M.D. Pa.: No Fourth Amendment protection against a wired CI in defendant’s home

There is no heightened Fourth Amendment standard for a consensual recording by a wired CI sent into defendant’s house to record him. Having let the CI in, the expectation of privacy “vanished,” and the Third Circuit has already decided that. United States v. Caple, 2008 U.S. Dist. LEXIS 98966 (M.D. Pa. December 8, 2008):

Defendant attempts to distinguish these cases by pointing out that the conversation here occurred in plaintiff’s home, where he had a heightened expectation of privacy. The defendant in Lee raised a similar argument. In that case, the confidential informant’s recording took place in the defendant’s hotel suite. Defendant argued that the recording should be suppressed, because it “occurred in [his] hotel room, a place where a person has a heightened expectation of privacy.” Lee, 359 F.3d at 200. The Third Circuit Court of Appeals rejected this argument, finding that “[w]hat is significant is not the type of room in which surveillance occurred but [defendant’s] action in admitting [the confidential informant] to the room.” Id. at 201. The expectation of privacy that defendant had while alone in his room “vanished” when he invited the informant into the room. Id. The court concludes that the same reasoning applies here: defendant invited the informant into his home and spoke freely with him. He did not have an expectation of privacy for the conversation in that setting and his recorded conversation with the informant is not protected by the Fourth Amendment. The informant could testify to the contents of this conversation in court, and the court will not prevent the government from supplying the jury an accurate recording of that conversation.