August 20, 2007

I have mentioned in previous columns my interest in two issues – one related to scrap metal theft, the other dealing with address confidentiality for victims of domestic violence – and my hope that they will be worked on during the upcoming special session. But another issue that has been the focus of much discussion in recent months will be on the special session agenda, and that deals with the use of wire tapping devices by law enforcement.

Here is a rundown of the legal aspects of the case.

In a decision referred to as "State v. Mullens" that was issued by the West Virginia Supreme Court in February, a provision in state code that had allowed a police informant to enter into a private home with an electronic wire to record conversations that occur in that home was limited. The high court found that an article of the West Virginia Constitution prohibiting unreasonable searches and seizures prevents police from invading "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...."

This ruling has caused a great deal of concern among those in law enforcement.

In 1987, the Legislature enacted the Wiretapping & Electronic Surveillance Act, which allows law enforcement to obtain warrants for a variety of electronic surveillance techniques to intercept communications. The Act establishes a process for obtaining a warrant from one of five designated circuit judges and requires that the warrant be requested by a county prosecutor who must provide specific evidence to substantiate the warrant. But the Act also contains an exemption from the need to obtain a warrant for recording communications when one party consents to the recording.

In the Mullens decision, the state Supreme Court found that when those conversations occur in a home, the right of privacy afforded by our Constitution to our homes requires that a warrant first be obtained.

According to research by House of Delegates staff, thirty-nine states and the federal government recognize one-party consent, which allows a conversation to be recorded when one party to the conversation consents. Eleven states require both parties to consent. West Virginia, pursuant to the 1987 Wiretapping & Electronic Surveillance Act, is a one-party consent state. The statute does not distinguish between conversations held in a home or other location. In the Mullens case, the Court overturned a prior state case that granted a broad acceptance of the one-party consent regardless of whether it occurred in a home or otherwise.

The high court’s majority opinion stated:

"[Our] analysis indicates that the appellate courts in at least fifteen states have addressed the issue of an informant entering the home of a suspect, while the informant was wearing an electronic surveillance device not judicially approved. Nine courts permit such surveillance, however, only four of those courts have decided the issue on state constitutional grounds. Six courts prohibit such surveillance, and four of those courts have done so on state constitutional grounds. Thus, it would appear that half of the courts in other states addressing the issue have rejected [a previous U.S. Supreme Court] decision on state constitutional grounds, and thus prohibit an informant from entering the home of a suspect while wearing an electronic surveillance device without a search warrant having been issued."

It is difficult to predict how this issue will be resolved, but there is discussion about expanding the number of circuit court judges who can issue warrants for undercover drug operations, or devising a different process for gaining a warrant for those types of searches.

I welcome and appreciate your input on these or any other legislative issues. Write to House Majority Leader Joe DeLong, Building 1, Room 228-M, 1900 Kanawha Blvd. E., Charleston, 25305, or joe@joedelong.com, or call 304-340-3220.