W.Va. holds that surreptitious single party recording in the target’s home violates the state constitution, overruling prior authority from 1986 that did not consider the state constitution, rejecting United States v. White on state constitutional grounds and adopting Justice Harlan’s dissent, and analyzing cases from several states. State v. Mullens, 2007 W. Va. LEXIS 10 (February 28, 2007), an important and invaluable opinion on this court’s views of the erosion of individual privacy as technology advances, giving meaning to the Katz doctrine that “Fourth Amendment protects people, and not places”:
In a six to three decision, the United States Supreme Court reversed the decision of the Court of Appeals. Thus, the judgment in White was rendered in a plurality opinion. The plurality opinion justified the Court’s judgment as follows:
“No warrant to ‘search and seize’ is required … when the Government sends to defendant’s home a secret agent who conceals his identity and makes a purchase of narcotics from the accused, or when the same agent, unbeknown to the defendant, carries electronic equipment to record the defendant’s words and the evidence so gathered is later offered in evidence.
“. . .
“Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter’s Fourth Amendment rights. For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.”
White, 401 U.S. at 749-51, 91 S.Ct. at 1125-26, 28 L. Ed. 2d at 457-58 (internal citations omitted).
The decision in White stands for the proposition that a person does not have an expectation of privacy regarding conversations held in his/her home with a third party. Without such an expectation of privacy, under White the Fourth Amendment does not require the police to obtain judicial authorization to send an informant wearing an electronic surveillance device into the home of another person. See also United States v. Eschweiler, 745 F.2d 435 (7th Cir. 1984); (holding that informant’s use of electronic surveillance device in defendant’s home did not violate the Fourth Amendment); United States v. Hankins, 195 Fed. Appx. 295 (6th Cir. 2006) (same); United States v. Brathwaite, 458 F. 3d 376 (5th Cir. 2006) (same); United States v. Davis, 326 F.3d 361 (2nd Cir. 2003)(same).
Three Justices dissented from the majority’s judgment in White. All three Justices believed that the Fourth Amendment required federal officials to obtain a warrant before attaching an electronic surveillance device to an informant, for the purpose of capturing conversations with a suspect, regardless of where the conversations were held. The position taken by the dissenters was articulated best in the dissenting opinion of Justice Harlan. In his dissent, Justice Harlan made the following observations:
“The impact of the practice of third-party bugging, must, I think, be considered such as to undermine that confidence and sense of security in dealing with one another that is characteristic of individual relationships between citizens in a free society. … The argument of the plurality opinion, to the effect that it is irrelevant whether secrets are revealed by the mere tattletale or the transistor, ignores the differences occasioned by third-party monitoring and recording which insures full and accurate disclosure of all that is said, free of the possibility of error and oversight that inheres in human reporting.
“Authority is hardly required to support the proposition that words would be measured a good deal more carefully and communication inhibited if one suspected his conversations were being transmitted and transcribed. Were third-party bugging a prevalent practice, it might well smother that spontaneity–reflected in frivolous, impetuous, sacrilegious, and defiant discourse–that liberates daily life. Much offhand exchange is easily forgotten and one may count on the obscurity of his remarks, protected by the very fact of a limited audience, and the likelihood that the listener will either overlook or forget what is said, as well as the listener’s inability to reformulate a conversation without having to contend with a documented record. All these values are sacrificed by a rule of law that permits official monitoring of private discourse limited only by the need to locate a willing assistant.
…
“Finally, it is too easy to forget–and, hence, too often forgotten–that the issue here is whether to interpose a search warrant procedure between law enforcement agencies engaging in electronic eavesdropping and the public generally. By casting its ‘risk analysis’ solely in terms of the expectations and risks that ‘wrongdoers’ or ‘one contemplating illegal activities’ ought to bear, the plurality opinion, I think, misses the mark entirely. … The very purpose of interposing the Fourth Amendment warrant requirement is to redistribute the privacy risks throughout society in a way that … would prevent public officials from engaging in that [third-party bugging] practice unless they first had probable cause to suspect an individual of involvement in illegal activities and had tested their version of the facts before a detached judicial officer. The interest [the majority] fails to protect is the expectation of the ordinary citizen, who has never engaged in illegal conduct in his life, that he may carry on his private discourse freely, openly, and spontaneously without measuring his every word against the connotations it might carry when instantaneously heard by others unknown to him and unfamiliar with his situation or analyzed in a cold, formal record played days, months, or years after the conversation. Interposition of a warrant requirement is designed not to shield ‘wrongdoers,’ but to secure a measure of privacy and a sense of personal security throughout our society.
“The Fourth Amendment does, of course, leave room for the employment of modern technology in criminal law enforcement, but in the stream of current developments in Fourth Amendment law I think it must be held that third-party electronic monitoring, subject only to the self-restraint of law enforcement officials, has no place in our society.”
White, 401 U.S. at 787-90, 91 S. Ct. at 1143-45, 28 L. Ed. 2d at 478-80 (Harlan, J., dissenting) (internal citations omitted).
In addition to the dissenters in White, scholars have argued that the Fourth Amendment should require a warrant to be issued before the police send an informant into a suspect’s home while wearing an electronic surveillance device. The following is a cursory review of the criticisms of White by some scholars:
“Justice Harlan’s dissent in United States v. White warned against unsupervised use of government power to spy on the people. He urged that electronic and false-friend surveillance … be permitted only under the warrant requirements of the Fourth Amendment, so that government intrusion is possible only if a magistrate agrees with the government that there is probable cause. Respect for the principles that underlie the Fourth Amendment and the rebellion that produced it, demands no less. … By declaring that one has no reasonable expectation of privacy when speaking with another, the Court removes conversation from the protections of the Fourth Amendment, leaving government power unchecked. The Amendment becomes an empty, and mocking, promise. The Court has thus abdicated the judicial function in an area so sensitive that it lay at the heart of the revolution.”
Donald L. Doernberg, “Can You Hear Me Now?”: Expectations of Privacy, False Friends, and the Perils of Speaking under the Supreme Court’s Fourth Amendment Jurisprudence, 39 Ind. L. Rev. 253, 306-08 (2006).
“Unless the White plurality truly is willing to saddle American society with the universal risk that every conversation may be electronically monitored, then the White plurality view is not only illogical and unreasonable–it is absurd. Moreover, it defies common sense as well as the common understanding of Americans who yet have some sensitivity to the ‘qualitative difference’ between electronic surveillance and conventional police investigation.”
Mona R. Shokrai, Double-Trouble: The Underregulation of Surreptitious Video Surveillance in Conjunction with the Use of Snitches in Domestic Government Investigations, 13 Rich. J.L. & Tech. 3, 58 (2006) (quoting Tom P. Conom, Privacy and the Fourth Amendment in the Twenty-First Century, 19 Champion 13, 18 (1995)).
“The White plurality, without any discussion or analysis of the doctrinal shift announced in [Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967)] reaffirmed prior holdings that authorized unchecked surveillance of private conversations and unbridled invasions of private homes and offices whenever informants are available to gather information for the government. If the ‘Fourth Amendment protects people, and not places,’ as Katz insisted, then why is the Amendment inapplicable against government efforts to record conversations or infiltrate homes or offices using secret informants? If the Fourth Amendment restrains the discretion of the police to wiretap or ‘bug’ private conversations (conducted in telephone booths), it is not apparent why that same provision is inapplicable when the police monitor and record private conversations through the use of a secret informant deliberately position(ed) to hear those conversations. After all, a secret informant acts as a ‘human bug’ for the government.”
Tracey Maclin, Katz, Kyllo, and Technology: Virtual Fourth Amendment Protection in the Twenty-first Century, 72 Miss. L.J. 51, 76 (2002).
“It cannot be denied that one risks public revelation of private thoughts any time one takes on a confidante. Once again, however, the Court’s assumption of the risk/implied consent analysis takes on an air of fantasy. … The Court’s analysis in its undercover cases is based on a dangerous premise: that we should expect no privacy from the government when we do not expect it from others. If this premise were taken seriously, the only sphere of privacy still protected from unnecessary government intrusion would be what we kept to ourselves. …
“Furthermore, undercover activity is more likely than other types of searches to occasion prolonged insinuation into people’s privacy. In the typical search and seizure scenario, the target can minimize the intrusion by consenting to particular actions or proving his or her innocence in some way. When the government proceeds covertly, however, these options are not available. Added to this denigration of individual interests is the damage undercover police work causes to the democratic state’s objective of remaining legitimate. First, because it relies on fraud and deceit, covert investigation undermines trust in the government. More importantly, it increases distrust of everyone, since anyone could be a government agent. …
“… Thus, undercover activity undercuts both the state’s interest in maintaining the allegiance of its citizenry and its objective of nurturing an open, democratic society.
“Because of these possible effects, one might argue that undercover activity should be banned. … At the least, judicial authorization should be obtained prior to any nonexigent undercover activity. …
Christopher Slobogin, The World Without a Fourth Amendment, 39 UCLA L. Rev. 1, 103-05 (1991). See also Tracey Maclin, Informants and the Fourth Amendment: A Reconsideration, 74 Wash. U. L.Q. 573, 617 (1996) (“[W]hen I open my front door to a friend, to an overnight delivery worker, or to a complete stranger, access is afforded only to those whom I knowingly admit. If the police want access to my home, they should follow lawful procedure. At times, stealthy entries may be necessary; but under the Constitution, the police cannot decide by themselves when they will enter a home.”).
Notwithstanding the criticisms of White, the decision remains the law for Fourth Amendment purposes. Thus, insofar as the circuit court found that the Fourth Amendment was not violated by the conduct of the police in this case, that ruling was correct.
The court then analyzes the issue of single party conversation bugging under state statute and concludes that it was valid. But, then turning to the state constitution, it concludes that it was not.
2. One-party consent to electronic surveillance in the home of a suspect and the search and seizure provision of the West Virginia Constitution. Although we have concluded that the conduct complained of in the instant case was lawful under the [statute], we must now decide whether the search and seizure provision of our state constitution permits one-party consent to electronic surveillance in the home of a suspect without a warrant. Article 3, § 6 of the West Virginia Constitution provides:
“The rights of the citizens to be secure in their houses, persons, papers and effects, against unreasonable searches and seizures, shall not be violated. No warrant shall issue except upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, or the person or thing to be seized.”
We have indicated that the purpose of article 3, § 6 “is to impose a standard of ‘reasonableness’ upon the exercise of discretion by government officials, including law enforcement officers, so as to safeguard the privacy and security of individuals against arbitrary invasions [by governmental officials].” State v. Legg, 207 W. Va. 686, 692, 536 S.E.2d 110, 116 (2000) (internal quotations and citations omitted). This Court has also held that “[t]he provisions of the Constitution of the State of West Virginia may, in certain instances, require higher standards of protection than afforded by the Federal Constitution.” Syl. pt. 2, Pauley v. Kelly, 162 W. Va. 672, 255 S.E.2d 859 (1979). Therefore, the mere fact that the Fourth Amendment has been interpreted as allowing one-party consent electronic surveillance in the home of a suspect does not mean that this Court is required to interpret article III, § 6 in the same manner. “This Court has determined repeatedly that the West Virginia Constitution may be more protective of individual rights than its federal counterpart.” State ex rel. Carper v. West Virginia Parole Bd., 203 W. Va. 583, 590 n.6, 509 S.E.2d 864, 871 n.6 (1998). In other words, we may “interpret state constitutional guarantees in a manner different than the United States Supreme Court has interpreted comparable federal constitutional guarantees.” Peters v. Narick, 165 W. Va. 622, 628 n.13, 270 S.E.2d 760, 764 n.13 (1980).
The order of the circuit court and the briefs of the parties failed to cite to any prior decision of this Court addressing the issue of whether our state constitution permits one-party consent to electronic surveillance in the home of a suspect without a warrant. However, this Court has previously addressed the issue. The issue arose in a case that was decided approximately one year before the Act was created.
In State v. Thompson, 176 W. Va. 300, 342 S.E.2d 268 (1986), the police had information that the defendant was selling drugs. As a result of this information the police, without a warrant, placed a radio transmitter on the informant and sent him to the defendant’s home. While in the defendant’s home, the informant purchased drugs, and the transaction was monitored and recorded by the police. The defendant was subsequently prosecuted and found guilty of drug trafficking. One of the issues raised on appeal was that it was error to introduce the tape recording of the drug transaction. The defendant alleged that the tape recording was made in violation of article III, § 6 because the police did not obtain a warrant to have the informant enter his home with an electronic surveillance device. This Court disagreed. In doing so, this Court very briefly looked at its prior decision that involved one-party consent surveillance outside the home. Based upon that decision the Court tersely reasoned as follows:
“The Court also believes that the defendant’s contention that the surveillance was made without a warrant and uninvited constituted an illegal search and seizure is without merit. …
. . .
“Taking the [prior decision into consideration], it is clear that a warrantless electronic recording of a defendant’s conversation made before his Sixth Amendment right to counsel has attached, and made with the consent of a participant to the conversation who, unknown to the defendant, is acting in concert with the police, does not violate the prohibition against unreasonable searches and seizures guaranteed by the Fourth Amendment to the United States Constitution and by article III, section 6 of the West Virginia Constitution.
“Clearly the tape involved in the case presently before the Court was made with the knowledge and consent of [the informant]. At the time the defendant had neither been arrested nor indicted. … We believe that the tape was admissible into evidence.”
Thompson, 176 W. Va. at 305-06, 342 S.E.2d at 273-72.
We are troubled by the complete lack of any analysis in Thompson on the issue of the expectations of privacy in the home. In reaching the conclusion that article III, § 6 allows the police to invade the privacy of a citizen’s home, through an informant wearing an electronic surveillance device without judicial authorization, the Thompson opinion did not provide one sentence discussing the privacy in the home that article III, § 6 is designed to protect. Thompson assumed, without discussion, that no difference existed between a person’s reasonable expectations of privacy in his/her home, versus the privacy a person expects outside the home. See State v. Peacher, 167 W. Va. 540, 567-68, 280 S.E.2d 559, 578 (1981) (“A person’s expectation of privacy in his automobile is less than that which he would have in his home[.]”). This assumption by Thompson guts article III, § 6 and makes it a hollow constitutional protection from unreasonable searches and seizures in the home.
“There is no question … that activities which take place within the sanctity of the home merit the most exacting [article III, § 6] protection.” State v. Lacy, 196 W. Va. 104, 111, 468 S.E.2d 719, 726 (1996). This Court has long held that article III, § 6 “protect[s] the rights of citizens from unreasonable searches and seizures in their houses.” State v. McNeal, 162 W. Va. 550, 555, 251 S.E.2d 484, 488 (1979). For this reason, the jurisprudence of this Court addressing article III, § 6 has “drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” State v. Craft, 165 W. Va. 741, 755, 272 S.E.2d 46, 55 (1980) (internal quotations and citation omitted). That is, with limited exceptions, “any search of a person[‘s] … dwelling on mere suspicion and the seizure of any article found as a result thereof, without … a search warrant, is an unlawful search and seizure in violation of Section 6, Article 3 of the Constitution of West Virginia.” Syl. pt. 1, in part, State v. Smith, 156 W. Va. 385, 193 S.E.2d 550 (1972). See also State v. Slat, 98 W. Va. 448, 449, 127 S.E. 191, 192 (1925) (“Any search of a person’s house without a valid search warrant is an unreasonable search, under section 6, art. 3, [of the] Constitution of West Virginia[.]”). We underscored the significance of the expectations of privacy in the home in State v. W. J. B., 166 W. Va. 602, 612, 276 S.E.2d 550, 556 (1981):
“[T]here is still basic vitality to the ancient English rule that a man’s home is his castle, and he has the right to expect some privacy and security within its confines. This rule arises from a societal recognition that the home shelters and is a physical refuge for the basic unit of society[,] the family. In the criminal law there is a marked recognition of this fact, as shown by the difference in the right to arrest a criminal without a warrant[,] as between his home and a public place.”
W. J. B., 166 W. Va. at 612, 276 S.E.2d at 556.
This Court’s long history of protecting the sanctity of the home from warrantless searches and seizures counsels against allowing Thompson to stand. In Syllabus point 2 of Dailey v. Bechtel Corp., 157 W. Va. 1023, 207 S.E.2d 169 (1974), this Court held:
“An appellate court should not overrule a previous decision recently rendered without evidence of changing conditions or serious judicial error in interpretation sufficient to compel deviation from the basic policy of the doctrine of stare decisis, which is to promote certainty, stability, and uniformity in the law.”
Our decision to depart from stare decisis is based upon a “serious judicial error” in the Thompson opinion. That error was the complete obliteration of the bright line this Court has historically drawn between searches and seizures in the home, versus searches and seizures outside the home. Thompson failed to acknowledge the existence of this distinction. Consequently, we now hold that it is a violation of West Virginia Constitution article III, § 6 for the police to invade the privacy and sanctity of a person’s home by employing an informant to surreptitiously use an electronic surveillance device to record matters occurring in that person’s home without first obtaining a duly authorized court order pursuant to W. Va. Code § 62-1D-11 (1987) (Repl. Vol. 2005). To the extent that State v. Thompson, 176 W. Va. 300, 342 S.E.2d 268 (1986), holds differently, it is overruled.
We are mindful that, in addition to Thompson, the wording of the state’s electronic surveillance Act permits an informant to enter the home of a suspect with a recording device without judicial authorization. However, our rejection of the Thompson decision does not require invalidation of the one-party consent provision of the Act. It is a longstanding fundamental principle of law that “[w]herever an act of the Legislature can be so construed and applied as to avoid a conflict with the Constitution, and give it the force of law, such construction will be adopted by the courts.” Syl. pt. 3, Slack v. Jacob, 8 W. Va. 612 (1875). See State v. Siers, 103 W. Va. 34, 36, 136 S.E. 504, 505 (1927) (“[I]t is a rule of constitutional interpretation that, when two constructions may be placed upon a statute, one of which renders it constitutional and the other unconstitutional, it is the duty of the courts to so limit the statute as to make it comply with constitutional requirements.”). Our ruling today merely limits the one-party consent provision of the Act from being used to send an informant into the home of a suspect to record communications therein without having obtained a search warrant authorizing such conduct. Therefore we hold that, Article III, § 6 of the West Virginia Constitution prohibits the police from sending an informant into the home of another person under the auspices of the one-party consent to electronic surveillance provisions of W. Va. Code § 62-1D-3(b)(2) (1987) (Repl. Vol. 2005) where the police have not obtained prior authorization to do so pursuant to W. Va. Code § 62-1D-11 (1987) (Repl. Vol. 2005).
Turning to the facts of this case, there is no dispute. The police failed to obtain judicial authorization to send the informant into Mr. Mullens’ home while the informant was wearing an electronic surveillance device. Consequently, the trial court should have granted Mr. Mullens’ motion to suppress the electronic surveillance recordings obtained in his home by the informant. Insofar as Mr. Mullens entered a conditional plea of guilty, on remand he may exercise his right to withdraw the guilty plea and let a jury decide his fate.
(Dissenting opinion filed April 13, 2007)
