State v. Mullens

may petition for license Tatterson, Respondent S.E.2d before W.Va. ics v. (3) reinstatement; Respon- supervision of (1986). Additionally, the Board asks us year period factor of one aggravating practice further of for of dent’s law to consider (4) $15,000 reinstatement; report the full immedi- neglecting following and Respondent Bankrupt- States Boggs to the United personal loan Mr. of the outstand- ate restitution to had filed as cy Respondent percent Court in which interest plus ten ing loan balance (5) loan; debtor. payment and of date of the from the proceedings to the Board. of these costs Respondent asserts mitigating factors repay his stated intent in addition to suspended. License a client that the loan involved loan include he continues to relative who was a whom report failure

represent and his his bankruptcy was due to

loan in case his pro- knowledge bankruptcy

lack of about Respondent’s

ceedings. appreciate we While they ab-

explanations, do not believe we pat- being for his

solve him from sanctioned However, of we take stock tern misconduct. S.E.2d testimony heai'ing and client’s Virginia, Appellee, of West STATE leniency used in fashion- request be note client’s

ing a We also sanction. seeking discipline, apparent ambivalence MULLENS, Appellant. Eddie clearly his withdrawal evidenced No. 33073. give complaint. of the We reinstatement con- to the fact that client weight some Appeals represent Respondent tinues call on Virginia. West despite legal Respon- him in other matters lapse in this ease. dent’s ethical Nov. 2006. Submitted aggravating mitigating Balancing the Feb. Decided case, that the in this we find circumstances li- of a six month recommendation Dissenting Opinion Board’s Justice in- unduly suspension Benjamin April cense severe sixty-day suspension of Re- impose stead regards, In all other

spondent’s law license. adopt the recommended sanctions of

we

Board.

IV. Conclusion above, con- upon the this Court

Based against Respondent charge

cludes that 1.8(a) Virginia violating Rule of West prov- has been

Rules of Professional Conduct convincing Our

en evidence.4 clear aggravating and

considered review case us to

mitigating factors in this causes following proven

impose for the sanctions (1) Respondent’s Suspension of

misconduct: period sixty days; law license for

completion con- of twelve additional hours of

tinuing legal education in the area of ethics charge allegations must Virginia yer, the formal Rules

4. See 3.7 of the West Rule ("In evidence.”) Lawyer Disciplinary convincing order to rec Procedure proved clear and imposition discipline any law- ommend McGraw, Jr., General, Darrell Attorney V. Barry Koerber, Attorney L. Assistant Gener- al, Charleston, Appellee.

DAVIS, Chief Justice: (hereinafter Mullens”) Eddie Mullens “Mr. appeals an order Circuit Court of County Boone sentencing him to a term of years one to five imprisonment,1 after enter- ing a guilty plea conditional charge to a delivery of a controlled substance.2 Pursu- ant to the terms guilty of the conditional plea, Mr. assigns Mullens error to the circuit court’s denial suppress of his motion to recording audio and video drug of the trans- action that occurred in his home. Mr. Mul- lens asserts that the audio and video record- ing should suppressed have been because the evidence was obtained an informant act- ing under the color of law without court order. After careful consideration of the briefs, record arguments, and oral we find that the circuit suppressed court should have recording audio and video in this case. Accordingly, Mr. Mullens’ conviction and sen- reversed, tence are and this case is remand- permit ed to him to guilty plea. withdraw his I. AND

FACTUAL PROCEDURAL HISTORY 11, 2003, On December law enforcement agents Drug with the U.S. 119 and Violent (hereinafter Crimes Task Force “Task Force”)3 employed a confidential informant illegal drug to make an purchase at Mr. Mullens’ home.4 The Task equipped Force Benjamin Conaway, Conaway M. & Cona- the confidential informant awith hidden au Madison, way, Appellant. dio and video device.5 The Task suspended, This Lilly, sentence was and Mr. Mullens See also State v. 194 W.Va. 461 S.E.2d placed years probation. J., on two (Cleckley, concurring) (discussing pleas). conditional parameters plea 2. The aof conditional are out- 1(a)(2) Virginia lined in 1Rule of the West Rules by Deputy 3. The Task Force was led Sheriff Chad of Criminal Procedure as follows: Barker. approval Conditional Pleas. With the of the state, reasons, security court and the consent may For a defendant the record does not dis- plea guilty identity enter conditional close the nolo of the confidential informant. contendere, reserving writing right, on appeal judgment, 5. This "electronic from the to review surveillance device Lis] com- any specified pretrial monly body adverse referred determination of to as a wire[.]” State v. Dillon, 648, 652, prevails appeal motion. A defendant who 191 W.Va. 447 S.E.2d plea. shall be allowed to withdraw the denying suppress Mr. did not obtain authorization to motion evi- Force Mullens’ the confidential informant to use the allow through the of an dence obtained use elec- surveillance device while inside electronic In examining tronic surveillance device. Mr. Mullens’ home. challenge ruling sup- circuit court’s in a pression hearing, guided we are the fol- evening theOn of December the confi- lowing standard of review. informant Mr. dential went to Mullens’ home. The confidential informant was invited into appeal, legal On conclusions made with wife, home Mr. Mullens and his Jessi- regard suppression determinations are home, ca Mullens. Once inside the the confi- reviewed de novo. Factual determinations purchased grams informant dential 3.23 legal which these conclusions are marijuana. The surveillance electronic de- clearly based are under the reviewed erro- vice worn informant confidential re- addition, neous standard. factual find- drug purchase. corded based, ings part, on least determina- 2004, September 22, a grand jury On re credibility tions witness are accorded Mr. against turned indictment Mullens great deference. wife, charging and his them with one count of 3, Stuart, Syl. pt. State v. 192 W.Va. 452 delivery of a controlled substance and one (1994). 886 as the S.E.2d Insofar circuit conspiring count of to deliver controlled ruling suppression on court’s motion in Mr. filed a substance.6 Mullens motion to determinations, purely legal volved we re recording suppress the audio and video view the circuit court’s de order novo. drug asserting transaction the federal state constitutions and state electronic judicial III. required surveillance laws authoriza for the tion confidential informant to enter home with the electronic surveillance DISCUSSION de motion, holding hearing After

vice. on the requires appeal The instant us to decide circuit court entered an order on Novem can, police prior impar- whether 16, 2005, denying suppress. ber the motion to authorization, person tial solicit a upon The circuit ruling court’s was based informant, equip serve as confidential United States Court’s decision in with an electronic surveillance device White, U.S. 91 United States S.Ct. any and send into the home of citi- him/her 1122, 28 L.Ed.2d police arbitrarily decide to zen investi- consequence aAs of the circuit court’s gate. impact Court’s resolution this denial of the motion Mr. suppress, Mullens presented the issue herein reaches literal- plea agreement entered the State. ly every into the home of citizen of our State. agreement, pled Under Mr. Mullens import ruling our in this The immense guilty charge delivery a con- case demands that leave no stone un- we substance, upon trolled the condition that he reaching unread in turned and no footnote appeal allowed to of his the denial motion analysis our decision. For this reason our By suppress. order entered November (1) proceed with an examination of feder- will accepted plea the circuit court (2) laws, al electronic surveillance electronic Mr. agreement and sentenced Mullens to states, and surveillance laws of other year's of 1 imprisonment.7 term From Virginia’s surveillance West electronic laws. ruling, appeals. Mr. Mullens now An of an A. Electronic Informant’s Use II. Surveillance in the Home of Device Another under Federal Laws STANDARD OF REVIEW suppress In Mi'. motion to he We have been Mullens’ called decide argued prohibition the circuit whether court committed error in unlawful indicated, previously 6. The the sentence record does not disclose information 7. As was sus- disposition against pended, placed proba- and Mr. about of the case Mr. Mullens was Mullens’ wife. tion. electronic in the area of seizure, cal advancements the Fourth under search constitution, Inc., DirecTV, was the federal See Snow v. surveillance. Amendment (“The (11th Cir.2006) to obtain failure of the violated ECPA F.3d an informant to have judicial authorization existing fed- update the then enacted to was video wearing an audio and his home enter privacy of protect the wiretapping law to eral found circuit court device. communi- of electronic growing number that, decision of the United upon the based cations.”).11 further amended Title III was States Supreme Court United States for Law Assistance the Communications White, 91 S.Ct. 401 U.S. Act of 1994.12 Enforcement the Fourth L.Ed.2d White, Before we discuss violated. was not history long suggested that It has been the federal electronic first examine we must sur in the area of electronic of federal law statutes. surveillance attempts by Con reveals veillance devices un- electronic surveillance 1. Federal in the inves law enforcement gress “to assist law, the use of III. federal der Title Under organized crime tigation prosecution of by law en- devices electronic surveillance United protect privacy rights of and to initially governed forcement officials in against unwarranted States citizens Federal provisions contained general Daniel terception of.. .communications[.]” However, in Act of 1934.8 Communications Allowed to Dinger, Parents Be R. Should Congress enacted detailed electronic 1968 Telephone Conversations Record a Child’s III through Title of laws surveillance Danger?: They Believe the Child Is When Streets Control and Safe Crime Omnibus Wiretap the Federal An Examination of comprehensive III “sets forth Act.9 Title Con the Doctrine Vicarious Statute and of ... governing the use of electronic standards Prosecu Context a Criminal sent in the of pri- governmental both surveillance (2005). 955, tion, 958 28 Seattle U.L.Rev. Forsyth, v. 472 U.S. agents.” Mitchell vate short, represents attempt Title III an “In 2806, 2809, 515, 511, 86 L.Ed.2d 105 S.Ct. system electronic Congress to of establish (1985). 1986, 411, Congress amended 418 subject rigorous safeguards.” surveillance through enactment of the Electronic Title III Clemente, 102, F.Supp. 482 (hereinafter States v. United Privacy Act Communications (S.D.N.Y.1979). “ECPA”),10 technologi- 106 in an effort to reflect protec the same electronic communications’ provision of Federal Commu- relevant 8. The interceptions against that Ti § unauthorized tions at 47 U.S.C.A. 605 Act is found nications providing 'wire’ for 'oral’ and (2001). tle III had been prohibits the unauthorized This statute wire, via carrier transmis communications common interception radio or satellite delivered of necessary by found This extension was sions. programs. changes Congress in new because of 'dramatic technologies’ computer and telecommunications wiretapping regulates and elec- III both 9. Title 'privacy and securi had created new risks to mat- So as not to confuse tronic surveillance. by new non- ty transmitted of communications ters, surveil- the term "electronic our use of or new carrier communication services common wiretapping forms and all other lance" includes computer tech forms of telecommunications of surveillance. by Title nology.' covered These had been protection trans of 'voice communications Ill’s Privacy Act Electronic Communications 10. carrier,’ and the ECPA mitted via common 3121, § et amended at 18 U.S.C.A is codified as designed remedy that new were amendments intercept- seq. Act standards for This establishes coverage.’’). ly-developed gap in through pen ing telephone the use of numbers registers trap devices. and trace "requires carri Act telecommunications 12.This technically systems are that their component ers to ensure called The ECPA had a second enabling agencies capable law enforcement Act established Communications Act. This Stored authority intercept operating proper legal accessing with punishments the unauthorized for telephone certain calls and to obtain individual communication that is in elec- wire or electronic " 2701, seq. 'call-identifying United States § information.' storage. ei See 18 U.S.C.A tronic v. Federal Communications Telecom Ass’n Comm’n, (D.C.Cir.2000). Waddell, The seq. 227 F.3d 50 F.3d 11. See also Brown § Cir.1995) ("The et (4th at 47 U.S.C.A. purpose Act is codified principal extend to to Title III was to ECPA amendments exceptions prohibition One of the surveil federal electronic pertinent unauthorized electronic surveillance found III are codified of Title provisions lance 2511(2)(c). § This statute in 18 U.S.C.A. statutes seq. § et These U.S.C.A. provides: attempt to strike what “represent[ ] (c) not be unlawful under this It shall regula stringent through clearly a balance acting under color chapter person for a of electronic surveillance tion of the uses oral, wire, intercept a or electronic law to purpose protect the dual order to achieve communication, person where such is a limit permitting privacy, while ing individual party the communication or one of the in accordance government ed surveillance given has parties to the communication Application uniform standards.” with interception. prior consent to such Interception Wire Authorizing the U.S. added).17 (Emphasis Communications, F.Supp. (E.D.Pa.1976). statute, Except specifically party codi of one for Under this “consent permit prohibits the unau to a conversation is sufficient Title III exceptions, fied [lawfully] acting color of law to under record another’s of a device to thorized use wire, oral, communi intercept a or electronic requires Title III communication.13 Pratt, 913 F.2d cation.” States United authorization, circum except in limited Cir.1990) (internal (1st quotations stances, recording the communications omitted). have established Federal “[c]ourts surveillance dev another an electronic private that informants who record conversa III, criminal and civil Under Title ice.14 investi tions at the direction imposed for the unauthorized penalties are ” color of gators ‘acting under law.’ to record the communication use of device Haimowitz, 725 F.2d States v. United person.15 Title III also contains of another Cir.1984) omitted). (11th (citations remedy pro evidentiary suppression case, unlawfully purposes inter of this is clear suppression of For the vides for the authority statutory for federal there is cepted communications.16 ing the information was III contained reason to know that prohibitions under Title 13.The 2511(1) through interception § of such a as follows: obtained in 18 U.S.C.A. (1) with a in connection criminal specifically provided communication Except as otherwise (iii) investigation, having any or received chapter person who- obtained in this (a) intercepts, intentionally to in- with a criminal endeavors the information in connection any person (iv) tercept, procures improper- inter- investigation, or other to with intent to and wire, oral, intercept, any cept obstruct, or endeavor to duly ly impede, with a or interfere communication; electronic or investigation, pun- shall be authorized criminal use, uses, (b) intentionally or endeavors to (4) provided or shall be in subsection ished as procures any person endeavor other to use or (5). provided subject in subsection to suit as electronic, mechanical, any or other to use any intercept device oral communication to §§ 18 U.S.C.A. 2516 and2'518. See discloses, (c) intentionally to or endeavors 2511(4) § 15. See 18 U.S.C.A. disclose, any person the contents of to other communication, wire, oral, any or electronic and25l8(10). §§ 18 U.S.C.A. See having knowing to know that the or reason through the inter- information was obtained wire, oral, ception exception or electronic communi- under 18 U.S.C.A. of is set out 17. Another subsection; l(2)(d) of cation in violation this § as follows: uses, use, (d) intentionally to or endeavors (d) chap- under this It shall not be unlawful wire, oral, any electronic of or the contents person acting color law to under ter for a communication, knowing having to or reason oral, wire, intercept or electronic communi- was obtained the information know through party to the such cation where wire, oral, interception or of a parties to or where one communication in violation of electronic communication given prior consent to the communication has subsection; or interception such communication unless discloses, such (e) (I) intentionally endeavors or committing intercepted purpose of for the disclose, any person the contents of other any in violation of the communication, tortious act wire, oral, criminal or any or electronic States of the United or Constitution or laws intercepted means authorized sections 2511(2)(b)-(c), 2511(2)(e), l(2)(a)(ii), State. added). (ii) knowing (Emphasis chapter, hav- and 2518 of this an place electronic surveillance No warrant to “search officials and seize” is re- informant, ... quired when the consenting on a Government sends to device authorization, home a purpose agent defendant’s secret who con- for the of re- identity his purchase ceals makes a cording third-party communications with accused, narcotics or when the suspect. The issue of whether or not the use agent, defendant, unbeknown same to the manner, an informant in this while in the equipment electronic carries record the suspect, home violates Fourth defendant’s words and the so evidence Amendment was addressed in the White de- gathered is later offered in evidence. cision. 2. United and the States White Concededly police agent who conceals his Amendment. Fourth The case United connections for offi- write down White, 401 U.S. S.Ct. States cial use conversations with a defendant L.Ed.2d 453 involved defendant testify them, concerning without a prosecuted by govern- federal who was authorizing warrant his encounters with drug trafficking. for Prior to ment the de- the defendant and without otherwise vio- arrest, arranged federal authorities fendant’s lating the latter’s Fourth Amendment have a confidential informant wear a lis- rights. purposes, For constitutional tening during meetings device with the de- required agent different result if judi- fendant. Federal did not obtain officials immediately reporting instead and tran- equip cial authorization to the informant with scribing defendant, his conversations with electronic surveillance As a device. result (1) simultaneously either records them wearing informant the electronic sur- equipment with electronic which he is car- device, veillance federal authorities were able person; rying on his or carries radio to hear conversations between defendant equipment simultaneously transmits during eight separate informant the conversations either meetings-only one of which actual equipment located elsewhere or other During home of the defendant. the defen- agents monitoring transmitting fre- trial, dant’s introduced evi- If quency. the conduct and revelations dence of the statements made the defen- agent operating without electronic dant informant.18 The defendant was equipment do not invade the defendant’s ultimately convicted. Appeals The Court of constitutionally justifiable expectations of Seventh Circuit reversed the convic- privacy, neither does a simultaneous re- tion, concluding that evidence of statements cording by of the same conversations made by made the defendant to the informant agent byor the others from transmissions suppressed, should have been because the from agent received the the whom de- evidence was obtained without a warrant in talking fendant is and whose trustworthi- violation of the Fourth Amendment.19 necessarily the defendant ness risks. White, 749-51, 401 U.S. at at 1125- S.Ct. decision, a six to three the United (internal L.Ed.2d at 457-58 citations States the reversed decision omitted). Thus, Appeals. of the Court of judgment the White plurality opin- in was rendered in a decision in prop- The White stands for the plurality justified The opinion ion.20 the an expec- osition that does not have judgment privacy Court’s as regarding follows: tation of conversations violated, issue, during testify 18. The informant did not the trial. and no Warrants shall but by cause, statements The made the defendant to probable the supported by Oath or by informant were testified affirmation, officers who were particularly describing and the listening in on the conversations. searched, place things persons to be and the or seized. to be 19. The Fourth Amendment United States provides: Constitution plurality opinion by 20.The was written Justice people The of the to be secure in their White, in Burger which Chief and Justice Jus- houses, effects, persons, papers, against and joined. tices and Blackmun Stewart seizures, unreasonable and searches shall not party. in daily held home with a third course —that life. liberates Much his/her exchange easily forgotten offhand is expectation privacy, un Without such obscurity one count of his White does not der Fourth Amendment remarks, protected by very fact of a judicial require to obtain authoriza audience, limited and the likelihood that wearing an tion to send an informant elec the listener either or forget will overlook tronic surveillance device into the home of said, what is well as the listener’s inabil- also See United States v. person. another ity to reformulate a conversation without Eschweiler, (7th Cir.1984), 745 F.2d 435 having to with a contend documented rec- (holding that informant’s use of electronic ord. All by these values are sacrificed in surveillance device home did defendant’s permits rule of law that monitoring official Amendment); United not violate the Fourth private discourse limited Hankins, (6th States v. Fed.Appx. willing need to locate a assistant. Cir.2006) (same); United States Brath waite, (5th Cir.2006) (same); 458 F.3d 376 Finally, easy forget and, too — Davis, (2nd United States v. F.3d hence, forgotten-that too often issue Cir.2003)(same). interpose here is whether a search war- Three majori- Justices dissented from the procedure rant between enforcement law in White. All ty’s judgment Justices three agencies engaging in electronic eaves- believed that Fourth re- dropping public generally. By and the quired federal officials to obtain warrant casting analysis” its in solely “risk terms of attaching before an electronic surveillance expectations “wrong- risks that informant, to an purpose device contemplating illegal doers” or “one activi- capturing suspect, conversations with a re- bear, ought ties” plurality opinion, I gardless of think, where conversations were entirely.... mark misses the The position held. The taken very the dissenters purpose of interposing Fourth dissenting opinion articulated requirement best Amendment warrant is to re- dissent, throughout of Justice Harlan. In his distribute the Justice risks so- ciety way in a prevent ... following Harlan made would observations: public engaging officials impact practice third-party of the [third-party bugging] practice they unless must, think, bugging, I be considered such probable suspect first had cause indi- toas undermine that confidence sense vidual illegal of involvement in activities security dealing with one another that and had their of the tested version facts relationships characteristic individual before a detached officer. The society.... between citizens a free majority] protect interest fails to [the argument plurality opinion, citizen, expectation ordinary who that it effect is irrelevant whether secrets engaged illegal has never conduct his are revealed the mere tattletale life, may carry private that he on his dis- transistor, ignores the differences occa- freely, openly, course spontaneously monitoring third-party sioned and re- measuring every against word cording which insures full and accurate might carry the it connotations in- when said, disclosure of all that is of free the stantaneously heard others unknown to possibility oversight of error and that in- him and unfamiliar with his situation or reporting. in heres human cold, analyzed played in a formal record Authority hardly required support is to the days, months, years or after the conversa- proposition that would words be measured Interposition require- tion. of a warrant good carefully deal more and communi- ment designed “wrong- is to shield suspected cation inhibited if one his con- doers,” privacy but of to secure measure being versations were transmitted and personal security through- and a sense of third-party bugging transcribed. society. Were out our

prevalent practice, might it smother does, course, well The Fourth Amendment of frivolous, spontaneity that in employment leave room the of for modern —reflected impetuous, enforcement, sacrilegious, technology criminal and defiant dis- law developments understanding yet of current of Americans who have but the stream sensitivity “qualitative think it some in Fourth Amendment law I must differ- third-party monitor- ence” between electronic surveillance and be held that electronic only police investigation. the of ing, subject self-restraint law conventional officials, place no in our has enforcement Shokrai, R. Mona Double-Trouble: The society. Underregulation Surreptitious Video Sur 787-91, White, at 91 S.Ct. 1143- Conjunction 401 U.S. veillance in with the Use of (Harlan, J., at 478-80 dissent Investiga 28 L.Ed.2d Snitches Domestic Government omitted). (internal tions, ing) (2006)(quot citations & Rich. J.L. Tech. Conom, ing Privacy Tom P. Fourth White, dissenters addition Century, Twenty-First Amendment argued that the Fourth scholars have (1995)). 19 CHAMPION require a warrant Amendment should police plurality, an informant The White send discus- issued before wealing analysis or suspect’s home while elec- sion doctrinal shift an- into a following States, tronic device. The is nounced in United [Katz surveillance U.S. cursory of White 88 S.Ct. 19 L.Ed.2d 576 ] criticisms review prior holdings reaffirmed that authorized some scholars: private unchecked surveillance of conver- dissent in States v. Justice Harlan’s United private sations and unbridled invasions against unsupervised use of White warned homes and offices whenever informants people. government power spy on the gather available information urged He that electronic and false-friend government. If the “Fourth Amendment permitted only ... be surveillance under protects people, places,” and not as Katz requirements of the Fourth the warrant insisted, why inap- then is Amendment Amendment, government that so intrusion plicable against government efforts rec- magistrate agrees if a possible with is ord or homes conversations infiltrate or government probable there using If offices secret informants? principles for the Respect cause. un Fourth Amendment restrains discre- and the derlie the Fourth Amendment re police “bug” pri- tion of to wiretap it, produced no bellion that demands less. (conducted telephone vate conversations By declaring ... one has reason booths), why apparent it is not that same expectation speaking able when piwision inapplicable when another, the Court with removes conversa private monitor and record conversations protections tion of the Fourth through the use of secret informant de- Amendment, leaving power liberately position(ed) to hear those con- becomes unchecked. Amendment all, After versations. a secret informant promise. empty, mocking, bug” government. acts as a “human for the has thus function in abdicated lay at the an area so sensitive heart Maclin, Katz, Tracey Kyllo, Technology: of the revolution. Virtual Fourth Amendment Protection in Century, Twenty-first 72 Miss. L.J. Doemberg, L. Hear Donald “Can You Me Privacy, Expectations Now?”: False (2002). Friends, Speaking Perils and the under public It cannot be denied that one risks Court’s Fourth Ju- private thoughts any revelation of time one risprudence, 39 Ind. L.Rev. 306-08 again, takes on a confidante. Once howev- er, assumption . Court’s of the risk/im- analysis plurality truly plied air willing Unless the White consent takes on an fantasy.... society analysis American the uni- The Court’s in its saddle un- every may dangerous dercover versal risk that conversation be cases is based on a monitored, electronically premise: expect privacy then White we should plurality only illogical government is not and un- from when do not view we ex- Moreover, it it If pect premise is absurd. from others. were reasonable —it de- seriously, only sphere fies sense as well as the common taken of common unnecessary protected govern- Constitution, still police cannot decide kept intrusion be ment would what we home.”). they themselves when will enter a ourselves_ White, Notwithstanding the criticisms of Furthermore, activity undercover is more the decision remains the law for Fourth likely types than other of searches to occa- Thus, purposes. insofar as the prolonged people’s sion insinuation into circuit court found that the Fourth Amend- privacy. typical In the search and seizure ment was not violated the conduct of the scenario, target can minimize the in- police case, in this ruling was correct. by consenting particular trusion actions proving his or her innocence some B. An Informant’s Use of an Electronic way. government proceeds When co- Surveillance Device in the Home of An- vertly, however, options these are not other under the of Laws Other States denigration available. Added to this of III, Pursuant damage individual interests is the to Title under- U.S.C.A. 2516(2), policé § cover work causes the democratic states are authorized adopt “to objective remaining state’s legitimate. permitting coordinate statutes intercep First, deceit, because relies on fraud and wire, oral, tion of or electronic communica investigation covert undermines trust tions, grant greater, lesser, and to but not government. importantly, More it in- protection than that available undér federal everyone, anyone creases distrust since Spangler, law.” Commonwealth v. 570 Pa. government agent.... could be a (2002). 226, 231-32, 809 A.2d 234 See also Thus, ... activity undercover undercuts State, Bishop Ga.App. 526 S.E.2d both the state’s in maintaining interest (1999); Barboza, Commonwealth v. allegiance citizenry objective of its and its (Mass. Mass.App.Ct. 763 N.E.2d 547 nurturing open, society. democratic 2002).21 majority jurisdictions A have fol possible effects, Because of these one lowed the federal and enacted might argue activity that undercover electronic patterned surveillance statutes af least, judicial should be banned.... At the ter Title III. The discussion of electronic prior authorization should be obtained surveillance proceed laws other states will any nonexigent activity.... undercover (1) parts: in two states that do not have Title Christopher Slobogin, The World Without a type III statutes, electronic surveillance Amendment, Fourth 39 UCLA L.Rev. type states Title III electronic sur Tracey Maclin, 103-05 See also In- veillance statutes. and the Fourth Amendment: A formants 1. States that do not have Title III type Reconsideration, U.L.Q. 74 Wash. electronic surveillance statutes. There are (1996) (“[W]hen open my I front door to a five adopted states that have not Title III friend, overnight worker, delivery or to type electronic surveillance statutes: Ala- complete stranger, access is afforded bama, Kentucky, Michigan, Montana and knowingly to those whom I admit. If the Vermont, my home, Except Vermont. they want access to all of these should procedure. times, stealthy follow lawful At states have criminal eavesdropping statutes may necessary; entries be but generally prohibit under the the use of electronic leading In the treatise on electronic surveil- following Furthermore, regarding lance laws the was said ... a slate court construe interplay Title III and state laws: procedural requirements of its electronic legislative history clearly of Title III strictly surveillance law more than federal Congress permit indicates that courts, intended to thereby giving meaning added state electronic surveillance laws to be more statutory guarantee state's constitutional or provisions, restrictive than the federal privacy. protective privacy. therefore more of individual Carr, James G. The Law Electronic Surveil cannot, however, State surveillance statutes lance, 2.4(a) (2002). § III; they less restrictive than Title expand nor can opportunities to conduct surveil- beyond provided by lance those Title III. to enter the home of a sus- having veillance device devices.22 Each state surveillance warrant, excep pect, a has been addressed provides for without criminal statutes such permits criminal statute Alabama’s Court Vermont. tions. consenting informant to police use a Blow, 602 A.2d 552 In State v. Vt. suspect. a See with record communications (1991), police used an informant to record (Ala.Crim. State, Spangler 711 So.2d 1125 v. drug transaction in the home of the defen- 13A-11-30(1) (2005). § App.1997); Ala. Stat. trial, During police officer was dant. Kentucky’s permits police also statute testify the contents of the permitted to about to record communications use an informant electronically drug transaction. recorded suspect. Carrier v. Common See with appeal, convicted. In his The defendant was 1980); wealth, (Ky.Ct.App. 607 S.W.2d argued that sur- the defendant the electronic (1999). Further, § Ky.Rev.Stat. 526.010 sup- been veillance evidence should have eavesdropping laws have Michigan’s criminal pressed because it was obtained without police interpreted permitting as been required by the search search warrant to record conversations an informant use provision of the Vermont Consti- and seizure Collins, People suspect. See with Supreme Court of tution. The Vermont (1991); Comp. Mich. Mich. 475 N.W.2d agreed with the defendant and reversed (2003). Additionally, § Mon 750.539g(a) L. opinion The in Blow reasoned as conviction. eavesdropping permit laws tana’s criminal follows: record police to use an informant suspect. See State v. convei'sations with constitutionality assessing In of tech- (1988); Brown, 232 Mont. 755 P.2d 1364 nologically government surveil- enhanced 45-8-213(l)(c)(I) (2005). § Mont.Code case, identify particular in a must lance we risk, the values that are at and vest the research did not uncover case Our reasonable-expectation-of-privacy test with Alabama, Kentucky ad or Montana which case, In the defen- using an informant to those values. instant the issue of dressed the informant the informant suspect’s enter a home while dant’s conversation with home, equipped place an electronic surveillance and there took in defendant’s However, Michigan Supreme suggest device. no indication in the record to Beavers, People Mich. expected that he the conversations to be 227 N.W.2d 511 has held beyond immediate transmitted envi- required a warrant to be state constitution rons, especially through electronic en- police an infor before the could send issued Clearly, “knowing- he did not hancement. equipped with an electronic surveil mant ly expose” the conversation to the outside suspect. the home of a lance device into world, and exhibited a clear sub- therefore Beavers, however, was overruled decision jective expectation privacy. objec- Collins, by People v. 438 Mich. 475 N.W.2d component of the ... test was met as tive (1991), a did not involve com case which that the reasonable- well. We have stated suspect’s munications in a home.23 analysis be tied to identifiable ness must un- constitutional values. One such value indicated, does not previously Vermont As der state concerns [the constitution] any statutory addressing appeal- to have laws deeply-rooted legal principle and societal using electronic surveillance de- the issue of privacy of the home solely coveted appears guided This issue to be vices. especially protected. [F]reedom should provision the search seizure speech people is undermined where fear spite of the absence constitution. state’s they law, speak unconstrainedly sup- any statutory using an what the issue of pose to be the of home and office. equipped with an electronic sur- informant permit provide It must be assumed that Collins would in these stales do not 22. The statutes procedures authorizing police III of Title the home of elaborate to send an informant into judicial authorization, surveillance officers. electronic suspect, while states, general must utilize these equipped the informant was with an electronic engage in in order to elec- search warrant laws surveillance device. tronic surveillance. 81 patterned surveillance statutes Title after statutes, III, generally III.24 These like Title We conclude that warrantless electronic prohibit electronic surveillance the ab monitoring in a participant conducted However, judicial sence authorization. home offends the core values con- [our jurisdictions while most of these follow Title Accordingly, stitution]. where State statutorily recognize one-party III agent con uses an to enter a home for the surveillance, electronically jurisdic sent eliciting to electronic some purposes of transmitting occupant tions do not. For this our evidence from an reason discussion home, parts: this section will be into is the burden of State to divided two (a) probable prior one-party obtain a III type warrant cause states with Title con (b) conducting statutes, search. sent states without Title III type one-party consent statutes. (citations Blow, 602 A.2d 555-56 and inter- omitted). quotations nal See also State (a) type one-party Staten Title III ivith Geraw, 350, 173 Vt. A.2d jurisdictions A connent ntatuten. total of (2002)(holding police working that a officer by statutorily authorizing III follow Title undercover cannot enter a defendant’s home one-party consent to electronic surveillance. with an electronic surveillance device without is, jurisdic That under the statutes of these warrant). a search tions, do need authori type with Title III zation to conduct if States electronic electronic surveillance stated, previously party surveillance statutes. As one the communication consents to majority jurisdictions recording.25 have electronic 12.37.010, (2006); seq. following one-par § jurisdictions See Alaska Stat. et 25. authorize 13-3001, (2001); seq. § Ariz.Rev.Stat. et Ark. ly § consent statute: Ariz.Rev.Stat. 13- (2005); § Code 3012(9) 5-60-120 Cal.Penal Code 5-60-120(a) (Supp.2006); §§ Ark.Code 629.50, (1999); seq. § § et Colo.Rev.Stat. 16-16- (c) (2005); (1999); § & Cal.Penal Code 633.5 101, 53a-l87, (2006); seq. §§ et Conn. Gen.Stat. (2006); §§ 18-9-303 Del. Colo.Rev.Stat. & 304 54-41a, (2001); 11, seq. seq. et & et Del.Code tit. 11, 2402(c)(4) (2001); § Code tit. D.C.Code 2401, (2001); 23-541, seq. § § et D.C.Code et 23-542(b)(2) (2001); 934.03(2)(c) § § Fla. Stat. (2001); 934.01, (2001); seq. seq. § Fla. Stat. et (2003); l-66(a) (Supp.2007); § Ga.Code 16-1 16-11-60, (2003); seq. § et (1993); Ga.Code Haw.Rev. (1993); 803-42(b)(4) § Haw.Rev.Stat. Idaho 803-41, seq. § § Stat. et Idaho Code 18- 18-6702(2)(c) (2004); § Code Iowa Code 720, 6701, (2004); seq. Comp. et Ill. Stat. ch. (2003); § 808B.2.2.b La.Rev.Stat. (2003); 35-33.5-1-5, § § seq. Ind. Stat. et 5/14-1 15:1303(0(3) (Supp.2006); § Me.Rev.Stat. til. (1998); 808B.1, (2003); seq. § Iowa Code et ; 15, 709(4) (2003); § Md. Jud. Pro.Code Cts. 22-2614, (1995) seq. § Kan. Stat. et La.Rev. 272, 10-402(c)(2) (2006); § L. Mass. Gen. ch. 15:1301, (2005); seq. § Stat. et Me.Rev.Stat. tit. 99(B)(4) (2000); 626A.02(2)(c) § § Minn.Stat. 709, 15, (2003); seq. § et Jud. Md. Cts. Pro.Code 41-29-531(d) (2003); (Supp.2006); § 10-401, Miss.Code (2006); seq. § et L. ch. Mass. Gen. 542.402(2)(2) (2002); 626A.01, § (2000); § Mo. Neb.Rev.Slal. seq. § Slat. Minn.Stat. et (2003); 702(2)(b) 41-29-501, (1999); (1999); seq. § § § Miss.Code N.M. Stat. 30-12- et 86— 542.400, (2002); (2004); 700.05(3) seq. 1(E)(3) § § Mo. Stat. et Neb.Rev. Stat. N.Y.Crim. Pro. 86-701, (1999); seq. § 15A-287(a) Stat. (1996); (2005); et Nev.Rev.Stat. § N.C. Gen.Stat. 179.410, (2005); § seq. § et N.H.Rev.Stat. 570- (2006); § N.D. Cen.Code Rev. 29-29.2-05 Ohio A:l, (2003); 2A:156A-1, seq. seq. § et Stat. N.J. et 2933.52(B)(4) (2006); § Code Okla. Stat. tit. (1985); 30-12-1, (2004); seq. § N.M. Stat. et 176.4(4) 17-30-30(B) (2002); § § S.C.Code 700.05, (1996); seq. § N.Y.Crim. Pro. Stat. et (2006); (2004); § S.D. Codified L. 23A-35A-20 15A-286, (2005); seq. § N.C. Gen.Stat. et N.D. 16.02(c)(3) (Supp.2006); § Tex. Pen.Code Utah 29-29.2-01, (2006); § seq. Cen.Code et Ohio (2003); 77-23a-4(7)(a) § § Code Va.Code 19.2- 2933.51, (2006); seq. § et. Rev.Code Okla. Stat. 62(B)(2) (2004); (2)(b) (Supp. § Wis. Stat. 968.31 176.1, seq. (2002); § tit. et Ore.Rev.Stat. (1998); 2006) 7-3-702(b)(I) (2005). Wyo. § Stat. 133.721, 165.535, (2005); seq. seq. § § et & et (2000); seq. § Pa. Stat. et very Consol. tit. California's statute authorizes narrow 12-5.1-1, (2002); seq. § R.I. L. Gen. et S.C.Code one-party circumstances in which consent elec 17-30-10, (2006); § seq. et L. S.D. Codified so, tronic suiveillance occur. Even 23A-35A-1, (2004); § seq. § et Tenn.Code 40-6- recognized a Court of California has (2006); seq. et Tex.Code Pro. Crim. Arts. general one-partv rule that consent electronic (Supp.2006) 18.20 & 18.21 & Tex. Pen. People permissible. Tow surveillance is See 16.01, (2003); seq. § § Code et Code Utah 77- ery, Cal.Rptr. Cal.App.3d 23a-1, 19.2-61, (2003); seq. seq. § et Va.Code et (1985). 968.27, (1998); (2004); seq. § Wyo. Wis. Stat. et 7-3-701, seq. § Stat. et provision statutorily the search and seizure au- whether Only jurisdictions that six police to constitution allowed the of elec- the state’s one-party consent for use thorize suspects, into the have send an informant home devices addressed tronic surveillance warrant, to record communications. informant without context the issue in issue, resolving in the of a the Blood decision home In recording communications Massachusetts, Florida, Ohio, Supreme Court’s Mis- States suspect: rejected United Wisconsin, White, Among Wyoming. found that the Massa- ruling and sissippi, these, Supreme required Courts the decisions of the Constitution issuance chusetts opinion particularly reasoned warrant. The Blood Florida and Massachusetts search as follows: instructive. any disclosing circumstances [I]n (Fla. Sarmiento, 397 So.2d In v. 643 State beyond a cast speaker’s intent to words 1981), rejected Supreme Florida Court listeners, compass we of known narrow that ruling in White and held the search to objectively that reasonable it is conclude provision of the state constitution and seizure in a interchange expect that conversational using an elec prohibited an informant from surrepti- private home not be invaded will suspect’s in a home device tronic surveillance transmis- tiously electronic warrantless response judicial authorization.

without remaining question recording. The sion Sarmiento, people-of to the decision alters party consent” so is whether “one amended the state’s constitutional Florida need for as to obviate the the balance that provision require to search and seizure requirement. It not. Such does warrant conformity 4th with the it be “construed only person the State a consent affords to the United States Constitu instru- willing transport to the invisible tion, interpreted by the United States into eavesdropping “earshot.” ments 1, § 12 Supreme Fla. Const. art. Court.” amendment, the As a result of this Hume, Supreme in State v. Florida Court con- exception puts the ... consent [T]he (Fla.1987), re every 185 held that “the liberty person 512 So.2d in the versational cording lucky of conversations between defendant find a enough to hands of officer in a agent undercover defendant’s consenting informant. home, in the case as occurred instant such warrant], does violate [without ... on ... Commonwealth relies [T]he Con fourth amendment of the United States arguments. persuasive. None is [several] and, accordingly, does not violate stitution asserts, ac- arguments first of these I, newly adopted article section Commonwealth, be- cording to Hume, 512 So.2d Florida Constitution.” person subject to the warrant- cause the Hume, two 188. In addition the court interception “wrongdoer,” [he] less have that the search other courts held betray- be to bear the risk of should made respective provision of their state seizure argument proceeds perni- This al. secretly allows an informant to constitutions assumption, anyone subjected cious ain

wear an electronic surveillance device is, by police because of surveillance suspect’s home authorization. fact, necessarily “wrongdoer.” It is (Miss.1986) State, See v. 489 So.2d Lee ... requirement of the warrant purpose fed (upholding surveillance under state and scrutiny of police suspicions to subject constitutions); State, v. eral Almada magistrate instead a neutral detached (Wyo.1999) (upholding surveillance P.2d 299 by the [leaving judged to be] them constitution).26 under state competitive engaged in the often officer Blood, ferreting Little enterprise of out crime. Mass. Commonwealth anyone’s justifiable reli- left be would N.E.2d Massachusetts everyone must real- privacy ... if decide ance on called constitution). Azzi, WL lance under federal No. See also State 28, 1983) (Ohio (upholding Ct.App. Sept. surveil- provision] ize that he will be free from warrantless person not to be recorded. If a long thoughts paper, electronic intrusion so as some- commits his secret suspect does not police one is no license for seize the improper wrong think- him of conduct or paper; if a communicates his secret ing[.] another, thoughts verbally that is [sic] no license for the to record the question The relevant is not whether crimi- words.... nals must bear the risk of warrantless would surveillance, person’s mean little if it to a but it should im- were limited whether solitary society. thoughts, posed on all members of and so fostered secre- plurality White underestimated this risk tiveness. perceived

because it no distinction of con- stitutional moment between the common Judicially supervised use of electronic sur- us, gossip and the informant. “wired” For by veillance law enforcement officers is not however, a in disparity distinction lies by forbidden is too [our constitution]. [I]t security between that sense of which felt is easy hence, forget and, too often for- — among feelings trusted friends and the gotten the issue here is whether to —that hostility among competitors encountered interpose procedure a warrant search be- security or combatants. The sense agencies tween engaging law enforcement liberty thought, speech, essential to in eavesdropping electronic public and the association. generally.... Interposition of a warrant requirement designed to shield urges The Commonwealth consideration of “wrongdoers,” but to a secure measure of developed principle in White that a personal security and a sense defendant who has no constitutional throughout society. our to exclude the informer’s unaided testimo- sought police No warrant was in [the ny ... privilege has [no constitutional] days elapsed Three between case]. against a more accurate version of the agreement [the be wired informant’s] question. dispute events in We do not taping and the of the first conversation premise arguably more accurate evi- evidence; days admitted in nine more gathered police dence if electroni- elapsed before second conversation was cally partici- record than if conversations Thus, taped. perceive exigency we pant solely memory to his trusts when prevented procurement of a war- testifying. agree And we that a criminal rant. Each conversation whose recorded rely defendant cannot on the exclusion of contents was admitted at trial had unfold- testimony personal, of an informer’s home, person’s ed in a in circumstances unmediated account of what was said. The remotely suggestive any speak- not even probative wrongfully value of evidence ob- beyond er’s intent to be the circle of heard not, however, justify tained does a search known listeners. As to each of those con- or seizure in defeat of constitutional safe- versations, we hold that its warrantless guards. by surreptitious electronic search trans- unreasonably that it We conclude intru- mission and its electronic seizure sur- impose sive to the risk of electronic sur- reptitious recording were violation of every speaking veillance on act of aloud to [our constitution]. that, person. We another cannot conclude (internal Blood, quota- 507 N.E.2d at 1034-38 warrant, absence the consent of omitted).27 tions and citations par-takers less than all the of a conversa- (b) type tion participant’s one-party is sufficient to waive States without Title III rights pursuant to search and seizure consent The electronic [the statutes. surveillance Smith, However, State Wis.2d 242 N.W.2d lance statutes. in 1989 the Wisconsin Supreme the Wisconsin held Legislature permit one- amended statutes one-party consent surveillance evidence ob- party felony drug consent surveillance for investi- suspect's tained in a home was inadmissible un- gations. language der the of that state’s electronic surveil- jurisdictions permit police differ from Title to send an infor-

statutes in 13 did police suspect’s recording mant home with a they do not authorize into III in that unilaterally engage one-party device without warrant. The court consent sur- statutes, prevented one-party Fleetwood consent sur- to these veillance. Pursuant statutory grounds, veillance in the home on to obtain authorization police required grounds. on Attorney but not constitutional officer or Gener- equip an informant al in order Glass, P.2d The court State v. device, purpose for the electronic surveillance (Alaska 1978), opinion reh’g, 596 P.2d 10 recording communications with sus- (Alaska 1979),29 asked to decide whether of an informant pect.28 The issue was violated when an Alaska Constitution suspect, in the home of communications informant, warrant, without a wore an elec authorization, been ad- without lawful has suspect’s tronic surveillance device in a home jurisdictions: of these Alas- dressed seven that allowed the to record the commu Nevada, ka, Indiana, Kansas, Oregon, Penn- issue, resolving nication. the court in Washington. sylvania, and rejected holding the United Glass White, States Court and found State, Snellgrove v. the cases that the state’s and sei constitutional search (Ind.1991), Wright, and v. N.E.2d 337 State right privacy provisions prohibit zure and to 355, (1968), 444 P.2d 676 Wash.2d ed electronic surveillance warrantless upon were called to decide whether courts suspect. of a Court rea home The Glass the Fourth Amendment to federal consti soned as follows: prohibited warrantless electronic tution sur suspect’s construing provisions home similar of Alaska’s veillance in infor Constitution, we, course, give careful mant. Both courts held Fourth holdings was not violated such con consideration to the of the United Court, Snellgrove Supreme although Wright duct. The courts States we are White, however, not bound them. does upon to decide the issue on were not called by any present agreement not a clear cut grounds. The courts in state constitutional majority justices, and our Roudybush, 235 Kan. 686 P.2d decision State v. (1984), Bonds, v. 92 Nev. as to Alaska’s Constitution should there- and State (1976), solely by reasoning respec their fore be influenced 550 P.2d 409 construed supporting differing positions. prohibiting as More- tive surveillance statutes not over, Supreme recording the United States an informant from communications carefully protection has stated: suspect’s “[T]he in a without a warrant. The home person’s right right General Roudybush also were courts Bonds is, people to be let alone other like the not to decide the issue in the called very protection property of his and of his context of their state constitutions. In State life, largely left to the law of the individual Fleetwood, 331 Or. P.3d States.” Oregon Supreme Court held that electronic surveillance statutes of that state 12.37.010, (2006); 9.73.010, (2006); seq. seq. § §

28. See Alaska Stat. et et Wash. Rev.Code 53a-187, a, seq. §§ (2003). & seq. Conn. Gen.Stat. et 54-41 et et (2001); seq. Comp. 5/14-3(g- § Ill. Stat. ch. Supreme Court of Connecticut has held 5) (Supp.2006) (permits Attorney General to au one-party that warrantless consent consent); one-party § thorize Ind. Stat. 35-33.5- prohibited, though statutorily not even it is not 1-5, (1998); 22-2614, seq. seq. § et Kan. Stat. et (2005) Grullon, 179.410, authorized. See State v. Conn. (1995); seq. § Nev.Rev.Stat. et (1989). (allows 562 A.2d 481 Court of emergency); one-party in an consent 570-A:l, (2003) seq. Washington permits one-party (permits § N.H.Rev.Stat. et warrantless con Attorney one-party recording only General to authorize con when sent the communication is sent); 2A:156A-1, (1985) seq. (per Clark, § N.J. Stat. et private. deemed See State Attorney one-party mits General authorize 916 P.2d 384 Wash.2d 133.721, consent); seq. § & Ore.Rev.Stat. et 165.535, (2005); seq. § et Pa. Consol. Stat. tit. opinion rehearing 29. The addressed the issue 18, 5701, seq. (permits Attorney § et Gen original prospective application of the consent); one-party eral R.I. Gen. L. to authorize opinion. 12-5.1-1, (2002); seq. § § el Tenn.Code 40-6- is, course, easy say permitted It that one en- constitution an informant to use an illegal gaged activity right in an has no electronic suspect’s surveillance device in a complain Pennsylva- if his conversations are broadcast home without warrant. Under If, however, statute, or recorded. law enforcement nia’s electronic surveillance it ex- as may lawfully participants time, one-party officials cause se- isted at that consent surveil- cretly private to record and transcribe con- lance was authorized. The court in Brion versations, nothing prevents monitoring of found that the required state constitution persons engaged illegal those activi- warrant be before issued an informant ty, displeasure, who have incurred have with an electronic surveillance could device espoused unpopular not conformed or have suspect. enter the home of a The court causes. reasoned as follows:

To determine whether one’s fall activities privacy, within we exam- just It seems must that conduct of those first, Appellant ine: whether engaged activity has exhibited in criminal be revealed. second, an expectation privacy[;] Legitimate interests of law enforcement expectation authorities, however, whether is one that soci- may generally met ety recognize prepared as reasonable. the same manner in other searches In the seizures. absence limited ... instant [T]he case involves conversa- exceptions, a search warrant should be taking place sanctity tions of one’s impartial magistrate, obtained else, If home. nowhere an individual must probable based on cause believe that ability private feel secure in his to hold a activity discovered, criminal will be before conversation within the four walls of his monitoring electronic of conversations right privacy home. For the to to mean may that, should be allowed. It be as anything, it guarantee privacy must to an contexts, other search and seizure the re- home_Upon individual his clos- own quirement aof warrant be obviated ing door of one’s home to the outside exigent under circumstances. We with- world, person may a legitimately expect hold on passing presented until issue highest degree privacy to our known specific Generally, however, with a ease. a society. required search warrant should be before permitting monitoring electronic of conver- ... constitutionally An individual has a sations. protected right secure to be in his home. We requirement believe that this will [Consequently,] ... we hold an indi- unreasonably impinge legitimate on law reasonably expect can vidual that his case, enforcement efforts.... Glass’ In privacy will not be violated his home appears that [the informant] believed she any through the use of electronic surveil- purchase could heroin at Glass’ home. If In so holding, lance. we need not find [the probable belief, there were for a cause pre- unconstitutional. We must statute] warrant could have been secured. Just Assembly sume that the General did not requirement protects against warrant constitution, intend to violate the and will seizures, search unreasonable it can so construe statute as to its sustain prevent improper privacy invasions of validity fairly possible. if such is With monitoring. electronic Alaska’s Constitu- respect occurring to oral communications tion be people mandates its free from home, interception pursuant within one’s invasions of of surrepti- means can [the statute] deemed constitu- monitoring tious of conversations. tional under Article Section if there

Glass, (internal at quotations 583 P.2d 876-81 prior probable has been determination of omitted). and citations neutral, authority. cause In Brion, light Assembly’s preference Commonwealth v. 539 Pa. General Pennsylvania expressed proba- 652 A.2d 287 Su- elsewhere in the Act that preme Court had to regarding decide whether ble other cause determinations provision search and seizure of that by judge state’s electronic surveillance be made Court, a search consistency ic device without war- Superior for we surveillance ap- procedures should be having believe such rant been issued. fulfilling probable this

plied in cause/war- C. Informant’s of an Electronic An Use requirement. rant Home of An- Surveillance Device in the sug- case, evidence In this there Virginia other under Laws West any committed act which gest that Brion reasonably to the conclusion lead would Now, Virgi- must decide West we whether expectation did not have that he statutory stat- electronic surveillance nia’s home. Because there privacy within utes and the constitutional search sei- probable cause no determination permit informant to provision zure judicial authority, the consensual a neutral suspect wearing home of a while enter the I, 8 and body Article Section wire violated obtaining ju- device without first surveillance recording of the transaction tape dicial authorization. sup- have home should been Brion’s pressed. Virginia’s electronic sur 1. West (internal quota- Brian, 288-89 652 A.2d at Virgi the West veillance statutes. omitted). tions and citations Virginia Legislature nia enacted the West analysis indi- The above 3. Summation. Surveillance Act Wiretapping Electronic appellate courts in at least cates that (hereinafter Act”), “the codified W. Va. of an addressed issue fifteen states have seq.34 et 62-1D-1, general § mat Code As suspect, entering the home of a informant ter, anyone makes it the Act unlawful wearing electron- informant was while the “[ijntentionally attempt intercept, inter judicially approved. ic surveillance device cept any intercept procure other or surveillance,30 permit how- Nine courts such wire, oral attempt intercept, or ever, only those courts have decided four of electronic communication.” W. Va.Code grounds.31 constitutional the issue state 62-1D-3(a)(1) (1987) (Repl.Vol.2005). § A surveillance,32 and prohibit such Six courts felony provision is a off violation of have done on state four of those courts so 62-lD-3(a)(3).36 § ense.35 See W. Va.Code Thus, ap- it would grounds.33 constitutional “[tjhat Further, provides the Act evidence half the courts other states pear that provisions of this obtained in violation of the the White rejected addressing issue have in pro not be article shall admissible grounds, and constitutional decision state (1987) § ceeding.” 62-1D-6 W. Va.Code entering from prohibit informant thus an Vol.2005). wearing (Repl suspect an electron- home of a while Fleetwood, Hume, 1987); (1987); (Fla. v. 331 v. 512 So.2d N.E.2d 1029 State Or. 30. See State 185 State, (Ind.1991); 511, (2000); Snellgrove N.E.2d v. 569 337 v. 16 P.3d 503 Commonwealth 834, Roudybush, 256, 100 Brion, (1994); v. 235 Kan. 686 P.2d State 652 v. 539 A.2d 287 State Pa. Collins, 8, (1984); People 438 475 v. Mich. Blow, 513, (1991); Vt. 602 A.2d 552 State v. 157 (1991) (decision did 684 not involve N.W.2d Smith, 711, (1976) 72 Wis.2d 242 N.W.2d 184 home, prior but overruled informant statute). (modified by prohibited in-home surveillance case that State, (Miss. informant); 489 So.2d 1382 Lee v. Glass, 1978); (Alaska 33. See State v. 583 P.2d 872 Bonds, 307, 1986); Nev. P.2d 409 State v. 92 550 Blood, v. 400 Mass. 507 Commonwealth Azzi, (1976); No. 1983 WL 6726 State v. Brion, (1987); v. 1029 N.E.2d Commonwealth 28, 1983); (Ohio Ct.App. Sept. Wright, 74 State v. Blow, (1994); A.2d State v. 539 Pa. 652 287 (1968); v. Wash.2d 444 P.2d 676 Almada A.2d 157 Vt. 552 State, (Wyo.1999). 994 P.2d 299 1987); Hume, (Fla. So.2d 31. See State v. patterned III. 34. Act is after Title The Collins, People 438 Mich. N.W.2d 684 (decision (1991) involve an informant in did not prohibitions 35. There are other under Act home, prior case that but it overruled not relevant this case. which are prohibited by an infor in-home surveillance State, (Miss.1986); mant); Lee v. 489 So.2d remedy provides civil State, The Act also for (Wyo.1999). Almada v. 994 P.2d 299 (1987) § See W. Va.Code 62-1D-12 violation. 1978); Glass, (Alaska P.2d 872 See State (Repl.Vol.2005). Blood, 400 Mass. Commonwealth v. used, used, in or are about to be connec- an electronic permits the use of Act offense, or investigating specifi- tion with commission device surveillance to, offenses,37 name authorized are leased listed when offenses cally enumerated of, commonly person. judge.38 Pursu- or used this designated circuit court by a Act, county prosecutor39 or a ant to the 62-lD-ll(c). § W. Va.Code police40 member of the state duly authorized provides one-party Act for a consent for a may application make an warrant exception requirement. This the warrant an electronic intercept communication with § 62-1D- exception is contained W. Va. judge permits a The Act surveillance device. 3(b)(2) as follows: only if the evidence to issue warrant person It under article for a is lawful applicant estab- argument presented wire, intercept a oral or electronic com- that: lishes party is a munication where (1) to believe that probable There is cause one of the the communication where committing, or more individuals are one parties given to the communication has committed, to commit or are about have interception prior consent to the unless the offenses enu- particular more of the one or intercepted pur- communication is for the article; of this 62-1D-8] merated [§ committing any pose of criminal or tortious (2) probable cause for belief There act in of the constitution or laws violation concerning such communications particular the United States or the constitution or be obtained offense or offenses will laws of this state.41 through interception; (Footnote added). now, has Until this Court (3) investigative procedures have Normal never been called to decide whether reasonably failed and been tried and have exception permits one-party consent Act’s unlikely if at- to succeed appear be an informant into a sus- to send be tempted again, or that to do so would pect’s home with an electronic surveillance n likely unreasonably dangerous and to re- device, judicial authorization. but without injury in death or or the destruction sult However, prior have two decisions we property; and one-party consent ex- interpreted the Act’s police to record ception permitting probable cause to believe that There is which, suspect and an place communications between or the the facilities suspect’s wire, occur in a where, commu- informant did not oral or electronic being intercepted home.42 nications are acting judge to someone under a circuit Act extends both

37. The crimes for which court acting under the out law and to someone not electronic surveillance are set color of authorize (1987) (Repl.Vol. one-party § D-8 consent statutes of in W. Va.Code 2005). 62-1 color of law. The language Act. track the used several states 13-3012(9) (Supp.2006); § See Ariz.Rev.Stat. (c) (2005); 5-60-120(a) § Cal.Penal & Ark.Code procedure designating for 38. The Act sets out the (1999); §§ § 18-9- Code 633.5 Colo.Rev.Stat. specific judges elec- court to authorize circuit 11, 2402(c)(4) (2006); Act, § Del.Code tit. 303 & 304 "[t]he the chief tronic surveillance. Under shall, (2003); 16-11-66(a) (2001); § supreme appeals Me.Rev. justice Ga.Code of the court basis, 15, 709(4) (2003); designate § five active circuit Md. Cts. Jud. Pro. annual Stat. tit. (2006); 10-402(c)(2) individually upon judges § hear and L. rule Mass. Gen. ch. court Code authorizing intercep- (2000); 99(B)(4) applications § for orders N.Y.Crim. Pro. Stat. wire, 15A-287(a) 700.05(3) (1996); communications.” § oral or electronic § tion N.C. Gen.Stat. (1987) (Repl.Vol.2005). 2933.52(B)(4) (2006); § (2005); § W. Va.Code 62-1D-7 Ohio Rev.Code (2004); § Pen. Tex. Codified L. 23A-35A-20 S.D. 16.02(c)(3) (Supp.2006); § Va.Code § Code W. 62-1D-8. 39. See Va.Code (2004); 19.2-62(B)(2) § Wyo. § Stat. 7-3- 702(b)(1)(2005). 1(a)(1) (1987) § D-l W. Va.Code 62-1 40. See (Repl.Vol.2005). Holland, 179 W.Va. 42.In Marano (1988), called to ad 1 17 we were one-party excep- S.E.2d be noted that the It should provision III. one-party of Title consent dress from Title III in that the tion of the Act differs Syllabus point 15 of Maraño We stated phrase law” that is not use the "color of Act does so, "[ojne interception telephone spouse’s com- language in the in Title III. Even found Dillon, In State v. 191 W.Va. 447 dence. The ultimately defendant was convict (1994), police, ed, S.E.2d 583 without a war- appealed. and he One of the issues rant, placed an electronic surveillance device appeal by raised in the the defendant was drug- on an informant order to record telephone wiretap illegal be transactions between informant and the permit cause the Act did not give child to police were defendant. The able to record recording. consent to electronic This Court several conversations between the informant rejected so, argument. doing we they and the defendant while were in a ear applicable provid found that the definitions surrep- and on the street. As a result of the ed under the Act did not make a distinction recordings, titious the defendant was indicted between an adult child. Williams prosecuted drug trafficking. During for simply stated “[t]he statute contains no vi trial, appear. the informant did not Con- minors, exception carious consent and we sequently, prosecutor tape introduced the refuse to find that one exists without a stat recordings into evidence. The defendant was utory Williams, basis to do so.” 215 W.Va. appealed. convicted. He One of the issues 599 S.E.2d at 630.'44 tape raised the defendant was that that, We believe under the decisions in recordings should not have been allowed into Williams, Dillon and one-party consent testimony by because there evidence was no exception permits police of the Act indicating the informant the informant con- equip an informant with an electronic surveil- wearing sented to the electronic surveillance and, warrant, lance device without a send the rejected argument device. We and held informant into the suspect. home Con- that, sequently, case, per- instant the Act purposes Proof of consent for of electronic mitted the to send an informant into intercept Virginia set forth West Code Mr. Mullens’ home while the informant was §§ 62-1D-3 and 62-1D-6 need not be wearing an electronic surveillance device. proven solely by consenting individu- testimony, proven through al’s but can be One-party consent to electronic evidence, testimony other such as the suspect surveillance in the home of a given, to whom the consent was provision the search and seizure consenting actually that the individual con- Virginia West Although Constitution. we intercept. sented to the electronic have complained concluded that the conduct 1, Dillon, Syl. pt. 191 W.Va. at inof the instant case was lawful under the S.E.2d at 592. Act, we must now decide whether the search Williams, In State v. 215 W.Va. provision and seizure of our state constitution fifteen-year-old S.E.2d 624 sexual permits one-party consent to electronic sur gave assault police permission victim suspect veillance the home of a place wiretap telephone on her to record a 3, § Article 6 of the Virgi warrant:45 West conversation had defendant, she with the provides: nia Constitution her attacker.'43 The defendant was subse quently prosecuted rights arrested and for sexual of the citizens to be secure in trial, During houses, assault. taped persons, papers effects, tele their phone conversation against was introduced into evi- unreasonable searches and sei-

mumcations the other is a parent violation of the versalions the other recorded while Omnibus Crime Control and Safe parent's Streets Act of the children are in the other house.” 1968, 2510, 4, seq., § by Syl. pt. 18 U.S.C. Dep’t et its W. Va. Health & Human Res. of L., 663, terms them Wright renders inadmissible.’' 179 W.Va. ex rel. v. David 192 W.Va. 453 156, (1994). 366 S.E.2d S.E.2d 646 previously 43. The defendant had abducted the 45.We wish to be clear that our concern here is girl, but returned her her home. with the use of an electronic surveillance by device an informant while in the home aof ”[aj custody suspect. In a child case we held that impact Our decision has no on the parent right authority police has no on behalf place bodywire of his or her of the on an Va.Code, give children to consent under W. 62- informant to record communications with a sus- 3(c)(2)(1987) pect ... suspect's to have the children's con- outside the home. ID—

89 Natick, 622, 13, zures, shall not be violated. No warrant Peters v. 165 W.Va. 628 n. cause, (1980). 760, except upon probable shall issue 270 n. S.E.2d 13 affirmation, supported particu- oath or The order of the circuit court and the searched, larly describing place the to be parties any prior briefs of the failed to cite to thing or the to be seized. addressing decision of this Court the issue of purpose We have indicated permits whether our state constitution one- 3, § impose article 6 “is to standard party consent to electronic surveillance in the upon ‘reasonableness’ the exercise of discre a suspect home of without a warrant. How- officials, by government including tion law ever, previously this Court has addressed officers, safeguard enforcement so as to issue. The issue arose in a case that was security against of individuals approximately year, decided one before the arbitrary [by governmental invasions offi Act was created. 686, 692, Legg, State v. 207 W.Va. cials].” 300, In Thompson, State v. 176 W.Va. (internal 110, 536 S.E.2d quota police S.E.2d 268 had information omitted). tions and citations This Court has selling that the drugs. defendant was aAs provisions also held that “[t]he Consti police, result of information this Virginia may, tution of the of West in State warrant, placed a radio transmitter on the instances, certain require higher standards informant and sent him to the defendant’s protection than afforded the Federal home, home. While in the defendant’s 2, Syl. pt. Pauley Kelly, Constitution.” purchased drugs, informant and the transac (1979). 162 W.Va. 255 S.E.2d 859 tion was po monitored and recorded Therefore, fact that mere the Fourth subsequently prose lice. The defendant was interpreted allowing Amendment has been as guilty drug trafficking. cuted and found one-party consent electronic surveillance in appeal One of the issues raised on was that it suspect the home of a does not mean that tape was error to recording introduce the required III, this interpret Court is article drug alleged transaction. The defendant § 6 in the same manner. “This Court has tape recording that the was made in violation repeatedly Virgi determined that the West III, police § of article because did not protective nia Constitution be more obtain a warrant to informant have the enter rights individual than its federal counter his home with an part.” electronic surveillance de Carper Virginia State ex rel. v. West so, Bd., disagreed. doing vice. This Court In Parole n. 203 W.Va. (1998). words, very briefly this its prior S.E.2d 871 n. Court looked at other may “interpret guar one-party we decision that sur state constitutional involved consent upon in a antees manner different than the veillance Based United outside the home.46’ tersely interpreted States that decision has com the Court reasoned parable guarantees.” federal constitutional follows: (1984). opinion

46. The case in discussed relied W.Va. 322 S.E.2d 42 State, Thompson opinion Farruggia police was Blackburn v. involved a informant who re- W.Va. 290 S.E.2d 22 The decision corded with the defendant while in conversations lot, tape recording car, Blackburn involved a tele parking and at the office of the a. phone conversation occurred between the attorney. defendant’s Because the defendant acting coopera defendant an informant recordings, indicted time was at the police. tion with the Blackburn held that the recordings Court found that the violated the de- so, recording doing opinion was lawful. single syllabus fendant’s In the to counsel. following Syllabus point set out 4: opinion point of the this Court held the follow- ing: Warrantless electronic of a defen- The Sixth Amendment to the Constitution of par- dant’s conversation with the consent who, prohibits ticipant United States the use trial of to the conversation unknown to defendant, incriminating acting statements made defendant concert with the accomplice police prohibition against to an after indictment and without does not violate the accomplice when the unreasonable assistance of counsel searches and seizures contained cooperating in article with the and was section 6 of our state constitution. 96, 96, equipped secretly 170 W. Va. to transmit iccord the 170 W.Va. 290 S.E.2d 22. and discussed, opinion briefly also but distin conversation. Hedrick, 58, 58, guished, Farruggia the case of 174 174 W.Va. 174 W.Va. 322 S.E.2d 90 question ... that activi defen- “There is no also believes

The Court sanctity of place within the that the surveillance was ties which take contention dant’s exacting con- most [article a warrant and uninvited the home merit made without III, Lacy, 196 illegal protection.” § and seizure is search State 6] stituted (1996). 719, 111, 104, 726 W.Va. 468 S.E.2d without merit.... III, § long held that article 6 This Court has rights of from unrea “protects] the citizens into consider- Talcing [prior decision in their hous sonable searches and seizures ation], that a elec- it is clear warrantless 555, McNeal, 550, W.Va. State v. 162 es.” recording of a defendant’s conversa- tronic (1979). reason, 484, For this 251 S.E.2d 488 before his Sixth tion made addressing jurisprudence of this Court attached, and made right to counsel has III, § a firm line at the 6 has “drawn article participant a (cid:127)with the consent of exigent cir to the house. Absent entrance who, defen- unknown to the conversation cumstances, that threshold not reason dant, police, acting in concert with the is ably State v. be crossed without warrant.” against prohibition violate the does not 46, 741, 755, 55 Craft, W.Va. 272 S.E.2d 165 guar- and seizures unreasonable searches (1980) (internal quotations and citation omit Fourth Amendment to the anteed ted). is, exceptions, “any with limited That and article Constitution United States dwelling ... mere person[’s] search of III, Virginia the West Consti- section 6 of any article found suspicion and the seizure tution. thereof, ... a search without result pres- Clearly tape in the case involved warrant, and in an unlawful search seizure ently the Court was made with the before 6, Article 3 of the Consti violation of Section knowledge of [the informant]. and consent 1, Virginia.” Syl. pt. part, in tution of West had neither At the time the defendant Smith, 385, 193 S.E.2d State v. 156 W.Va. nor indicted.... We believe been arrested Slat, W.Va. also State v. 98 550 See tape into evidence. that the was admissible (1925) 448, 449, (“Any 127 S.E. person’s without a valid search of house 305-06, at 342 S.E.2d Thompson, 176 W.Va. search, an unreasonable search warrant at 273-72. 6, art. Constitution [of the] under section complete lack of are troubled We Virginia[.]”). underscored the of West We analysis Thompson in on the issue expectations privacy significance of the privacy in the home. In expectations of B., W.J. 166 W.Va. the home State v. III, § that article reaching the conclusion (1981): 276 S.E.2d privacy to invade allows vitality to the ancient is still basic home, [T]here through wearing an informant citizen’s that a man’s home is his English rule judi without an electronic surveillance device castle, right expect and he has the some authorization, Thompson opinion did cial security privacy its confines. within discussing pri provide one sentence recognition rule from a societal III, This arises § vacy in home that article 6 is physical the home shelters assumed, designed protect. Thompson society[,] refuge for the basic unit of discussion, that no difference existed family. criminal law there is a person’s expectations reasonable between fact, recognition marked of this as shown home, privacy in versus the his/her to arrest a the difference person expects outside the home. See warrant[,] as between criminal without a Peacher, 540, 567-68, 167 W.Va. State v. (“A public,place. his and a home expecta person’s S.E.2d privacy in automobile is less than tion of his B., at S.E.2d W.J. 166 W.Va. home[.]”). that which he would have history protecting the by Thompson long assumption guts article This Court’s This III, sanctity from warrantless of the home § and makes it a hollow constitutional against allow- searches seizures counsels protection from unreasonable searches Syllabus point ing Thompson to stand. seizures the home.

91 1023, applied and can be so construed avoid a Corp., 157 W.Va. Dailey v. Bechtel Constitution, (1974), give held: conflict and it the this Court 207 S.E.2d 169 with law, such construction will be force appellate court should not overrule An 3, adopted by Syl. pt. the courts.” Slack v. recently rendered with- previous decision (1875). Jacob, 8 W.Va. 612 See State v. changing conditions or seri- out evidence of Siers, 34, 36, 504, 103 W.Va. 136 S.E. interpretation judicial error in suffi- ous (1927) (“[I]t is a rule of constitutional inter from the basic compel cient to deviation that, may decisis, pretation when two constructions policy of the doctrine stare statute, stability, placed upon a one of which ren certainty, promote which is ders it and the other unconsti uniformity in constitutional and the law. tutional, duty of the courts to so limit depart from stare decisis is Our decision comply to make it the statute as consti judicial error” in the upon a “serious based today requirements.”). ruling tutional Our Thompson opinion.47 That error was the one-party provision merely limits the consent bright complete obliteration of the line this being of the Act from used to send an infor historically drawn between Court has suspect mant into the home of a to record home, and seizures versus searches having therein without ob communications and seizures outside home. searches authorizing tained a search warrant such acknowledge the exis Thompson failed to that, III, conduct. Therefore we hold Article Consequently, we tence of this distinction. prohib Virginia § 6 of the West Constitution Virgi now hold that it a violation of West police sending an informant into its III, police § nia article 6 for the Constitution person under the the home of another aus sanctity per of a to invade pices one-party consent to electronic by employing an informant son’s home § provisions of W. Va.Code 62- surveillance surreptitiously use an electronic surveillance 3(b)(2)(1987) (Repl.Vol.2005) where the occurring in that device to record matters 1D — police prior have not obtained authorization duly person’s obtaining a home without first § pursuant to do to W. Va.Code 62-1D-11 so pursuant Va. authorized court order to W. (1987) (Repl.Vol.2005). (1987) (Repl.Vol.2005). § To Code 62-1D-11 Thompson, 176 W.Va. the extent that State v. case, Turning to the facts of this there is 300, differently, holds 342 S.E.2d 268 dispute. judi- to obtain failed it is overruled. cial authorization to send the informant into that, informant in addition to Mr. Mullens’ home while the We are mindful wearing an device. Thompson, wording of the state’s elec electronic surveillance Consequently, the trial court should have permits Act an informant tronic surveillance suppress granted Mr. motion to suspect with a record Mullens’ to enter the home recordings obtained ing judicial authorization. electronic surveillance device without Mr. However, rejection Thompson home the informant. Insofar as our de guilty, plea a conditional require invalidation of the Mullens entered cision does not right to remand he exercise his with- one-party provision consent of the Act. It is a jury guilty plea and let a decide his principle of draw the longstanding fundamental law Legislature an act fate.48 “[w]herever McCraine, 188, important prin peal[.]” v. 214 W.Va. State "Stare decisis rests 177, governed ciple people the law which n. n. 588 S.E.2d 'fixed, definite, known,’ words, and not retroactivity should be subject we do not extend full other frequent modification in the absence of Syl. pt. ruling in this case. See State to our Soulsby, compelling Bradshaw v. reasons.” (1996) Blake, S.E.2d 550 W.Va. 682, 690, W.Va. 558 S.E.2d (“The deciding the retroac criteria to be used in Sims, J., (Maynard, dissenting) (quoting Booth pro tivity rules of criminal of new constitutional 194 n. 193 W.Va. 14 (1995)). 350 n. 456 S.E.2d (a) by the purpose to be served cedure are: standards, (b) reliance new the extent of the standards, authorities on old law enforcement “[tjhe point application We will out that (c) justice on the administration of the effect today ... the retrial of our decision is limited to application of the new standards. of a retroactive litigation or on [Mr. Mullens] to cases Thus, a criminal is to decision in case during pendency ap appeal [direct] of this provocative, misleading that the use of such IV. wording and inaccurate was intended to CONCLUSION the true nature of the mask criminal enter- circuit conviction and The courts sentenc- prise present well-disguised herein not ing order is reversed. This case is remanded appeal by majority the to our understandable disposition for further consistent with this power fear of uncontrolled state in the face of opinion. rights necessary to the maintenance of a free society.1 By admission, Mr. Mullens’ own Reversed and Remanded. however, majority’s rendition is not what happened in this matter. BENJAMIN, Justice, dissenting: (Filed 2007) April Equally gratuitous resort, majority’s is the despite previous rulings this Court’s to the system justice Fundamental to our is the contrary, justify to our State Constitution to public’s integrity pre- confidence in the and their result. Our Constitution serves as a dictability of court decisions. When the strong independent repository and of author- prior rulings, Court breaks with its inserts ity protective rights Virginia of the of meanings and into West provi- words constitutional there, plainly engage principled and citizens. Rather than in a sions statutes not application easily-understood long-ac- independent and redefines of this Court’s au- and thority cepted principles justice, Constitution, to interpret this Court invites our State majority arbitrarily fair and deserves criticism. This such a overrules at least one, more, implication prior case. several decisions of this Court —decisions which were By departing application from a reasoned impeccably reasoned wdiich established a pure of the rule of judgment law favor of readily readily understood and administered policy, majority opinion all abandons Further, bright line rule. adopting its pretense principled use of established pronouncement new as a matter of constitu- jurisprudence applicable law to resolve the III, tional mandate under Article Section 6 of evidentiary present appeal. issue in this De- Constitution, majority pre- our State has spite the rhetorical that it invocation left “no Legislature making poli- vented the unread,” stone unturned and no footnote cy People decision on behalf on this majority opinion simply ignored, or avoided engaging judicial matter. Rather than to, overwhelming reference mountain of pervades majority chauvinism which legal reasoning authority that shatters opinion, I think it reasonable for us to ask: any acceptable legal semblance of an basis Is decision wise? Does our Constitution majority’s for the result. authorize us to announce this anomalous rule result-driven, policy-based nature of and, by decree, styling it a constitutional majority’s apparent actions is from the put beyond ordinary pro- the reach of the opinion’sinception. According majori- representative government cesses of without ty, requires this matter the Court to decide much plausible argument so as a that such a can, “whether the prior impar- pronouncement required? my is now I fear- authorization, judicial tial person solicit a colleagues misapprehend the depth shallow informant, serve as a confidential equip that jurisprudential they ice which an electronic with surveillance device boldly now so tread. and send into home citi- him/her police arbitrarily zen Ultimately, majority coherently decide investi- cannot gate.” Majority opinion, p. explain S.E.2d what true constitutional it added). (emphasis only I trying protect can majority assume here. The cannot (a) given prospective application only might just readily if: It 1. One consider the threat law; posed society by (b) depart principle free which established a new courts its retro- policy-driven from the rule law in favor of application operation; active would retard its pronouncements developed behind the closed (c) application produce its retroactive would doors of sunshine of rather chambers than results.”). inequitable legislative debate. nary primary whisper constitutional concerns on its head answer what actual pres- that are likewise harm this notion are inherent here decision causes to the and, fear, passive recordings for other forms constitutional I ulti- ent mately majority credibility. finds constitutional this Court’s view of majority infirmity. is unable to likewise the mountain of evidence which demonstrates explanation why provide plausible that Mullens chose to transform this compelled to State should be here seek a place house into a of unlawful business and simply record warrant to one mode of voluntarily that Mullens the invited State’s already recording being recorded what is place informant into this of business so as to another mode of a which war- engage drug in an illicit transaction' —an invi- majority is not rant needed. What the does permitted agent tation which the State’s full give protec- special do is auditory everything and visual access to unwarranted — —and selling engaged tions to an illicit individual within the no house with need whatsoever for is, drugs to a customer in reali- trusted who majority opinion a warrant —I the read and ty, agent State will later offer testimo- who must conclude that “we’re not Kansas ny prove against State’s case the anymore”, anywhere or else where the rule majority individual. The finds fault amount- personal policy pref- of law subordinates the to a of our ing violation State Constitution of judges.2 erences ability the State’s to collect informa- In mis-characterizing question before but in tion the means the State which provocative this Court terms —terms of passively records a criminal transaction. such arguably betray emotion which predestined fails, is no majority It wonder that the or is by devoting opin- result —and of its bulk unable, identify what was the “search” and matters, to seemingly ion irrelevant the ma- the “seizure” here. jority sadly important opportunity an misses fully analyze pro- for this Court to the dual I. tections of our Federal and State Constitu- ” place “There’s no like Other home and majority truly If the sought tions. leave Misconceptions Factual unturned, stone would have ad- also Majority Opinion dressed such as whether the confiden- issues majority’s Crucial analysis passive recording illegal to the is the tial informant’s activity actually claim that the house in which Mullens chose inside the Mullens’ residence (it not), sell illicit drugs was “home” and constitutes a search and does seizure presence legitimate privacy State’s in this house an has was unwel- whether Mullens Indeed, illegal come intrusion. critical interest an business conducted in- challenge misstatements, majori- protected by to such side his home is ty simply “clicks its heels” invokes the man- Fourth to the United States tra, home”, III, place pro- “there’s no like Constitution or Article Section 6 of the (he not), century to turn Virginia ceeds half of constitutional West Constitution does Court, jurisprudence evidentiary simply from this the United this whether matter (it is). virtually every Instead, majority States Court and much of devotes country opinion history other federal state court this its to a discussion of the case, required the Factsshow that a confidential whether a a confiden- warrant before informant indicated members of the U.S. 119 tial informant who is invited a defendant's into Drug and Violent Crimes Task Force illegal drugs may passively s/he purchase residence to purchase illegal drugs could home. Mullens’ through record the of hidden transaction the use Thereafter, the confidential informant went to equipment. audio video The answer to and/or the Mullens' residence while with audio wired question prior precedent under the of this recording equipment. and video confiden- The (precedent summarily Court which was dis- door, tial informant on the was invited knocked majority), missed under a half a over purchased grams marijuana. in and 3.23 century prece- Supreme Court of United States recording equipment captured audio and video majority overwhelming dent and under the buy, leading drug but conversation did jurisdictions country resounding in this is a capture drugs changing tape. hands on "NO!” Thus, question actually Court before the er, decision announced in order to reach the wiretapping statutes which federal electronic depart majority forced to opinion, the constitutionality in its bearing on the have no side-step this Court’s decisis and drug from stare recording of a transaction informant’s decision expressly overrule one precedent, plurality opin- summary dismissal and a implicitly overrule several directly point, on Supreme Court States one United ion of the wiretapping others, selectively our White, read case, 401 U.S. States United signif- in cases can have (1971), majori- statute. Decisions 28 L.Ed.2d S.Ct. of tens of thousands impact icant lives acknowledge and deem is ty itself forces credibility Virginians. Where respect to the of West this Court with controlling on system our court derives legitimacy of majority fails Amendment.3 Fourth public’s confidence directly from the from this of decisions mention the wealth opinions, legal integrity and soundness of our support Supreme Court which and the severely confidence will I fear that that majority be- While rationale. White by actions. string tested such acknowledges, albeit in a grudgingly more) (there the federal cite, of a few govern- the not involve This case does recognizing appeals decisions circuit court of technology or electronics to of ment’s use White, to viability it fails the continued on, in, eavesdrop conversations or listen Supreme Court has acknowledge that the participant. It agent not a which its was those any request to review lower denied technology to invade the involve does not and White. court decisions revisit not the security of the home. It does involve personal informa- of electronics to obtain opin- use also devotes much of its majority already It did not have. ability government tion the discussing an informant’s ion to recording a means of simply was another homes in other in defendant’s record events does This case likewise majority sidesteps drug transaction. doing, the states. In so technology by the the use majority that find not involve overwhelming of cases the of its government enhance the senses and relies instead no constitutional violation the use of technol- agent. It does not involve jurisdictions. As from five upon case law “exotic” or unusual. ogy which can be termed below, respect to four of those with discussed There no “planted”. was decisions, No devices were majority forced to either the five intrusion, compulsion. no (1) no force and acknowledge decisions have those n been simply recorded what the infor- by abrogated or electronics subsequently overruled (2) seeing hearing. This case amendment; and ignore that mant was constitutional image not sound or provisions, not does not involve state constitutional by informant. Constitution, or heard the im- otherwise seen Virginia found in the West (3) decision; subsequent ignore pacted the use of technolo- case does involve This undermining scope attributed decisions reliable recordation of gy to obtain the most by majority in this matter. decision prosecution. for use a criminal evidence transaction carried It does involve a business opinion does the Only the end of its toward the defendant characterizes out in a location Virginia law. Howev- majority discuss West Act, White, majority fails to majority Surveillance summarily dismissing Electronic upon acknowledge White for prior that Dillon relied neglects this Court's likewise to mention proposition the Fourth Amendment does upon of the White de and endorsement reliance 648, 657, recording See, Dillon, a prohibit warrantless electronic W.Va. v. cision. State State, (1994); with the consent of which is done conversation Blackburn 447 S.E.2d 96, 103-05, party that consent be demonstrated and S.E.2d 30-32 one by 170 W.Va. 501, 508, Andriotto, testimony person (1982); to whom consent of the W.Va. State Dillon, recording given. W.Va. at 447 S.E.2d (involving was 280 S.E.2d footnote, Relegating Blackburn to telephone wit at 592. conversation with of defendant's acknowledge holding majority its cooperating police). is forced While who was with ness recording a conversation majority, warrantless Blackburn are cited Dillon and working does holding in concert with incorporation White their of the III, Section but fails noting not violate Article acknowledged. that "one of the While upon holding is based necessary proof mention the Blackburn involved the issues" Dillon plurality.” approval Black- one-party "tacit of White consent under the consent to record burn, at 32. Wiretapping W.Va. at 290 S.E.2d Virginia exception to the West agent ty’s opinion majority pick government It is that the would a “home.” involves unworthy an case to make voluntarily into this “home” such which invited who was important such statement. ability everything a full to see and hear with stated, government here Simply inside. Rather than a reasoned consideration of technology to obtain information did not use jurisprudence interpreting our State constitutionally protected area from within differently Constitution from the Federal it was not invited. analysis Constitution or a reasoned III, specific language of Article Section the unlawful acts herein were Whether Constitution, Virginia majority the West eyes byor an elec- seen the informant’s seemingly relegates provision the state to a camera, no less incrimi- tronic the acts were simple pro mechanism convenience to admissibility nating of evidence re- majority improper. scribe feels is what dependent acts should not be lated such majority that the The result is now creates a the method of such evi- whether majority precedent of this whenever physical dence or electronic where was rights given to create for Court wishes present conceded that the State’s actor was group, may simply individual or the Court invitation, where the unlawful acts were Virginia invoke West Constitution with him, freely openly performed before plausible explanation out so much as a dispute that a where there is warrant why expansion required. such is then for the actor to be not needed Conceptually,- agree completely my I The position the to see such acts. same is justices Virginia that the fellow West Consti- by heard the infor- true for which was may differently tution be read than the Fed- ease, only question mant’s ears. In this Virginia eral Constitution. The West Consti- accuracy, regarding recordation be should simple redundancy. tution is not a This admissibility. majority reasons not How power impose higher Court has the stan- image and sound recorda- that one form of required by than dards those Federal inculpates prohibition tion constitutional if it Constitution so chooses. We should not legally unintelligi- and the other does is blindly follow standards a rea- lower when and State Con- ble. Under both Federal analysis applied Virginia soned of West law stitutions, the means of recordation herein do using compels standardized criteria of review themselves constitute a “search” and us to believe our Constitution stands “seizure” distinct from what the State’s actor federalism, however, judicial more. Such already permissibly recording through simply spring must not from desire senses the need for a warrant. As given Court for a result. We must also such, security concerns raised approach pru- with a such federalism Virginia Fourth Amendment and its West clothing given dent measure of restraint counterpart are not at issue. There pronouncement garb effec- constitutional violation in this case. constitutional tively pronouncement insulates such a from ordinary processes representative gov- II. legislative ernment review. majority Of the three cases cited

“Somewhere Over the Rainbow ” enjoy great support its claim that individuals Majority’s into The Skitter III, protection Article Section 6 er under Judicial Federalism Amendment, than under the Fourth State ex Bd., Carper Virginia Parole majority hinges The its dismissal of United rel. v. West (1998), Supreme precedent upon gen- 509 S.E.2d 864 Peters States W.Va. Narick, Virginia 270 S.E.2d 760

eral assertion that the West Consti- W.Va. (1980), Pauley Kelly, protective tution be more of individual 162 W.Va. (1979), actually none involved

rights than the Federal Constitution. What 255 S.E.2d Amazingly, disturbing majori- provisions.4 constitutional profoundly is so about the these thereof, Carper Virginia cited in footnote 6 State ex rel. v. West nor the cases Neither Bd., upon by majority, relied dealt 203 W.Va. 509 S.E.2d 864 which was Parole mention majority Supreme did not this Court’s construing Court decisions regarding Ar- prior departure direction construction of Fourth Amendment III, Eighty-five years ago, nearly century precedent ticle Section 6. of this Court held: and the this Court advice and counsel of a former Jus- Court, recognized tice of this a scholar relating of our provisions constitution throughout this State as the foremost author- search and to unreasonable seizure and ity Virginia procedure. on West criminal protecting one accused of a crime from being compelled against to a be a witness Although this Court in Adkins deemed himself, being substantially the same as provisions our search and seizure as “sub- corresponding provisions of the federal stantially” the same as the Fourth Amend- therefrom, constitution and taken should ment, argue I would that the main difference harmony given a construction in with between the two—the use of different con- provisions by the construction of federal (“or” “and”) junctions versus results Court of the United States. actually being Federal Constitution more re- upon governmental power strictive than the Andrews, Syl. Pt. State v. 91 W.Va. Virginia West Constitution. The Fourth also, 114 S.E. 257 See v. Du State provides: 578, 582, vernoy, 156 W.Va. 195 S.E.2d (1973) (“this traditionally Court has con people to be secure III, harmony strued Article 6 in Section houses, persons, effects, their papers, and Amendment.”). the Fourth As stated against unreasonable searches and sei- Cleckley, Justice in his treatise on Criminal zures, violated, shall not be and no War- Virginia, pre Procedure in West have “[w]e issue, cause, rants upon probable shall but viously acknowledged that the federal and affirmation, supported by par- Oath or Virginia West constitutions are similar and ticularly describing place to be despite slight phraseolo some differences in searched, persons things to be gy, provisions [regarding these searches and seized. interpreted consistently.” should be seizures] added). (Emphasis Conversely, III, Article Cleckley, 1 Franklin D. Handbook on West Section states: (1993 Virginia Criminal Procedure at 1-201 rights of the citizens to be secure in Cleckley Supp.2004). ap & Justice himself houses, persons, effects, papers their and plied principle Lacy, in State v. against unreasonable searches and sei- (1996), W.Va. 468 S.E.2d 719 wherein zures, shall not be violated. No Warrant argument the Court was faced with an except cause, upon probable shall issue alleged search and seizure violated both supported by affirmation, particu- oath or III, Article Section 6 and the Fourth Amend larly describing place searched, to be claims, analyzing ment. In the Court person thing or the or to be seized. heavily upon relied Federal Fourth Amend Thus, added). precedent. majority’s Thus, ment (Emphasis deci for a search and depart in sion this matter to from construc seizure to be constitutional under the Fourth III, harmony Amendment, tion of Article Section 6 with there must be a warrant identi- provi quire higher with protection our Constitution's search and seizure standards of than afford Instead, Carper sions. dealt with the constitu by comparable ed federal constitutional stan (W.Va. post provision tional ex facto law Const. Pauley, dards.” 162 W.Va. at 255 S.E.2d at III, 4),§ Art. and the cases in the footnote dis 863-4, Leverette, citing, Adkins v. 161 W.Va. process equal protection cuss due and issues. 19-20, Adkins, 239 S.E.2d Likewise, Narick, Peters v. 165 W.Va. jeopardy which involved constitutional double (1980), protection equal S.E.2d 760 involved is (W.Va. III, 5), § issues Const.Art. the Court stat Pauley Kelly, sues. 162 W.Va. S.E.2d may ed “[w]hile is true that a state not inter require involved our constitutional pret guarantee its constitutional which is identi thorough ments for a (W.Va. and efficient education guarantee cal ato federal constitutional below XII, 1), equal protection § Const.Art. level, nothing prevents the federal a state court (W.Va. III, 10), open § Const.Art. and courts equaling exceeding (W.Va. 17). Ill, or the federal stan discussing equal § Const.Art. Court, Adkins, 19-20, issues, protection dard.” Pauley, 161 W.Va. at 239 S.E.2d noted that added). may interpret (emphasis “we our own Constitution to re- at 499 place produces legitimate both to be and the which a fying searched tion basis for a Conversely, differing judgment rather person things or be seized. constitutional than to Constitution, reactive, confusing judg- our State the warrant incoherent and under place to approach positively issue to search a or seize ment. Such an neces- unlikely sary supply judges, lawyers, to person thing. governmental or While it is that the actors and place guidance State would seek a warrant to search a citizens neces- sary request to their corresponding to seize a understand constitutional com- Constitution, tiling, under our it mitments. may. Implicit in the constitutional warrant III. requirement search the existence of a and search seizure. Where there is neither a nor Why Search Couldn’t Seizure — by a governmental entity, a seizure constitu- Majority Just the Yellow “Follow ” requirements trig- tional warrant Long-Ac- Brick Iload and Our Own gered. cepted Law duty interpreting It is our when the su- The ultimate measure of the Fourth preme employ law of this State to standards Amendment and our State constitutional stable, predicta- criteria result which equivalent is reasonableness. reason- approach interpreting ble reasoned ableness of a search is determined assess- Here, State leap our Constitution. ing, hand, any, if degree, the one finding infraction, a constitutional without so which search intrudes individu- guide much as set of standards to security, hand, al’s and on the other analysis justify or a critical its degree pro- it is for the which needed actions, pronouncement a legal results in governmental a legitimate motion of interest. Any foray borders on which the nonsensical. unique being The Fourth Amendment by this Court into the use our State Con- Rights amendment within our Bill of fundamentally in a contrary stitution manner concept which involves the of reasonableness required by to that the United States Consti- and, thereby, balancing of interests. With begin tution must first with a commitment to challenges posed new current interpre- traditional notions constitutional technologies give pow- the State new tation and a framework standard criteria ers intrude and criminals abilities new considered, to be as: such evade, necessarily requires this Amendment similarity grounding by protection coverage 1. The courts the bedrock of solid analysis. provisions constitutional constitutional issue. comparison specific 2. A of language world, today’s I in accept State provisions at issue. The lack of may array technology muster an awesome of language distinctive should this dissuade to assist to hear what cannot be detected proceeding from in Court a distinctive with the naked ear and to see what cannot be manner. by eye. Sophisticated gadge- seen naked try brought by bear which can be precedent. Virginia 3. West parabolic microphones, State satel- includes precedent. 4. Federal cameras, planes high lite tech lenses legislative Constitutional histories overhead, circling laser bounced off beams and official commentaries. windows, variety wide and a of stand-alone Accepted judicial interpre- uniform or bugging technology The use of devices. such unique phrases. tations may insult indeed be ultimate type 7. Differences in the extent and security impli- may home and well one’s interests which the Federal and the West protections cate the of the Fourth Amend- Virginia provisions designed protect. are III, 6, of ment and Article Section the West case, by however, Virginia This is no means an list all-inclusive Constitution. Indeed, Rather, Court to begin- consider. it is a such were in devices use. there ning by to a framework standards lead the no “search” or “seizure” whatsoever was approach interpreta- technological to a reasoned form of innovation Hedrick, S.E.2d W.Va. were devices at issue The electronic

State. Any (1989),that recording devices. simple passive accomplished was “seizure” or “search” the Fourth protection under A claim of presence was informant whose State’s challenge the right Amendment and by Mullens. “Unless invited upon a depends not of a legality search seizure, it is or a activity a search is either the invaded in person’s property Amendment [or the Fourth regulated but personal property, article of place or III, 6], it does and therefore Section Article legitimate person has upon whether the Cleckley, supra to be reasonable.” not have place privacy in the invaded expectation of re- simply no warrant There at 1-203. position If is such thing. or super- No amount this case. quirement reasonably privacy, a expect cannot that he legal analysis alters this ficial constitutional unreasonable may find that an court reality. has not taken search Fourth Amendment or place. a search seizure To understand whether look how place, we must first has taken at 291 at 383 S.E.2d Wagner, 181 W.Va. constitu been defined for terms have those omitted). (internal A citations footnote and According to the purposes. tional hand, the other property, “seizure” “ Court, occurs Amendment ‘search’ a Fourth meaningful inter there is some “occurs when society privacy that expectation of

when inter possessory with an individual’s ference infring prepared to consider reasonable Jacobsen, U.S. property seized. ests” Jacobsen, 466 U.S. States v. ed.” United also, Cleckley, 113, 104 at 1656.5 See S.Ct. 1652, 1656, 109, 113, L.Ed.2d 85 104 S.Ct. supra at I-203-04. that: been observed It has also Cleckley, succinctly de- Justice Former of a man’s an examination A search is “search” the distinction between scribed or of buildings premises, or other house by stating: “seizure” discovery a view that person, search, may occur without a seizure property, or illicit or stolen of contraband a seizure. As occur without search guilt to be used or some evidence concurring explained in his Stevens Justice a criminal action for some prosecution of Brown, 460 U.S. in Texas v. opinion he is offense with which crime or 747-48, 75 L.Ed.2d 103 S.Ct. important to observe charged.... It (1983): must be tied that the of search definition cases Amendment Although our Fourth Thus, privacy. where expectation indiscriminately to refer sometimes expectation of intrusion on the there is no seizures, impor- there searches and no search. privacy, there is the two.... between tant differences (internal quotation Cleckley, supra at I-203 two different protects Amendment .The omitted) original). (emphasis in and citations interest the citizen' —the interests of Scalia, “a Fourth Justice As stated property and the retaining possession-of not oceur-even search does maintaining privacy. personal interest protected location explicitly when the former, a search threatens the A seizure individual ‘the concerned-unless house is latter. priva subjective expectation of a manifested Cleckley, Before constitution search,’ supra at I-205. object challenged cy in the of the in the instant triggered protections al can expecta ‘society willing recognize [is] ” matter, made that States, must be a determination Kyllo v. tion United as reasonable.’ pri expectation of 2038, 2042-3, 33, Mullens had reasonable 27, 150 121 S.Ct. 533 U.S. drugs. conducting illegal sale of (2001) vacy in original), (emphasis L.Ed.2d 94 of overwhelming mountain Ciraolo, 207, light In of 476 U.S. quoting, v. California issue, simply can (1986). I authority to this 1809, relevant 211, 210 90 L.E.2d 106 S.Ct. expec- had a reasonable that Mullens Wagner v. not find Likewise, recognized in this Jacobsen, 466 U.S. "meaning- freedom of movement.” al’s person involves the 5. A "seizure" 1656, 114, 5, brief, interference, at n. 5. n. 104 S.Ct at with an individu- ful however

99 by consistently person triggering protection has “held that has no privacy tation of III, legitimate expectation privacy of informa- Article Section 6. Fourth Amendment or voluntarily par- tion he turns over to third IV. Maryland, v. 442 U.S. ties.” Smith 743-4, 2577, 2582, 61 L.Ed.2d 99 S.Ct. spoken Pay No At- “The Great Oz has — (citations (1979) omitted). Similarly, the Su- the Man Behind the Cur- tention to ” preme Court has noted that the Fourth Law tain and His Absence of protect wrongdoer’s “a Amendment does world, today’s right to be left alone misplaced person belief that a to whom he truly a valuable in one’s home is —one voluntarily wrongdoing will not confides by myself and worthy protection of earnest States, reveal it.” 385 U.S. United Hoffa my judges. of the broad fellow view 293, 302, 408, 413, 87 S.Ct. 17 L.Ed.2d 374 security liberty and notions of individual (1966). freedom, potent our which underlie sense States, 389 U.S. In Katz United in overreaching governmental constraints on “ L.Ed.2d Su S.Ct. appropriate. ‘The Fourth trusions are preme Court noted “the Fourth Amendment States Constitu Amendment of United places. person protects people, not What III, tion, and Aticle Section 6 of West exposes public, knowingly to the even in his protect an Virginia Constitution individual’s office, subject own home or is not a of Fourth Syl. expectation privacy.’ pt. reasonable Katz, Amendment Protection.” 389 U.S. at Peacher, 540, 280 S.E.2d State v. 167 W.Va. omitted) (em (citations 351, 88 S.Ct. at 511 (1981).” Syl. Wagner. scope Pt. The added). Relying upon principle, phasis of what constitutes an individual’s reasonable previously recognized that this Court has expectation privacy developed has over constitutionally protected areas which are majority’s opinion time. Until the in this by geographic can “not be resolved matter, historically this Court has looked to analysis” property upon but must turn and embraced the decisions of the United expectation privacy. State v. reasonable respect States Court with 739, 742, Weigand, 169 W.Va. 289 S.E.2d addressing Fourth Amendment when also, Schofield, See State v. constitutionality alleged of an and sei search 99, 105, W.Va. 331 S.E.2d below, prior to the instant zure. As shown (citing proposition that “Fourth Katz for decision, consistently relied this Court has protects people, places” determining upon precedent when federal discussing legitimate expectation pri while constitutionally protected what constitutes vacy under Fourth Amendment Aticle expectation privacy. reasonable 6); Peacher, 563-4, III, at Section 167 W.Va. majority hinges its brief constitutional (noting that in order to 280 S.E.2d at 575-6 analysis on the location of the defendant protection receive constitutional illegal activity the time his was recorded —his expectation priva “must have a reasonable home. It has been noted that “the home is action” cy that been invaded official has special protection as the center of entitled and that the “fact that some warrantless people. Security of private lives of our not amount to a actions do in a guarded the home must be the law of a defendant’s reason substantial invasion privacy world is diminished en- where upon expectation able is basis sophisticated com- hanced surveillance and exceptions to the warrant which some established, systems. munication As is well built.”). Accordingly, requirement have been however, protection,..., Fourth Amendment emphasis Mullens’ home majority’s right.” personal in essence a Minnesota v. drug illegal sale mis the location of Carter, 469, 478, 83, 99, 119 S.Ct. 525 U.S. analysis placed. proper whether J., (Kennedy, concur- 142 L.Ed.2d 373 legitimate or reasonable ex Mullens had a expectation ring). personal right, As illegal privacy in the transaction. pectation Amendment, by privacy provided the Fourth can by scope privacy that may extinguished person’s own ac- The Amendment and a Supreme expect under the Fourth The United States Court tions. person’s ability to waive the began same tial testify informant could regarding the crystallize under federal law in the Stewart, mid-twen same. writing Justice for the ma- century. tieth the United States jority, noted: held, Supreme Lewis v. United argument Partin’s failure to States, 424, 17 385 U.S. 87 S.Ct. L.Ed.2d disclose his role as a informer the Fourth Amendment is vitiated the petitioner consent government, not violated when the without a gave repeated to Partin’s entries into the warrant, agent sends an undercover into a suite, listening petition- defendant’s home to purchase make a er’s statements Partin illegal conducted an Therein, illegal narcotics.6 Supreme ‘search’ for verbal evidence. Court stated: During neither of petitioner’s his visits to argument Where the misap- fails is in its see, agent hear, home did the or take prehension of the fundamental nature and anything contemplated, that was not and in scope of Fourth protection. Amendment intended, by petitioner fact necessary aas What the Fourth protects part illegal of his business. Were we to security upon man relies when he deceptions hold agent in this places himself or property his within constitutionally prohibited, case we would constitutionally protected area, be it his come near to a rule that the use of under- office, home or his his hotel room or his agents any cover virtually manner is protected automobile. There he is per unconstitutional .... se The fact that governmental unwarranted intrusion. And agent petitioner’s undercover entered puts when he something in filing his cabi- home compel does not a different conclu- net, drawer, in his desk pocket, or in his he question, sion. Without the home is ac- has the to know it will be secure from range corded the full of Fourth Amend- an unreasonable search or an unreasonable protections. ment See Amos v. United seizure. States, 255 U.S. 41 S.Ct. 65 L.Ed. (1921); States, Harris v. United 145, 151, 1098, 1102, U.S. n. 67 S.Ct. ease, present however, In the it is evident when, here, L.Ed. 1399 But that no legitimately protected interest home is converted into commercial cen- the Fourth Amendment is involved. It is ter to which pur- outsiders are invited for obvious that petitioner relying was not poses of transacting business, unlawful security on the of his hotel suite when he that business is greater entitled sanc- made the incriminating statements to Par- tity than if it store, were earned on in a tin presence. or in Partin’s Partin did not car, garage, a or on the govern- street. A enter the suite force or stealth. He agent, ment in the same manner as a was not a surreptitious eavesdropper. private person, may accept an invitation to Partin by invitation, was in the suite do business and prem- enter every conversation which he heard was very ises for purposes contemplated by either directed to him knowingly earned occupant. presence. on in petitioner, in a

Lewis, 210-11, U.S. 87 S.Ct. at word, relying was not security on the L.Ed.2d at year, 316. That Hoffa, same room; the hotel relying he was upon his Supreme Court found that incriminating misplaced confidence that Partin would not statements made to a confidential informant wrongdoing. reveal his of a defendant’s hotel room likewise not protected by were the Fourth guarantee against

Amendment’s warrantless Neither this Court nor member of it Thus, searches and seizures.7 expressed confiden- has ever the view that Surprisingly, majority opinion does not 7. The Court likewise found the defen- rights mention Lewis. dant's under the Fifth and Sixth Amend- ments were not violated.

101 protects 'wrong- Subsequently, Fourth Supreme ap- Amendment the misplaced person peared government’s ability belief that a to doer’s restrict the voluntarily wrongdo- whom he confides conduct warrantless electronic surveillance Indeed, ing Katz, reveal it. the Court Supreme will not Katz. In the Court found the unanimously rejected very of listening contention use an recording electronic and years ago Lopez less than four v. United telephone device attached the outside States, 1381, 427, 373 U.S. 83 S.Ct. commonly booth used the defendant to L.Ed.2d 462. place illegal bets violated his Fourth Amend-

ment protected against to be warrant- less Significant searches and seizures. to the dissenting opinion In of the words the holding in Katz that the was defendant had Lopez, being “The risk overheard steps privacy taken to insure the his con- eavesdropper betrayed by or an informer by closing telephone versation the door booth identity or deceived as to the one with shielding his communication from the probably whom one deals is inherent in the Id., 352, public.8 at at 389 U.S. 88 S.Ct. 511- society. conditions of human It is the ldnd concurrence, In his oft Katz cited Justice necessarily of risk we assume whenever we explained: eloquently Harlan Id., 465, speak.” 373 U.S. at 83 S.Ct. 1381. states, As opinion Fourth Court’s “the States, See p. also Lewis United ante places.” protects people, Amendment 206, 87 S.Ct. 424. question, however, protection is what Hoffa, 300-03, at U.S. 87 S.Ct. 413-14 it people. Generally, affords to those as (internal omitted). footnotes here, question requires to that answer decision, My reference Lopez Hoffa, “place.” understanding to a referenced in emerged prior has Supreme rule that Court found that the warrant- require- decisions is that there is a less twofold conversations between an ment, first that agent IRS have exhibited defendant were (subjective) expectation actual made in the defendant’s office and, second, expectation knowledge be one defendant’s did not violate the States, society prepared recognize Lopez Fourth Amendment. v. United is, “reasonable.” Thus a 373 U.S. 83 S.Ct. 10 L.Ed.2d man’s home place purposes, expects most recordings where he evidenced the defen- privacy, activities, objects, but state- attempting agent. dant IRS bribe the exposes “plain ments that he Noting that view” the defendant had consented to “protected” agent’s outsiders are not presence and that because his office keep intention them agent to himself has been properly testify regarding could conversations, exhibited. Supreme Court found ad- recordings provided mission of the the most Id., (emphasis U.S. at S.Ct. at 516 actually

reliable evidence of what had oc- added). Interestingly, majority mentions Lopez, curred. 373 U.S. at 83 S.Ct. at Katz to the extent is cited in law also, States, On See Lee v. United attacking arguing review article White and U.S. 72 S.Ct. 96 L.Ed. 1270 that Katz announced “doctrinal shift.” (testimony government agent regarding White, conversation overheard electronic trans- Court held agent mission device between undercover Fourth Amendment was not violated when a wearing microphone secretly and defendant was ad- confidential con- informant recorded defendant, including missible and did not the Fourth violate versations with the occurring defendant consented to where conversation the defendant’s voluntarily White, agent’s presence wilting undercover home. for the own Justice him). spoke plurality, explained impact Katz in that, Id., easily 8. Also noted was based on the facts known lance could have been obtained. listening at the time the device U.S. at at 513. S.Ct. installed, authorizing a warrant such surveil- 102 identity Supreme prior precedent his and

light agent Court’s who conceals purchase a of narcotics from the makes as follows: States, accused, Lewis 385 U.S. United States, Katz v. neither wire- Until United 424, (1966), 206, 312 87 S.Ct. 17 L.Ed.2d eavesdropping vio- tapping nor electronic agent, or to same unbeknown when a defendant’s Fourth Amendment lated defendant, equip- carries electronic rights “unless there has been an official ment to record the defendant’s words person, his and seizure of or such search gathered so is later offered the evidence tangible or his mate- papers of his seizure States, Lopez v. United 373 evidence. effects, physical or an actual invasion rial 427, 1381, U.S. 83 S.Ct. 10 L.Ed.2d 462 curtilage’ purpose of his house ‘or (1963). making a seizure.” Olmstead v. United 466, States, 438, 564, 48 72 277 U.S. S.Ct. White, 748-9, U.S. at 91 S.Ct. at 1124-5.9 401 (1928); L.Ed. 944 Goldman v. United Caceres, also, See United States v. 440 U.S. States, 135-136, 993, 129, 62 316 U.S. S.Ct. 1465, 741, S.Ct. L.Ed.2d 733 59 (1942). 86 L.Ed. (embracing Lopez tape White to find that by

recordings agent made IRS without de- knowledge bribery fendant’s evidenced which to Appeals The Court of understood Katz attempt did not violate defendant’s Fourth against inadmissible render White rights). light prece- of this testimony concerning agents’ conversations dent, applied a Court reason- can- that Jackson broadcast them. We expectations analysis possibility to the able no agree. Katz involved not revelation electronically recording an informant interac- by party to conversa- the Government tions the defendant and stated: with nor tions with defendant did the gives protection If the law no to the any way indicate in that defendant has accomplice wrongdoer whose or trusted is constitutionally justifiable protected police agent, neither it becomes should expectation that a with he is whom protect agent him when that has same conversing will then or later not reveal recorded or transmitted the conversations police. conversation to the later which are offered evidence to States, v. United 385 U.S. Hoffa prove Lopez the State’s ease. See v. Unit S.Ct. 17 L.Ed.2d 374 States, ed 373 U.S. 83 S.Ct. Katz, that was left undisturbed held L.Ed.2d 462 strongly however a defendant trust expectations apparent colleague, Inescapably, contemplating illegal his one ac- protected by respect are not must realize and risk his com- tivities panions may police. reporting it out be If Fourth Amendment when turns sufficiently colleague government agent that the is he doubts their trustworthi- the association n will ness, very probably regularly communicating authori- end with the circumstances, In these or But if he no ties. “no interest never materialize. has doubts, allays them, legitimately protected Fourth or or risks what doubt involved,” has, Amendment is for that amend- he the risk is his. terms of what be, protection wrong- ment affords course he or not “a his will what will will misplaced say, unpersuaded that a person doer’s belief do or we are that he voluntarily wrong- distinguish probable confides in- whom he would between probable doing it.” on the one hand and will reveal v. United formers Hoffa States, at on the 87 S.Ct. No warrant informers with transmitters other. required possibility probability in such “search and seize” Given circumstances, colleagues cooperating is it of his nor when the Govern- one police, speculation ment it is assert sends defendant’s home secret Lopez majority White in his relied and Lewis in 9. As noted Justice concur Katz Katz rence, 351-2, Lopez left reaching were undisturbed its Id. at at decision. S.Ct. Hoffa Katz, 389 U.S. at decision Katz. point I S.Ct. at 517. would also out that credibility [confidential informant’s] utterances would the defendant’s being by corroborating beset substantially or his sense of secu- evidence different Caceres, possible susceptible impeachment.” thought if rity less he also 1470, quoting at suspected colleague is wired for 440 U.S. S.Ct. that the persuasive Lopez. At least there is no sound. respect that the difference evidence subsequent Neither nor Katz nor White electronically equipped and

between that decisions indicate Katz was the retreat agent is unequipped substantial prior jurisprudence Fourth Amendment enough require to discrete constitutional majority. contrary, suggested To the recognition, particularly under the Fourth may Katz best be seen as a succinct articula- Amendment which is ruled fluid con- of the Fourth tion Amendment standards cepts of ‘reasonableness.’ developed years over the the Fourth —that ready to erect consti- Nor we too should protects legitimate a defendant’s probative tutional barriers to relevant expectation privacy things in those he does is accurate and reli- evidence which also willingly persons. if reveal third For many recording An electronic able. will voluntary there is a per- revelation to third produce times a more reliable rendition of sons, legitimate a defendant does not have a said than what defendant has will expectation per- or reasonable that the third memory police agent. of a It unaided son will not reveal he or heard what has seen that in existence also be with the Summarizing post-Aaiz to authorities. deci- likely it is less that the informant will sions, Court Smith stated: mind, change less chance that threat or his Katz, Consistently with this Court uni- injury suppress unfavorable will evidence formly has that application held of the and less chance that cross-examination will depends Fourth Amendment on whether testimony. confound the person invoicing protection can its White, 752-3, “reasonable,” “justifiable,” at claim a 401 U.S. 91 S.Ct. at 1126-7 or a private “legitimate expectation .10 information privacy” Once is revealed has another, revealing that infor been ac- invaded tion_This inquiry, mation that his confidant as Mr. Har- “assumes risk Justice concurrence, aptly that information to the authori lan noted in his Katz will reveal original normally questions. ... Once frustration of the ties[.] embraces two discrete occurs, individual, by expectation privacy the Fourth The first is whether the his conduct, (subjec- prohibit governmental Amendment does not has “exhibited an actual tive) expectation privacy,’’-whether, in now-nonprivate use of the information.” Ja 117, cobsen, majority, at 104 S.Ct. at 1658. words of the Katz the indi- 466 U.S. Similarly, pre- “constitutional vidual has that “he seeks to there is no shown rely possible [something] private.” in the as The second [confidential flaws serve subjec- memory, challenge question is the individual’s or to whether informant’s] Katz, 364, J., (Black, judg- at at 518 10. Justice Black concurred the White 389 U.S. 88 S.Ct ment, dissenting). Recognizing language but for the reasons set forth in his Katz that the dissent, Justice Black stated: dissent. his Katz requires the Fourth Amendment a "search" or a item, agree If I dropping tangible could with the Court eaves- Black noted "seizure" Justice by electronic means carried on by eavesdropping, "[a] conversation overheard (equivalent wiretapping) constitutes by plain snooping wiretapping, whether is not ‘seizure,’ join happy 'search' or I would be and, tangible normally accepted under the mean opinion. the Court's words, ings of the can neither be searched nor Id. 389 U.S. at 88 S.Ct. at 519. seized.” (1) objection My basic is twofold: I do not if the He went on to articulate his belief that will believe that the words of the Amendment require Framers intended to of the Constitution meaning given by today's bear the sion, them deci- eavesdropping, warrant for which is what wire (2) I do believe that it is the essence, tapping they is in would have included proper role of this to rewrite the Amend- language to that effect the Fourth Amendment. bring harmony ‘to into ment order 365-7, Id. 389 U.S. at 88 S.Ct. at 519. many the times' and thus reach a result that people believe to be desirable. States, 132, 149, expectation of is “one 267 U.S. tive 45 S.Ct. society prepared recognize as ‘reason- L.Ed. 543 ’’-whether, able,’ words Katz Where, here, Government uses expectation, individual’s majority, general public use, not in device “justifiable” objectively, under viewed explore details of the home that would the circumstances. previously have been unknowable without intrusion, physical the surveillance is a Smith, 99 S.Ct. at 2580. 442 U.S. See presumptively “search” and is unreason- Staten, also, v. United U.S. Bond able without warrant. L.Ed.2d 120 S.Ct. Id., U.S. at S.Ct. at 2046. (recognizing that the Fourth Amendment re dissent, Stevens, joined by Justice Chief Jus- an quires that an individual exhibit actual Rehnquist, tice Justice O’Connor and Justice society privacy and that expectation of Kennedy, relied the well-established recognize expectation prepared to such as reasonable). principle that there is no Fourth Amendment protection person knowingly for that which a specifically Supreme Court has ad exposes public to the to find a constitutional scope the Fourth Amendment dressed the violation had occurred because the ther- in searches of the home twice relation to imaging equipment simply recording mal was decision, Kyllo, history. recent a 2001 the (heat) escaping that which was from the that the Supreme Court found warrantless Id., 42-3, house. 533 U.S. at at S.Ct. imaging to detect heat use of thermal sources (Stevens, J., dissenting). 2047-8 Notwith- violated the Fourth Amend within a home standing legitimacy the of the dissenters’ Therein, Supreme recog ment. the Court majority reasoning, opinion Kyllo the in' does Amendment oc nized that a Fourth search a prior constitute retreat from Fourth government only “the violates a curs where analysis. Kyllo Amendment did not involve society subjective expectation privacy who, matter, a defendant as the instant recognizes reasonable” even where the as willingly party a invited third into his house person’s location of the “search” is home. thereby extinguishing any privacy interest Kyllo, at 121 S.Ct. at 2042-3. U.S. exposed that which was to the invitee. Scalia, majority, writing for the rea Justice year, Supreme Last the con was soned: fronted with the issue of whether the have said that the Fourth Amendment We requires Fourth Amendment warrant at the draws “a firm line entrance to the occupant search home where one consents U.S., house,” Payton, 445 100 S.Ct. objection physi to the search over the think, line, 1371. That we must be not cally present co-occupant. reaching its bright-which requires firm but also decision, Supreme the Court found that “in specification of those methods of sur- clear balancing competing gov the individual require a it veillance that warrant. While by ernment interests entailed the bar to certainly possible to conclude searches, cooperative unreasonable oc videotape imaging thermal of the oc- cupant’s nothing gov invitation adds to the “significant” curred this case no ernment’s side to counter the force of an compromise privacy of the homeowner’s objecting security individual’s claim to occurred, view, long has we must take the against government’s into intrusion meaning original from the of the Fourth place.” dwelling Georgia Randolph, v. Amendment forward. 103, 114-15, 1515, 1523, U.S. 126 S.Ct. (2006). Thus, “The Fourth Amendment is to be con- L.Ed.2d 208 light police justifiably held that the strued what was deemed Court cannot rely upon occupant unreasonable search and seizure consent of one over objection adopted, and in a manner of another to conduct a when was war- public dwelling. which will conserve interests as rantless search of shared Ran 118-19, rights dolph, 547 U.S. at S.Ct. at well as the interests of indi- dissenting joined by opinion vidual In his citizens.” Carroll United Scalia, plurality Justice Chief Justice Roberts relied opinion in held that White cases, White, upon prior in Katz apply waiver such decision did not to sur co-occupant find the was veillance in consent suf- which obtained permit ficient to search access to warrantless be- the conversation of the defendant by joint occupant cause “the party risk assumed consent another comparable the risk plurality assumed one conversation. The noted that Court, private previous who reveals information anoth- decisions Katz, er-if he were left shares information —or the undisturbed had held another, grant house—-with can that other there violation defen Id., access to the in each rights instance.” dant’s Fourth Amendment or neces sity 547 U.S. at S.Ct. at What obtain a search warrant where the Randolph ability clear makes is that the before whom the made defendant consent to a Fourth Amendment search or incriminating performed statements was, waive a protected interest criminal acts unknown to the defen dant, Fourth belongs government agent defen- who later testi trial, against dant. fied pri- Where defendant waives his defendant at Hoffa (or U.S., vacy interest, the Fourth Amendment 385 U.S. 87 S.Ct. 6) III, (1966); U.S., implicated. Article Section is not L.Ed.2d 374 v. Lewis 385 However, 206, attempts 424, party where third U.S. 87 S.Ct. 17 L.Ed.2d 312 (1966); extinguish government agent, the defendant’s or interest where un independent defendant, by of consent or waiver known to the carried electronic equipment the defendant over the defendant’s ob- record the defendant’s con jection, greater scrutiny applied. against is versation for use him at trial. Lo pez U.S., 427, 1381, 373 U.S. 83 10 S.Ct. adopted This Court embraced and the rea L.Ed.2d 462 Katz, soning Lewis, in Lopez, set forth Hoffa The plurality White noted that the ratio- decision, inWhite 1982 in the Blackburn Hoffa, Lopez nale in Lewis had been relegated decision to a footnote the that an justifiable individual has no majority. Though faced with a warrantless protected constitutionally expectation of recording telephone of a conversation with privacy in incriminating statements he con- informant, the consent of the Court person fides to another under the belief question framed the as before it “whether the other will not or later then prohibits our state surreptitious constitution reveal the of the contents conversation monitoring warrantless con defendant’s police. the versation law in enforcement officers co 103-4, operation a consenting with informant.” 170 W.Va. at 290 S.E.2d at 30. After Blackburn, 105, Id., noting decision, W.Va. at approval 170 290 S.E.2d at of the its White 105, 32, broadening present question This W.Va. 170 at 290 S.E.2d at this suggests scope ed the is Blackburn not as Court held electronic record “[w]arrantless majority suggests ing narrow as the herein. defendant’s with the conversation majority who, attempts to limit participant Blackburn tele consent of a unknown phone 188, defendant, Majority, p. in conversations. n. 46. the acting concert in imply, though prohibition facts Blackburn do against does not violate the un state, specifically that the defendant therein reasonable searches and seizures contained 3, in have his home he been when received in article 6 our constitu section state 4, telephone Syl. call which tion.” Pt. deci informant Blackburn. The White Blackburn, by police. was then 170 in recorded sion also embraced this Andriotto, W.Va. at In analyzing recording 290 S.E.2d at 29. which also involved issue, McGraw, wilting telephone Justice an in conversation initiated Andriotto, Court looked relevant federal to the defendant. decisions formant (1981).11 and stated: at W.Va. 280 S.E.2d at 136 Blackburn, opinion telephone 11. As in time he in Andriotto does received call from the not disclose the location of the defendant at the informant. standard, finding not relevant tion and the reasonableness Jus- implicitly White

While explained: III, Cleckley Lacy tice analysis Article Section under (or question acknowl majority does address There but activities sanctity of prior upon place within the reliance White take edge) this Court’s III, exacting Fourth Blackburn, home the most involving Article merit a decision protection. Payton Instead, New majority abruptly Section York, 573, 586, S.Ct. U.S. Thompson a “com based overrules the Unit L.Ed.2d analysis”. Majority, p. 189. lack of plete Supreme Court “It is a ed States stated: However, reading Thompson reveals a fair principle of Fourth Amendment ‘basic reasoning set forth in incorporated Law’ inside a that searches seizures basis of decision be its Blackburn as presumptively home a warrant are without Brotherton, cause, Justice the words Conversely, the search of unreasonable.” situation, Thompson, “falls defendant’s generally a home of a crime for evidence Black principle [announced] within pursu if it not unreasonable is conducted 305-6, at Thompson, ”. W.Va. burn by prob supported to a ant search warrant Arguably, Thompson if 273-4. S.E.2d course, able Of under Fourth cause. analysis, the ma incorporates the Blackburn Amendment, searches conducted outside have Blackburn jority should also overruled approv process, prior consistency in West in order achieve al, may if the search and be constitutional issue.12 Virginia law on this justified seizure can be under one reaching its conclusion that infor exceptions well-delineated or where both drug illegal mant’s transac exigent probable circumstances and cause rights our Mullens’ under Con tion violated States, 389 exist. See Katz v. United U.S. stitution, majority failed to conduct the the 347, 507, 514, 576, 357, L.Ed.2d 88 S.Ct. 19 analysis directed our “reasonableness” (1967); Buzzard, 585 State v. 194 W.Va. Syllabus 1 (1995). Point of State v. precedent. 544, 549, 50, S.E.2d 55 See 461 W.Va. 615, (1970), 177 562 Angel, Moore, 154 S.E.2d 2, Syl. pts. also 1 & v. 165 State “[t]he Court held that State and Federal 837, (1980), this W.Va. 272 S.E.2d 804 over only prohibit unreasonable Constitutions part grounds ruled in on other State v. (1991). and Julius, 422, there are numer searches and seizures 1 185 W.Va. 408 S.E.2d and in which search seizure ous situations equally It is clear the Fourth Amend needed, ..., things that warrant is not are applies ment to unreasonable senses, ..., as well obvious as Indeed, the touch searches and seizures. that have searches and seizures made been promise stone of the Fourth Amendment’s 1, Syl. part, Angel. Pt. in “reasonableness,” consented to.” generally, is which Smith, also, 663, 671, W.Va. See State v. 158 always, though into a war translates (1975), 759, 212 S.E.2d 764 overruled on oth requirement. rant School Vernonia Dist. Mohn, grounds Acton, 646, 651-55, ex White v. er State rel. v. U.S. 515 115 47J 211, (1981), (noting 2390-91, 564, S.E.2d 2386, 168 W.Va. 283 914 132 S.Ct. L.Ed.2d 573- “ (1995). against ‘depends inhibition is no constitutional “[t]here 75 What is reasonable surrounding search. Both the federal and all of warrantless the circumstances protect only against constitutions an nature of state search or seizure ” search.”). Looking to federal unreasonable search or seizure itself.’ Skinner Assoc., exceptions Railway guidance addressing for in Labor Executives’ 489 law III, 1402, 1414, 109 requirement the warrant of Article Sec- U.S. S.Ct. question viability equip an 12. I would the continued an informant with electronic also and, warrant, light majority’s of the device without a send of AndrioUoin decision in surveillance specifically upon suspect”, matter relied into the home this as Andriotto informant Additionally, recognized viability suspect. majority White. as the continued these decisions Dillon, consistency, majority have that under 191 W.Va. For should also State Williams, if, fact, (1994), they decisions author- S.E.2d 583 State v. overruled these majority what now unconstitution- W.Va. S.E.2d 624 "the one ize deems party exception permits al. consent the Act (1989). (Citation any privacy omit guished may L.Ed.2d interest he have ted). required to “balance the occurring Courts had the activities in his home quality nature and of the on the inviting intrusion confidential informant in and ex- individual’s Fourth Amendment interests posing those activities the confidential in- against importance governmen Angel, supra. By formant’s senses. See alleged justify tal intru publically exposing interests that which would other- Place, reasonably sion.” States v. 462 U.S. private United wise be deemed 696, 703, 2637, 2642, informant, 103 S.Ct. 77 L.Ed.2d gave confidential up Mullens (1983). case, requires In each a protection have been afforded balancing particular III, of the need for the under the Fourth Amendment or Article against Katz, personal search the invasion of Aldridge, Hoffa, Section 6. Lopez, See White, rights Lewis, Jacobsen, that the search entails. See Bell v. long Caceres. It has Wolfish, 520, 559, 441 U.S. 99 S.Ct. been held it is not reasonable to assume 1884, 60 L.Ed.2d 447 matters revealed a confidant will not later be disclosed to officials. Ultimately, question par- of whether a See, Katz, e.g., Hoffa, Thus, Blackburn. ticular search or seizure is reasonable legitimate, Mullens not have a does reason- purposes of the Fourth Amendment is not justifiable able or expectation privacy question of fact. Unlike determination conducting illegal drug business in his ordinary “reasonableness” tort cases subjectively if a home. Even reasonable ex- contexts, other balancing some this found, pectation could be I simply process presents question of law. expectation society do not believe it is an 111-2, Lacy, 196 W.Va. 468 S.E.2d at 726- prepared accept objectively reason- (footnotes omitted). determining Therefore, able. Mullens did not have a reasonable, whether a search is privacy expectation protected by either the explained has that to assert a constitutional III, Fourth Amendment or Article Section 6. violation one “must demonstrate a ‘reason Similarly, constitutionally I find rele expectation privacy1 subject able vant distinction the fact based that the expectation That seizure. is to be meas electronically confidential informant recorded subjectively objective ured both illegal drug transaction. The recordation standard of reasonableness.” Marano v. simply providing the most accurate version Holland, 156, 163, 117, 179 W.Va. 366 S.E.2d events, presenting of the best evidence and (1988), citing 124 Katz. This Court has also alleviating possibility of intimi witness held, in expectation relation to the reasonable memory simply dation or A defendant loss. III, 6, privacy protected of Article Section rely does not have a constitutional person “a expectation has no reasonable memory upon lapse a in an informant’s or to privacy knowingly exposes what he impeach credibility by prohib an informant’s 3, public.” Syl. Aldridge, Pt. State 172 v. iting corroborating introduction of evidence. (1983). 218, 221, W.Va. 304 S.E.2d 671 Caceres, Lopez. explained by As See Upon conducting constitutionally re- Appeals analyz Third Circuit Court of after quired person’s examination of a reasonable ing precedent: relevant expectation privacy, becomes clear short, adopted principle the Court [i]n surreptitious a confidential informant’s re- that, person presence if a consents to cording illegal drug taking of an transaction meeting person at a of another who is place in a defendant’s house not violate does occurred, willing to reveal what the Fourth III, either the Fourth Amendment Article permits First, by conducting illegal drug Section 6. proof obtain and use the best available house, activity in his Mullens lowered the what the latter could have testified expectation privacy ordinarily may about. by transforming be afforded to that location (3rd Lee, 194, place it from a F.3d home to of business and States v. 359 200 United denied, 955, inviting Cir.2004), outsiders in to conduct cert. 543 U.S. 125 business. Lewis, supra. 408, I See He thereafter extin- S.Ct. 160 L.Ed.2d 316 have 108 persuasive argument privacy things that he

not heard a credible or tation Lee, at support the exclusion of a verifiable re- allowed to see.” 359 F.3d [the Cl] “Although may may 201-02. video surveillance cording of an event when the informant greater privacy intrusion on than testify represented as to what is involve otherwise surveillance, the difference is not precedent audio recording. While both our nearly great as as the difference between Supreme Court and that of the United States testimony about a and audio conversation recordings, involved audio the addition recordings of conversations.” Id. at 202. recording alter video does not the constitu- priva- did not retain a Because Brathwaite analysis. Several federal courts of tional cy captured by interest in the areas appeals have addressed the use of video re- by an video surveillance conducted invited cording with an informant’s consent have visitor, that no Fourth Amend- we hold same to be constitutional. found the Davis, violation occurred. 326 ment See Brathwaite, 458 F.3d United States at F.3d (5th Cir.2006), the Fifth Circuit Court of Brathwaite, F.3d at 380-1. “constitutionally Appeals found no relevant opinion, The Second Circuit’s Davis Unit difference between audio and video surveil- Cir.2003), (2nd Davis, Brathwaite, 326 F.3d ed States lance.” 458 F.3d at 380.13 At denied, 908, rt. U.S. S.Ct. issue Brathwaite was Fourth Amend- ce 157 L.Ed.2d 196 referenced in challenge ment confidential informant’s Brathwaite, recording involved video use of a camera hidden in her warrantless illegal drug deal in the home purse counterfeiting defendant’s to video the defendant’s made virtue of a camera hidden in a living quarters. activities conducted in his jacket. at confidential informant’s 326 F.3d The Fifth Circuit found forfeited Brathwaite Discussing argued distinction be any privacy interests he have had recordings, tween video and audio the Second home when he invited the informant in. The Circuit stated: Fifth Circuit reasoned: firmly It that audio established record- Once Brathwaite invited the Cl into his ings, obtained without a warrant home, he “forfeited his interest in through hidden devices exposed those activities that were to [the guest, invited do not violate the Fourth Davis, United States v. 326 F.3d CI].” permit- Amendment. The rationales for (2d Cir.2003), denied, cert. 540 U.S. ting recordings, audio artic- warrantless (2003); 124 S.Ct. 157 L.Ed.2d 196 Lopez, apply ulated White and Lee, see also United States v. 359 F.3d equal force video surveillance (3d Cir.2004), denied, cert. issue in case. We therefore extend U.S. 125 S.Ct. 160 L.Ed.2d 316 Lopez the rule White and to video re- (2004) (“The principle underlying gov cordings capture images visible to a erning Supreme if Court cases is consensual visitor and hold that Davis’s presence defendant consents to right Fourth Amendment to be free from person testify meeting could who about a unreasonable searches and seizure was not occurs, willing to reveal what violated. relinquishes any legitimate defendant ex (internal omitted). pectation privacy respect any with to Id. at 362-3 citations cover.”). testimony ... thing reaching holding that could its the Fourth Amend- videotape only depicted evidence here ment was not violated the confidential Cl, taping was to what viewable whose informant’s warrantless video of activ- home,, presence ity the Second Circuit Brathwaite consented. See Davis’ .in Davis, exception 326 F.3d at 366. as relied the well-established to “[J]ust [Brath- any gave up expectation privacy general rule that searches waite] warrantless things per things in the that he allowed to se unreasonable for those [the Cl] hear, gave up any expec- exception provides That also activities. that [Brathwaite] Second, Third, Sixth, Brathwaite, ings Eighth, 13. In Ninth footnote the Fifth Circuit in the finding Appeals. noted that this was with find- and Eleventh Circuit Courts of consistent required First, that distinguish warrant is not to obtain which we cannot this case on knowingly person exposes public, ground “a that meetings the recorded oc- in significant in curred even his own home or office.” Id. at hotel suite. What is quoting type is not the explained: Katz. The Second Circuit of room in sur- veillance occurred but Lee’s in action ad- Once Davis into his [the informant] invited mitting [the to informant] the room. Al- residence, privacy forfeited his Davis inter- though expectation Lee had an of privacy exposed est those activities that to were long hotel suite so as was he alone that, hold [the informant]. We therefore there, when Lee allowed [the to informant] as with the recordings audio Davis and enter, any expectation privacy vis-a-vis Lopez, evidence, videotape which mere- [the vanished. that informant] We note ly showed scenes viewable infor- [the many of the conversations also oc- Hoffa mant], did not violate Davis’s Fourth suite, in a curred hotel but the Court nev- to be free unrea- ertheless held that case did not involve to sonable searches and seizures. Similar any legitimate Fourth Amendment inter- recording the audio in Lopez, infor- [the est. 385 U.S. at 87 S.Ct. anything did seize mant] from Davis L.Ed.2d Rather, knowledge. without his infor- [the Second, we cannot draw constitutional inside mant] was 35 Rose Avenue with distinction between consensual audio and Davis’s consent and the hidden camera principle underly- video surveillance. The merely memorialized what [the informant] ing governing Court cases is guest. was able to as an see invited Also that if a pres- defendant consents to the Lopez, recording cap- similar to the video testify ence of a who could about a only tured statements and actions that meeting willing and is what reveal oc- against Davis “knew full well could used curs, relinquishes any legiti- the defendant him if wished.” Be- [the informant] he expectation privacy respect mate cause the capture hidden camera did not anything testimony could cover. any priva- areas in which Davis retained Thus, just up expectation gave as Lee interest, cy Fourth Amendment viola- privacy things in the that he allowed tion occurred. hear, gave up [the Lee informant] also Id. 88 S.Ct. 507. any expectation privacy things that he allowed informant] see. [the Lee, an informant a hotel rented suite Although video surveillance involve permitted for the use of the defendant greater intrusion on than audio FBI, warrant, to install audio surveillance, nearly the difference is not as recording living video equipment great testimony as the difference between room area of the suite prior the defen- recordings about a conversation and audio Lee, dant’s arrival. 359 F.3d at 199. FBI of conversations. agents hallway monitored turned the equipment when the informant was Id. reject- at 201-2. The Third Circuit also present in the suite with the defendant. Id. argument ed an was Alito, writing Now-Justice for the Third Cir- required, pursuant wiretap- to the federal rejected Court Appeals, argument cuit statute, 2518(3)(c), § ping 18 U.S.C. to dem- there constitutional distinction techniques investigative onstrate less justify between informant’s consent than intrusive video surveillance inade- were opposed

warrantless audio quate noting appli- that the statute was not recording, explaining: video cable to “electronic surveillance conducted party with the consent of a to communi- the present remain convinced that the

[W]e Id. at cation.” governed case is the well-established decision, principle person legitimate years prior that has no Four the Lee the expectation privacy Appeals in Ninth of of conversations Circuit Court came to a who to the consents record- similar conclusion. In United States Ner ber, (9th ing Cir.2000), of the 222 F.3d conversations. the Ninth (T—t-H o a video camera in the the situa- warrant to install Appeals addressed of

Circuit Court shipment the after de- warehouse to obseive were recorded while defendants tion where However, livery. instead F.2d at 716. room the hotel both when in informants’ the in the as installing of one camera warehouse the infor- present after were informants warrant, they installed a analyzing matter authorized the In the left. mants had due to technical legiti- second was removed it, utilized the Ninth Circuit before the the in and a third outside privacy outlined difficulties warehouse. test expectation mate Bond, suppressed The court all video in Id. district Maryland recognized Smith v. violating as a sanction for i.e, protects evidence obtained Fourth Amendment that scope issued.14 The Ninth privacy— the of the warrant expectations of legitimate doing, it started its subjectively Circuit In so maintains reversed. defendant those a society willing expectations which are also analysis by pointing out the district at 599. reasonable. F.2d accept as balancing at in interests court erred analysis, Circuit Ninth Utilizing this properly The district court deter- stake. found: very in- mined that video surveillance finding not in court did err trusive, The district the Chen defendants and that subjective expecta- had a protection that defendants are under entitled videotaped the hotel room. tion not to be The district court Fourth Amendment. door, drawing closing the addition correctly pointed also out a business blinds, exercising over dominion protection is entitled to less from video left at 10:00 the room after informants than an individual’s home. surveillance a.m„ ingested court, however, cocaine and defendants The erred distiict way they clearly in a weapons expectation brandished holding this lessened they thought done had merely would not have privacy is offset because was might see them. outsiders crime” and there “mercantile threat of violence or harm immediate of defen- objective reasonableness persons property. expectation presents a clos- privacy dants’ Despite gov- question.... pause er Drug very repre- serious and crimes gives use of video surveillance ernment’s greatest society. threats sent of the one us, the district court that agree with we Drug conspiracies well-planned, are often expectation had no reasonable defendants may be and video and audio surveillance they be free from hidden video would conspirators necessary often because the informants while were surveillance carefully activities identi- conceal their the room. and other tech- using ties code words Therefore, niques. balancing the inter- Id. While the Ninth Circuit noted at 603-4. ests, a drug fact that this was crime hotel informants’ that defendants were weigh suppression. does in favor room, upon objective rea- focus was of whether defendants could sonableness (internal omitted). citations Like Id. expect presence to be recorded Circuit, government’s I the Ninth believe the informants. illegal drug need for accurate recordation prosecution of the addressing Amend- activities to bolster Although not Fourth justifies claims, same the use of video as well as Ninth Circuit addressed the ment criminal in in- audio recordations of transactions. and video surveillance need for audio need, lack of coupled v. This with defendant’s vestigating drug crimes United States (9th Cir.1992). Chen, Chen, expectation inviting when F.2d 714 into his agents confidential informant home to con- Customs discovered United States transaction, illegal drag sufficient transport duct shipment of heroin while was in justify audio They in this instance to warrantless obtained a rented warehouse. agreed suppres- camera the Unit- die installation of this Assistant had Attorney camera in- its sion the video obtained from the ed ordered removal and noti- States exceeding the the warehouse stalled outside scope its fied the district court of installation. Indeed, learning warrant.

HI Blood, per- argument, upon of the transaction and video based that the war- monitoring drug rantless formed the informant’s consent. transaction at apartment an informant’s with the infor- V. mant’s consent violated the defendant’s rights. Explaining subsequent Blood and feeling any- “I’ve a we’re not in Kansas ” decisions, the Supreme Massachusetts Judi- Majority’s Misplaced more The cial Court stated: Upon Reliance Other States interprets The defendant the Blood deci majority spends nearly The one-third of its bringing protective sion as within the discussing from opinion decisions other state reach of art. 14 conversation that takes support in courts an effort to show for its place any private in home. While there is However, herein. a careful exami decision language some in Blood intimates jurisdictions nation of the in those indi law 14, 70, reading such a broad of art. id. at support majority their for the decision cates 1029, 507 N.E.2d underlying facts strong implied. majority The is not as subsequent decision and the cases inter begrudgingly acknowledges that itself two of preting it make clear that such a conversa it the decisions which relies were subse automatically tion entitled to consti One, Beavers, quently People overruled. v. protection merely tutional because of (1975), 393 Mich. N.W.2d was where it occurred. subsequent overruled decision of the Blood, government In informant awore Michigan Supreme People Court in v. Col during meetings concealed transmitter lins, (1991), 438 Mich. 475 N.W.2d 684 (Blood with the two defendants and Loren- Michigan justifiable court found no zen) conspiracy and others in a involved interpret reason to their state constitutional burglarize gold bars of from a commercial provisions differently search and seizure than establishment... of the .Two conversations under the Federal Constitution. The Michi place admitted evidence had taken at gan Supreme Lopez, Court embraced Lorenzen’s home and the third conversa- Katz, White Caceres decisions. sec place tion had taken at the home of (Fla. Novia Sarmiento, ond, State v. 397 So.2d 643 Turkette, Jr., ... infor- 1981), negated by subsequent was constitu mant had known Turkette and his father approved by tional amendment Florida’s citi years, for about fifteen and Turkette had response zens direct to the Sarmiento posted past the informant’s bail in the Upon recognition decision. that Beavers charges. unrelated law, longer good are no Sarmiento decisions, leaves four Commonwealth v. circumstances, Based on these the court Blood, (1987), 400 Mass. 507 N.E.2d 1029 reasoned because the conversations at (Alaska Glass, 1978), State 583 P.2d 872 private held in in- issue were homes and Brion, 539 Pa. Commonwealth associates, friends or close cluded Blow, (1994), A.2d 287 and State v. 157 Vt. participants reasonable for the to ex- (1991), quoted 602 A.2d 552 each at pect that what was said not become would length by majority, purporting support 68-69, widely more known. Id. at majority Each decision herein. will be N.E.2d 1029. The court further held that discussed in turn. objectively expect “it is reasonable to interchange private conversational in a Nearly majority pages opinion three surreptitiously home will not be invaded quote herein is Massachusetts warrantless electronic transmission or re- Supreme opinion Judicial Blood. cording.” Id. 507 N.E.2d 1029. However, majority opinion nowhere in the acknowledgment subsequent involving there an that Massachu decisions the war- decision, from the Blood seizure of elec- setts has retreated rantless conversations surveillance, though specifically overruling it. tronic courts have concluded Rodriguez, Mass.App. Commonwealth v. that the same concerns were not implicated Ct. 855 N.E.2d 1113 the Massa when the circumstances could distinguished present chusetts Court was faced with an from those Price, light ... example, in Common 562 N.E.2d at 1358. In of these For

Blood. Collado, Mass.App.Ct. recent decisions from the Massachusetts wealth court, that in we held it is clear to me that a critical factor N.E.2d expecta no reasonable the of the “had the Blood decision was status the defendant present long-time while he was informant as a trusted Mend and privacy tion of undercover narcotics offi associate of the defendant. It is not clear to apartment of an negotiated that, presented had an arm’s- if the he me with warrantless cer with whom drugs”; recording drug for the sale of transaction in the defen- length transaction the officer were not an informant dant’s home who does the defendant defendant, Mends,” prior relationship and their interaction was have a “trusted reach the business. the Massachusetts court would primarily centered it in same decision as did Blood. According at N.E.2d 1118-9. Rodriguez, 855 Rodriguez, a critical factor in in to the court differently than I read somewhat Glass the fact was the Blood decision majority Through herein. use of select long-time trusted friend informant was ellipses majority downplays signifi- Noting at Id. one of the defendants. separate cance of Alaska’s constitutional Rodriguez and informant in Glass, the defendant right privacy its decision. associates, or business not close friends were specific found con- the Alaska court “Alaska’s Blood, and distinguished found the court right provision recognizing a stitutional violation, explaining: constitutional privacy infringed” shall not be to be ruling. compelling support for its Glass 583 sum, intercepted conversation exclu- transaction, specifically P.2d at 878. The Alaska court sively a business concerned privacy stated “we believe Alaska’s engaged two individuals who was friends, prohibits amendment the secret electronic place and took in a not close were monitoring upon the of conversations mere the defendant did not over which residence participant.... it clear that it consent of is expectation The indicia of have control. protection penum- Blood, broader than the present that were privacy affords right bral other constitutional including lengthy conversations took inferred added). provisions." (emphasis days Id. 878-9 period of at the homes of place over a associates, Finally, opinion footnote 35 of the ne- Glass and business longtime friends Here, gates implication majori- contained in the the defendant are absent here. ty opinion that the home as the location of expectation privacy lacked a reasonable Therein, recording significant. therefore, successfully and, unable stated, previously Alaska court have “[w]e challenge of the conversation. admission recognized high degree protection sur- Similarly, rejected the court Id. at 1120. rounding the home. We decline to base our suppress argument war RtoocZ-based holding particularized protection, on this illegal drug of an video rantless however, since we have concluded in a motel room in Common transaction privacy infringed the warrant- Price, Mass. 562 N.E.2d wealth v. participant monitoring private less conver- (1990). Therein the court stated: regardless of the locus of the sations that the defendant had We shall assume (internal surveillance.” Id. at n. 35 cita- his conversations expectation omitted) added). According- (emphasis tions Society pre- motel room. ly, provides signif- I do not believe that Glass however, accept any expec- pared, such support majority opinion icant in this The defendant and tation as reasonable. matter. engaged negotiating his associates were people major transaction with That leaves the Brion and Bloio decisions business met, support majority’s opinion just had and whom his herein. whom he However, day be noted that the Penn- had first met the before.... should associates sylvania expressly videotapes Court has limit- viewing A shows occurring in length in-person meetings ed Brion to was an arm’s one with transaction a defendant’s home and has refused to re- suspicion manifestations of and distrust.

H3 quire prior probable a cause upon determination the home of another will have en- law recording telephone for the warrantless of a in forcement activities State. Unlike in this by Pennsylvania, call initiated an informant to the defen jurisdictions Vermont and the dant his at home. Commonwealth Reka upon by majority support relied the to its sie, (2001). 566 Pa. 778 A.2d Similar decision, narrowly Virginia West who defines ly, recognized Pennsylvania a lower court may issue seek such a warrant. Pennsylvania legislature the amended law, Virginia only Under West members of Pennsylvania’s response wiretap statute in to Police, county the acting through State a the Brion decision.15 v. Fet Commonwealth duly prosecutor appointed special or prose ter, A.2d (Pa.Super.Ct.2001), cutor, may a to seek warrant the authorize (2002). aff'd, 570 Pa. A.2d Prior recording in-home from one of five matter, majority to the in decision this the judges. § Pursuant to W. Va.Code 62-1D-8 only jurisdiction rely upon to the Brion deci (1987), “prosecuting attorney any the support finding one-party sion in county duly appointed special or prosecutor consent to record a conversation in non- may apply to one of designated [five] the consenting party’s home was Vermont in Geraw, judges circuit referred to [W. State Va.Code 173 Vt. 795 A.2d 1219 § judge, and such 62-1D-7] wherein the accordance Vermont police provisions may with the grant Act] found that not an an [the could record inter wire, occurring authorizing interception view with order the defendant in the defen by dant’s home without the or defendant’s knowle oral electronic communication an offi dge.16 majority Prior opinion to the investigative this cer of the or law-enforcement matter, Brion, neither Geraw nor agency.” Bloiv had -parte To obtain ex order autho upon by any foreign juris been relied other rizing interception, application such the must contrary diction. As these decisions are to forth set the member of the Police State precedent, this Court’s the in the law vast making application the and the officer autho majority law, simply of states and federal I rizing application. § W. 62- Va.Code 1D-Il(a)(l) do not find them persuasive enough (1987). to Moreover, over de Act State, rule precedent established this “investigative fines or law-enforcement offi majority as done herein. as “a cer” member or members of the De

partment Safety of Public who [State Police] empowered or are to law conduct inves VI. tigations of tooi’ make arrest for offenses “Bring Me the Broomstick of the Witch enumerated” under the Act. W. Va.Code of the West” Then You’ll Your Get 62-lD-2(g) Reading § its Act in Warrant! entirety may reveals the State Police application county through prose I make majority am not convinced prosecutor fully special cutor or for a impact aware warrant its decision to require authorizing pursuant warrants obtained the in-home of events informant, cause, probable Virginia Wiretapping West based and Electronic (hereinafter Act”), judges. Surveillance Act W. to one of five circuit court Act “the sheriff, 62-1D-1, § seq., Va.Code an infor- not sheriff’s deputy et before does authorize mant municipal records conversations or activities in police or officer seek such p. working Majority, 15. 1998 amendment Pa.C.S. undercover. 650 S.E.2d 5704(2)(iv) (2002) § requires showing proba- court, cir 180. The Geraw described the one-party designated ble cause consent to a slating presented by cumstances "The officers prior interception officer of an Ihemselves, identified and defendant invited oral communication in home of a non-con- They them into residence. sat down at defen senting party consenting where and non- both table, dant's where the kitchen officers inter consenting parties physically present relationship viewed defendant about his interception home at probable time of the both unless defendant, minor. Unbeknownst to the officers exigent cause and circumstances exist. secretly tape recorded the conversation.” Ger aw, Contrary 795 A 2d at 1220. representation of this case in majority opinion, officer was not subject pursuant actually occurred —evidence or to conduct surveillance what warrant Further, credibility duly the Act attack intimidation or issues. issued warrant. may perhaps re- now forever permit magistrate This evidence does judges majority State maining circuit court this result of decision lost authorizing opportuni- matter be few the infor- for there a warrant issue And if activity. to obtain the warrants. ties needed mant’s attempts to a one- enforcement now use law contrast, not By Vermont does have activity illegal to party consent wire record Therefore, warrants to con wiretapping act. home, would drug dealer now outside in-home, one-party consent duct step insist that the informant need to law normal come under enforcement’s would complete to the dealer’s residence inside obtaining a procedures for warrant. cover, in order to blow the informant’s sale any Wiretapping permits Act Pennsylvania safety. or her potentially jeopardizing his to investigative or law enforcement officer ability to obtain the war- Given limited president “the a such a warrant obtain Act, by required majority rant under the designee shall be a judge, or his who also message to this has I fear sent pleas.” of of common judge, court simply throughout to drug dealers this State 5704(2)(iv). Pennsylvania § defines Pa.C.S. house, home, your your go into call it conduct as “investigative or law enforcement officer” your illegal and enforce- business there law States, “[a]ny the United of another officer of easily stop you.18 not be able to ment thereof, political state or subdivision or political there Commonwealth or subdivision VII.

of, by to empowered law conduct who investigations or to make for of of arrests “Run, Toto, Majority’s Run!” The Actions chapter in or an enumerated this fenses Will Have Retroactive Effect equivalent jurisdiction, in and crime another majori- finally take I must issue attorney to prosecute authorized law na- ty’s regarding comment the retroactive prosecution of of or such participate matter, in a comment ture of its decision this Thus, § 5702.17 fense.” 18 Pa.C.S. majority herein relegated to a footnote. The per require to these states warrants extent involving con- decided issue defendant’s informant to record conver mit a consensual III, right under Section stitutional Article or a defendant’s sations activities inside Constitution, enti- finding our that he was of home, not requirements do those warrant upon tled to the of a warrant issuance based law enforcement’s activities to restrict infor- probable cause before a majority in opinion this mat extent that the can mant who been into home has invited investigation prosecu ter restricts openly dis- passively record defendant’s tion of serious crimes. played illegal activities. This was not a mere illegal legitimate investigation I fear prophylactic rule. involved procedural or It severely activity hampered drug has been right. a substantive constitutional majority in this matter. Informants Blake, have In State W. Va. drug crimes often substantial issues (1996), may impact potential their trial testi- S.E.2d 550 this Court addressed intimidation, credibility issues, Neu mony whether the rule announced State v. —be man, testimony. S.E.2d 77 or for their W.Va. fear retaliation requiring a court to make a determination on Recordings of an informant’s interaction with knowingly, has provide best the record that defendant the defendant evidence This, course, ignore Pennsylvania "judge” meant defines re- 18. to "[w]hen appli- ferring judge impact drugs to a authorized to receive will that the sale of from homes for, enter, authorizing and to orders cations neighbors ma- businesses. The have on local wire, interceptions or com- electronic oral holding applicable jority’s would also seem be (relat- Subchapter pursuant B munications investigations drug enforce- outside to criminal wire, communication), ing electronic oral ment. any judge Superior Court.” 18 Pa.C.S. § 5702.

H5 voluntarily, intelligently right herein, waived his For respect- the reasons set forth I fully majority opinion dissent from the permitting a of self-incrimination before de- matter. testify fendant his own behalf should be Blake, applied retroactively. this Court MAYNARD, Justice, dissenting: merely “that the rule in

found Neuman was dismayed I deeply majority’s am procedural/prophylactic guide rule to ruling Rarely holding this case! has a proceedings.. courts in future .the Neuman legal this Court rested such a weak requirements, warnings, like the Miranda foundation as the holding. rational instant rights are not constitutional but themselves merely prophylactic designed standards majority opinion The bulk of the amounts every safeguard essentially criminal de- holding concession that its testify supported law, fendant to in his federal constitutional or her own behalf.” law, statutory majority federal of state Blake 197 W. Va. at 478 S.E.2d at legislatures, courts or Virginia West statuto- guide retroactivity In an effort future law, ry precedent and the of this Court. The analyses, held, Syllabus the Court Point 5 rather, majority’s holding, novel is based that Blake solely general on the observation that this deciding The criteria to be used in the historically Court has a bright drawn line retroactivity of new constitutional rules of between searches and seizures the home (a) procedure purpose criminal are: the versus searches and seizures outside the (b) by standards, be served the new the Significantly, home. in reaching this conclu- extent of the reliance law enforcement sion, majority the fact overlooks that standards, (c) on authorities old police informants who are armed with justice effect on the administration of may electronic surveillance devices enter the application retroactive new stan- suspect home of a to obtain evidence which Thus, dards. in a crim- decision against suspect. can then be used As a given prospective appli- inal case is to be result, majority does have to under- (a) only cation if: It established new impossible explaining take the task of (b) law; principle appli- its retroactive significance pres- constitutional between (c) operation; cation would retard its ence and absence of electronic surveil- lance device in an application produce gathering its retroactive informant’s would incriminating evidence. inequitable results. try Let me to make this clear to the aver- Utilizing analysis, the Court Blake age Virginian West that or so he she will determined “because Neuman clarified practical implications understand the applicable procedural only, law and not sub- majority opinion. police, If the without a law, stantive or constitutional it should be warrant, send an informant into a criminal’s given prospective application only. Id. at house, informant can write down 713, 478 S.E.2d at 563. house, illegal he or acts she sees matter, In the majority instant decided testify later in court to of all his observation right. a substantive constitutional As recent acts, illegal including all conversations he

ly stated the United States saw, violating heard and events he Court, a new rule decided constitutional suspect’s rights. constitutional But un- (1) principles applies retroactively “if the rule majority opinion, der the if that same infor- is substantive or the rule is a watershed suspect’s mant enters the house and elec- procedure implicating of criminal conversations, rul[e] tronically records without a obtained, accuracy bring fundamental fairness and of the warrant first that recorded against evidence cannot be the criminal. used proceeding.” Bockting, criminal Whorton v. type This is the of nonsense that makes - U.S. -, -, 1181, 167 127 S.Ct. people shake their heads at court decisions. L.Ed.2d Due to the substantive nature of the constitutional found Also, majority opinion suffers from matter, majority agree in this I cannot attempt support overblown rhetoric in its majority’s their statement that the hold impact holding. per- its The truth is the ing retroactively. apply mitting does not It does. electronic via confiden- surveillance po- literally companions reporting not reach into be

tial informant does doubts, every allays citizen of our State. To .... But if he no or the home of lice has has, them, contrary, it reaches into the homes what doubt he or risks risk speak freely be, suspects criminal who of those is his. In terms of what his course will they company say, of informants whom in the he will or will not do or are what we into their homes. willingly distinguish invite unpersuaded that he would be- probable tween informers on the one hand Further, majority’s holding par- novel probable informers with transmitters presumption tially the flawed rests on possibility on the other. Given the agents prone law to arbi- enforcement probability colleagues that one of is investigate law-abiding trarily citizens. cooperating police, only spec- it with the law-enforce- Cash-strapped and overworked ulation to assert that the defendant’s utter- agencies have no incentive to arbitrari- ment substantially ances different or would ly into the send wired informants homes security any if his sense less he also there law-abiding citizens when are real thought possible suspected that the col- Also, po- investigate. though even crimes wired, league for At sound. least there is currently permitted to lice are use infor- persuasive no evidence the difference mants who are not wired sound obtain electronically respect in this between the against suspect suspect’s evidence unequipped agent equipped and the is sub- obtaining a home without first search war- enough require stantial discrete consti- rant, simply there evidence that recognition, particularly tutional under the practice arbitrarily police use such a inves- Fourth Amendment ruled which is fluid law-abiding Why tigate citizens. then should concepts of “reasonableness.” presume fact that we that the informants are ready permitted spawn a wire would Nor should we be too to erect to wear pro- orgy arbitrary police conduct? constitutional barriers to relevant and of bative evidence which is also accurate and majority’s spurious anal In contrast to the An recording reliable. electronic will ysis reasoning of the United States many produce times a more reliable rendi- White, Supreme Court in United States v. tion what a than of defendant has said will 91 S.Ct. U.S. 28 L.Ed.2d 453 memory police agent. the unaided It (1971), in which the Court held that be that with the also Fourth Amendment was not violated likely existence it is less that the informant police failure of the to obtain authori mind, change will less chance suspect’s zation to have an informant enter a injury suppress threat or will unfavorable wearing home an electronic surveillance de evidence and less chance cross-exami- White, vice. In the Court l’easoned: testimony. nation will confound the Con- ... problem expectations Our is what obviously like siderations these do not fa- privacy constitutionally “justifiable”' are —(cid:127) defendant, prepared vor the be we are not expectations what the Fourth Amendment to hold that defendant who has no consti- protect will in the absence of a warrant. tutional to exclude the informer’s un- far, permits So the law the frustration of testimony aided nevertheless has Fourth expectations permit- actual privilege against a more accu- ting testimony authorities to use the question. rate version of the events in those associates who for one reason or It is thus untenable to consider the ac- another have determined to turn to the reports police agent tivities and police, by authorizing as well as use himself, warrant, though acting without a gives .... protec- informants If the law investigative to be a “reasonable” effort wrongdoer tion to the ac- whose trusted lawful under Fourth Amendment complice police agent, is or becomes nei- agent but to view the same with a recorder protect ther him should when same conducting transmitter “unreason- agent has recorded or transmitted the con- and unconstitutional able” search and sei- versations which are later offered in evi- zure. prove dence to the State’s case. White, 752-753, Inescapably, contemplating illegal one 401 U.S. 91 S.Ct. at 1126- (citation omitted). activities must realize and risk that his I think that when

H7 Court, Supreme opin- a well-reasoned ion, police finds that conduct does not violate Amendment,

the Fourth should

adopt Supreme reasoning the U.S. Court’s regard

with to our own constitutional search provisions.

and seizure sum, essentially majority’s rule new significant support

is devoid of legal reasoning. unnecessary

sound rule is

protect law-abiding citizenry from arbi-

trary use of confidential informants

police. It protecting is also useless in crimi- suspects arbitrary police

nal conduct use

since can informants who

armed with electronic surveillance devices suspect’s

enter a purpose home for the

gathering Further, incriminating evidence.

the new rule at odds constitution- thinldng

al United States

Court, Congress, the United States the ma- states,

jority of precedent and the of this Finally, troubling,

Court. and most is that likely majority’s effect new rule legitimate

to make police investigations of suspects

criminal time-consuming, more com-

plex, reasons, and difficult. For all these I

dissent.

650 S.E.2d 216 Virginia,

STATE of West Plaintiff

Below, Appellee, WHITTAKER,

Valerie Defendant

Below, Appellant.

No. 33037. Appeals Court of Virginia.

West

Submitted Feb. 2007. April 2007.

Decided

Dissenting Opinion of Justice

Albright May

Dissenting Opinion of Justice

Starcher June

Concurring Opinion of Justice

Maynard 29, 2007. June

Case Details

Case Name: State v. Mullens

Court Name: West Virginia Supreme Court

Date Published: Apr 13, 2007

Citation: 650 S.E.2d 169

Docket Number: 33073

Court Abbreviation: W. Va.