{"id":1650,"date":"2008-02-16T06:27:48","date_gmt":"2008-01-01T11:19:43","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-01-01T11:19:43","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1650","title":{"rendered":"Defendant’s wife could consensually record him without violating privilege in Virginia in crime against her daughter"},"content":{"rendered":"

Consensual recording of defendant by his wife did not violate the Fourth Amendment or statutory privilege, which had been amended before defendant’s trial. The offense was against his wife’s daughter, and that was an exception under the statute<\/a>, adopted after the offense. Carpenter v. Commonwealth<\/a>, 51 Va. App. 84, 654 S.E.2d 345 (2007):<\/p>\n

Appellant also argues that his wife’s recording of his statements violated his right under the Fourth Amendment to be free from unreasonable searches and seizures because Ms. Carpenter was acting as an agent of the police when she made the recording and that her tape recording of appellant’s statements therefore required a court order pursuant to Code \u00a7\u00a7 19.2-66 and 19.2-68. A tape recording made in violation of these statutes, the argument continues, was not reasonable under the Fourth Amendment because a reasonable police investigation would have carefully obeyed state law regulating the interception and recording of oral communications. Assuming, without deciding, that Ms. Carpenter was acting as an agent of the police, appellant’s argument depends on the premise that his statements were an “oral communication” protected against unauthorized interception or disclosure by Chapter 6 of Title 19.2 of the Code. Appellant’s statements were not an “oral communication” within the meaning of the wiretap statutes for the reasons already mentioned in Part C of this opinion. While appellant’s brief does not offer an additional Fourth Amendment argument, beyond his mistaken claim that the recording violated the wiretapping statutes, we note that the United States Supreme Court has held that a person has no constitutionally protected expectation that a person with whom he converses will not reveal the substance of that conversation to the police. United States v. White<\/em><\/a>, 401 U.S. 745, 751, 91 S. Ct. 1122, 28 L. Ed. 2d 453 (1971). We therefore hold that the introduction of the recording into evidence at appellant’s trial did not violate the Fourth Amendment.<\/p><\/blockquote>\n

Knock and talk of defendant’s house led him to admit officer. While inside, the defendant picked up a humidor off a coffee table and was carrying it, and the officer asked about the marijuana in it. The trial court’s finding of consent was supported by the evidence. State v. Schlauch<\/a>, 2007 Ohio 7053, 2007 Ohio App. LEXIS 6173 (9th Dist. December 28, 2007).*<\/p>\n

Defendant booked into jail on a robbery warrant was subject to a body cavity search that produced drugs hidden in a baggie in his rectum. This was not intrusive because defendant was not even touched. Winston v. Commonwealth<\/a>, 51 Va. App. 74, 654 S.E.2d 340 (2007):<\/p>\n

The Supreme Court’s opinion in Bell<\/em><\/a> governs our approach to this appeal. We conclude that the government has a compelling interest in maintaining order in a jail and in preventing the introduction of contraband into the facility. A prisoner or pretrial detainee has a limited reasonable expectation of privacy in regard to a search of his person. There is no requirement that a search be supported by either probable cause or reasonable suspicion. Instead, the relevant inquiry is whether under all of the circumstances the search was reasonable, which in turn depends on consideration of “the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Bell<\/em>, 441 U.S. at 559.<\/p>\n

As set forth above, case law makes clear a prison search is not subject to a litmus test of probable cause or reasonable suspicion. Applying these principles to this case, we conclude the visual body cavity search of appellant was reasonable and therefore constitutional. Appellant, being held without bond, was entering the inmate population at a detention facility. Given the jail’s responsibility to find and destroy drugs, as well as its obligation to avoid potentially volatile situations, the deputy sheriff was justified in conducting the visual body cavity search. Furthermore, the search was carried out in a reasonable manner that protected appellant’s sense of personal dignity. He was escorted to a private area in which he was asked to disrobe. Two male officers observed him and limited the search to a visual inspection. Neither officer attempted to touch appellant.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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