va. 741, 755, 272 S.E.2d 46, 55 (1980) (internal quotations and
citation omitted). That is, with limited exceptions, “any search of a person['s] . . . dwelling
on mere suspicion and the seizure of any article found as a result thereof, without . . . a
search warrant, is an unlawful search and seizure in violation of Section 6, Article 3 of the
Constitution of West Virginia.” Syl. pt. 1, in part, State v. Smith, 156 W. Va. 385, 193 S.E.2d
550 (1972). See also State v. Slat, 98 W. Va. 448, 449, 127 S.E. 191, 192 (1925) (“Any
search of a person's house without a valid search warrant is an unreasonable search, under
section 6, art. 3, [of the] Constitution of West Virginia[.]”). We underscored the significance
of the expectations of privacy in the home in State v. W. J. B., 166 W. Va. 602, 612, 276
S.E.2d 550, 556 (1981):
[T]here is still basic vitality to the ancient English rule that a
man's home is his castle, and he has the right to expect some
privacy and security within its confines. This rule arises from a
societal recognition that the home shelters and is a physical
refuge for the basic unit of society[,] the family. In the criminal
law there is a marked recognition of this fact, as shown by the difference in the right to arrest a criminal without a warrant[,] as
between his home and a public place.
W. J. B., 166 W. Va. at 612, 276 S.E.2d at 556.
This Court's long history of protecting the sanctity of the home from
warrantless searches and seizures counsels against allowing Thompson to stand. In Syllabus
point 2 of Dailey v. Bechtel Corp., 157 W. Va. 1023, 207 S.E.2d 169 (1974), this Court held:
An appellate court should not overrule a previous decision
recently rendered without evidence of changing conditions or
serious judicial error in interpretation sufficient to compel
deviation from the basic policy of the doctrine of stare decisis,
which is to promote certainty, stability, and uniformity in the
law.
Our decision to depart from stare decisis is based upon a “serious judicial error” in the Thompson opinion. (See footnote 47) That error was the complete obliteration of the bright line this Court
has historically drawn between searches and seizures in the home, versus searches and
seizures outside the home. Thompson failed to acknowledge the existence of this distinction.
Consequently, we now hold that it is a violation of West Virginia Constitution article III, §
6 for the police to invade the privacy and sanctity of a person's home by employing an
informant to surreptitiously use an electronic surveillance device to record matters occurring
in that person's home without first obtaining a duly authorized court order pursuant to W. Va.
Code § 62-1D-11 (1987) (Repl. Vol. 2005). To the extent that State v. Thompson, 176
W. Va. 300, 342 S.E.2d 268 (1986), holds differently, it is overruled.
We are mindful that, in addition to Thompson, the wording of the state's
electronic surveillance Act permits an informant to enter the home of a suspect with a
recording device without judicial authorization. However, our rejection of the Thompson decision does not require invalidation of the one-party consent provision of the Act. It is a
longstanding fundamental principle of law that “[w]herever an act of the Legislature can be
so construed and applied as to avoid a conflict with the Constitution, and give it the force of
law, such construction will be adopted by the courts.” Syl. pt. 3, Slack v. Jacob, 8 W. Va.
612 (1875). See State v. Siers, 103 W. Va. 34, 36, 136 S.E. 504, 505 (1927) (“[I]t is a rule
of constitutional interpretation that, when two constructions may be placed upon a statute,
one of which renders it constitutional and the other unconstitutional, it is the duty of the
courts to so limit the statute as to make it comply with constitutional requirements.”). Our
ruling today merely limits the one-party consent provision of the Act from being used to send
an informant into the home of a suspect to record communications therein without having
obtained a search warrant authorizing such conduct. Therefore we hold that, Article III, §
6 of the West Virginia Constitution prohibits the police from sending an informant into the
home of another person under the auspices of the one-party consent to electronic surveillance
provisions of W. Va. Code § 62-1D-3(b)(2) (1987) (Repl. Vol. 2005) where the police have
not obtained prior authorization to do so pursuant to W. Va. Code § 62-1D-11 (1987) (Repl.
Vol. 2005).
Turning to the facts of this case, there is no dispute. The police failed to obtain
judicial authorization to send the informant into Mr. Mullens' home while the informant was
wearing an electronic surveillance device. Consequently, the trial court should have granted
Mr. Mullens' motion to suppress the electronic surveillance recordings obtained in his home
by the informant. Insofar as Mr. Mullens entered a conditional plea of guilty, on remand he
may exercise his right to withdraw the guilty plea and let a jury decide his fate. (See footnote 48)
This sentence was suspended, and Mr. Mullens was placed on two years probation.
The parameters of a conditional plea are outlined in Rule 11(a)(2) of the West Virginia Rules of Criminal Procedure as follows:
Conditional Pleas. With the approval of the court and the
consent of the state, a defendant may enter a conditional plea of
guilty or nolo contendere, reserving in writing the right, on
appeal from the judgment, to review of the adverse
determination of any specified pretrial motion. A defendant
who prevails on appeal shall be allowed to withdraw the plea.
See also State v. Lilly, 194 W. Va. 595, 461 S.E.2d 101 (1995) (Cleckley, J., concurring)
(discussing conditional pleas).