W.D.N.C.: Wired CI invaded no REP in transmitting audio and video to waiting officers

Defendants admitted a wired CI into a home for a drug deal. The CI transmitted real time to officers outside audio and video of the drugs and guns. No reasonable expectation of privacy was involved. He could see exactly what they wanted him to see. United States v. Vanover, 2016 U.S. Dist. LEXIS 66723 (W.D.N.C. May 20, 2016):

Considering the factual circumstances here, the court finds that Defendants’ Fourth Amendment rights were not violated when Mr. Moon, acting as a confidential informant for the Graham County Sheriff’s Office, was invited into the Defendants’ home on May 6, 2016. Nor were the Defendants’ rights violated when Mr. Moon’s mobile phone, located in his back pocket, simultaneously transmitted to law enforcement officers a recording of the conversation that took place between Mr. Moon and Defendant Vanover inside Defendants’ home. And finally, Defendants’ Fourth Amendment rights were not violated when Mr. Moon, holding the mobile phone given to him by law enforcement officers, recorded video footage of marijuana and weapons located inside the Defendants’ home. Although the Fourth Circuit has not yet expressly ruled on the issue, three other circuit courts have concluded that video evidence gathered inside a defendant’s private room by an invited visitor should, for Fourth Amendment purposes, be treated similarly to audio recordings. See Davis, 326 F.3d at 366; Brathwaite, 458 F.3d at 381; Lee, 359 F.3d at 201-02 (“[T]he Supreme Court has not drawn any distinction between those two types of evidence, and we similarly see no constitutionally relevant distinction between audio and video surveillance in the present context.”). No evidence presented at the suppression hearing indicates that Mr. Moon saw or heard any activity within the Defendants’ home that the Defendants did not intend for him to witness.

Because the Defendants voluntarily forfeited any privacy interest they had in what Mr. Moon saw and heard while a guest in their home, Mr. Moon’s presence and surreptitious recordings could not have constituted an unreasonable government intrusion into a societally recognized expectation of privacy. Consequently, no government search was effected by Mr. Moon and therefore the Defendants’ Fourth Amendment rights were not implicated by his surveillance.