Catholic University Journal of Law and Technology Catholic University Journal of Law and Technology
Volume 29
Issue 1
Fall 2020
Article 3
2020
Privacy, Eavesdropping, and Wiretapping Across the United Privacy, Eavesdropping, and Wiretapping Across the United
States: Reasonable Expectation of Privacy and Judicial Discretion States: Reasonable Expectation of Privacy and Judicial Discretion
Carol M. Bast
University of Central Florida
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Recommended Citation Recommended Citation
Carol M. Bast,
Privacy, Eavesdropping, and Wiretapping Across the United States: Reasonable Expectation
of Privacy and Judicial Discretion
, 29 Cath. U. J. L. & Tech 1 (2020).
Available at: https://scholarship.law.edu/jlt/vol29/iss1/3
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1
PRIVACY, EAVESDROPPING, AND
WIRETAPPING ACROSS THE UNITED
STATES: REASONABLE EXPECTATION OF
PRIVACY AND JUDICIAL DISCRETION
Carol M. Bast
*
I. Communication Privacy .............................................................................4
II. State Constitutional Privacy Provisions, Informants, and the Home .........9
A. Alaska ...................................................................................................10
B. Connecticut ..........................................................................................13
C. Massachusetts ......................................................................................13
D. Montana ...............................................................................................18
E. North Dakota .......................................................................................21
F. Pennsylvania ........................................................................................21
G. Vermont ................................................................................................24
H. West Virginia .......................................................................................27
I. Wyoming ..............................................................................................30
III. State Constitutional Privacy Provisions and State Statutes ..................31
IV. All-Party Consent .................................................................................35
A. California .............................................................................................36
Carol M. Bast is professor in the Department of Legal Studies at the University of Central
Florida, where she has taught for the past thirty years. She teaches Legal Research and
Legal Writing and authored an undergraduate textbook on those topics. She teaches the
survey course, Law and the Legal System, and co-authored an undergraduate textbook used
in the course. Her areas of research and writing include eavesdropping and wiretapping,
plagiarism, legal ethics, legal research, legal writing, and international trade agreements.
She served as editor in chief of the JOURNAL OF LEGAL STUDIES IN BUSINESS, November
2008 – November 2010; she served as editor in chief of the JOURNAL OF LEGAL STUDIES
EDUCATION, August 2006 – August 2008. Prior to becoming a professor, Bast clerked for a
federal district judge and practiced corporate, securities, and real estate law. She received
her LL.M. in International Economic Law and Policy from the University of Barcelona in
2016, her J.D. magna cum laude from New York Law School in 1982, and her B.A. from
Kalamazoo College in 1974.
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B. Florida .................................................................................................36
C. Illinois ..................................................................................................39
D. Maryland ..............................................................................................39
E. Massachusetts ......................................................................................40
F. Michigan ..............................................................................................41
G. Montana ...............................................................................................44
H. Nevada .................................................................................................44
I. Oregon .................................................................................................45
J. Pennsylvania ........................................................................................46
K. Washington ..........................................................................................47
V. One-Party Consent ...................................................................................50
A. South Dakota ........................................................................................50
B. Texas ....................................................................................................51
C. Wisconsin .............................................................................................52
VI. The Reasonable Expectation of Privacy Standard as Based on
Discretion .........................................................................................................52
VII. The Reasonable Expectation Standard and Interpretation of a State
Constitution ......................................................................................................54
A. Alaska ...................................................................................................55
B. Connecticut ..........................................................................................55
C. Massachusetts ......................................................................................56
D. Montana ...............................................................................................57
E. North Dakota .......................................................................................59
F. Pennsylvania ........................................................................................59
G. Vermont ................................................................................................60
H. West Virginia .......................................................................................61
VIII. The Reasonable Expectation Standard and Interpretation of All-Party
Consent Statutes ...............................................................................................61
A. Florida .................................................................................................61
B. Maryland ..............................................................................................63
C. Michigan ..............................................................................................63
D. Pennsylvania ........................................................................................64
E. Washington ..........................................................................................65
IX. The Reasonable Expectation Standard and Interpretation of One-Party
Consent Statutes ...............................................................................................66
A. Texas ....................................................................................................66
B. Wisconsin .............................................................................................67
X. Conclusion ...............................................................................................68
Appendix A ......................................................................................................72
Appendix B .......................................................................................................84
Appendix C .......................................................................................................87
2020] Privacy, Eavesdropping, and Wiretapping 3
One-party consent and all-party consent eavesdropping and wiretapping
statutes are two broad pathways for federal and state legislation to deal with the
problem of secret taping; in addition, some states protect conversation under
state constitutions. Whether a conversation is protected against being taped as a
private conversation is often gauged by the reasonable expectation of privacy
standard. Judges in both all-party consent and one-party consent jurisdictions
have had to use their leeway under the reasonable expectation of privacy
standard to arrive at what at the time seemed to be the most appropriate solution,
perhaps in doing so creating a case-law exception.
Although privacy is difficult to define, Alan Westin provided the following
definition in his classic book Privacy and Freedom: “Privacy is the claim of
individuals, groups, or institutions to determine for themselves when, how, and
to what extent information about them is communicated to others.”
1
An
individual who provides private information to the government or to a second
individual loses control over the information, ceding power to another entity or
individual. The individual may feel helpless in the face of such a loss.
Curiosity about the private activities of others and enforcement of laws
through government surveillance are widespread yet have their limits.
Eavesdropping, typified by nosy neighbors secretly spying upon one’s private
conversations, has been disfavored for hundreds of years. Another historic
privacy protection is against government intrusion, enshrined in the Fourth
Amendment to the United States Constitution as the prohibition against
unreasonable search and seizure. The right against unreasonable search and
seizure is similarly safeguarded in the Bill of Rights provisions of the
constitutions of all fifty states, with the constitutions of certain states explicitly
guaranteeing a right to privacy. There were some historic exceptions to the right
to privacy. By the 1900s, law enforcement was using government informants to
secretly intercept a suspect’s conversations and could use a wiretap to secretly
listen to a suspect’s telephone conversations.
Federal protection against eavesdropping and wiretapping did not come until
two-thirds through the twentieth century. In United States v. Katz in 1967,
2
the
United States Supreme Court announced that Fourth Amendment protection
covered wiretapping so long as the suspect had a reasonable expectation of
privacy. The following year, Congress enacted federal legislation regulating
government and private citizen eavesdropping and wiretapping.
3
The federal
1
ALAN F. WESTIN, PRIVACY AND FREEDOM 7 (1967).
2
Katz v. United States, 389 U.S. 347, 358 (1967). The reasonable expectation of
privacy test came from Justice Harlan’s concurrence in Katz: “there is a twofold
requirement, first that a person have exhibited an actual (subjective) expectation of privacy
and, second, that the expectation be one that society is prepared to recognize as
‘reasonable.’”; Id. at 361 (Harlan, J., concurring).
3
Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat.
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legislation did permit recording with the consent of one party to the
conversation. Some states had already enacted protection against eavesdropping
and wiretapping by 1968 and most states followed suit after 1968.
4
Many states
followed the federal legislation, permitting recording with the consent of one
party to the conversation. However, a minority of the states require all party
consent to record a conversation.
5
Section I explains the reasons for communication privacy protection. Section
II includes case-law examples of states deciding whether to protect privacy
under state constitutions, with a primary focus on an informant or a police officer
and the home. Section III gives an overview of state constitutional privacy
provisions and the subject matter of state eavesdropping and wiretapping
statutes. Sections IV and V provide case-law examples interpreting all-party and
one-party consent statutes. Section VI gives an overview of judicial discretion
in applying the reasonable expectation of privacy standard. Sections VII, VIII,
and IX review case-law interpreting state constitutions, all-party consent
statutes, and one-party consent statutes with a focus on the use of the reasonable
expectation of privacy standard.
I. COMMUNICATION PRIVACY
Rapid advances in technology that might almost effortlessly and secretly
capture otherwise private conversation are a cause for concern. In 1966, certain
scholars were sufficiently prescient to recognize that the effects of technology
on privacy should be studied: “Of paramount importance was the challenge
perceived to individual privacy. Not only privacy from unscrupulous, criminal,
or pathological persons. Not alone privacy from aggregations of public or private
power, but privacy also from simply the aggressive, or the curious, who may be
tempted to use the new techniques.”
6
In a conversation disclosing intimate or confidential details, the person
speaking may be trusting in their relationship with the other parties to the
conversation that the other parties not reveal matters disclosed in confidence.
There may be little difference in some circumstances of recounting the substance
of a conversation versus playing the tape of a conversation. A party to a
conversation is typically unconstrained from repeating the conversation later.
197 (codified as amended at 18 U.S.C.A. §§ 2510-2521).
4
Laws on Recording Conversations In All 50 States (2019), MATTHIENSEN, WICKERT &
LEHRER, S.C., https://www.mwl-law.com/wp-content/uploads/2018/02/RECORDING-
CONVERSATIONS-CHART.pdf (last updated Oct. 24, 2019).
5
Id. at 2.
6
Oscar M. Ruebhausen, Preface to ALAN F. WESTIN, PRIVACY AND FREEDOM ix & xi
(1967).
2020] Privacy, Eavesdropping, and Wiretapping 5
Another party shows respect for the speaker in keeping the information
confidential. However, the speaker may not have gauged the relationship
accurately as one of trust, or the parties may have a falling out. One party may
harbor ill-will toward the speaker that the speaker is unaware of and may have
malicious intentions in secretly taping a conversation. A party who discloses the
speaker’s information breaches the speaker’s trust and confidence,
demonstrating disrespect for the speaker.
An outsider or a false friend, such as an informant, may use false pretenses to
enter an otherwise private area to secretly tape a conversation. Each individual
has something that the individual would rather keep hidden from public view.
Someone else might use the private information to the individual’s disadvantage.
The information might appear to embarrass or discredit the individual, tarnish
the individual’s reputation, expose the individual to ridicule or scorn, or place
the individual in disrepute. An outsider may use an individual’s personal
information to blackmail the individual.
Keeping something hidden may be sometimes equated with having done
something wrong that the person wants to conceal or keep secret. A common
misperception is that one has nothing to hide if one has done nothing wrong.
This perception may persuade society to sacrifice individual privacy in favor of
national security when faced with a crisis.
7
However, the Fourth Amendment
guarantees the individual’s security by prohibiting government intrusion into the
individual’s privacy.
8
The individual should be able to safeguard private
information free from government intrusion and without fear that it may be
secretly recorded, whether by government agents or by others. Privacy is a
valuable individual commodity vital to the person’s wellbeing and should be
viewed as positive. Human nature desires a certain modicum of respite or
personal distance from others and needs to control the flow of personal
information to others. Privacy enables the individual to determine when, where,
and in what manner personal details are disclosed to others.
Erratic or aberrant behavior may lead to unreasonable suspicion of someone
who operates outside usual societal norms even if the behavior is in no way
unlawful and might be forward-thinking, simply an expression of individuality.
What society characterizes as negative differences can be strengths when an
individual arrives at alternate solutions to problems faced. The initial reaction
might be for society to ostracize someone exhibiting deviant but not unlawful or
harmful behavior. Expression of varying viewpoints may be valuable. The
individual exhibiting behavior outside the norm might be acting out of an
7
See Daniel J. Solove, “I’ve Got Nothing to Hide” and Other Misunderstandings of
Privacy, 44 SAN DIEGO L. REV. 745, 748–53 (2007).
8
U.S. CONST. art. IV; e.g., Derek M Alphran, Changing Tides: A Lesser Expectation of
Privacy in a Post 9/11 World, 13 RICH. PUB. INT. L. REV. 89, 95 (2019).
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artistic, musical, or intellectual bend that later is recognized as genius. The
behavior may be an expression of free speech or political activism even if society
has a negative regard for behavior differing from the norm. Disclosure of the
behavior may result in the individual having to justify the behavior.
The individual finds it almost impossible to successfully conduct business,
professional, governmental, and personal affairs without verbally
communicating information to others. There may be good reasons to prohibit
secret taping to guard against loss of trade secrets, business information
beneficial to a competitor, government secrets crucial to national security,
strategic information of a political party, and secrets of private and religious
organizations. The information disclosed in an otherwise private conversation
may be sensitive or intimate, such that disclosing it would injure someone
psychologically or physically. Giving someone with nefarious motives access to
financial or other sensitive information may lead to financial insecurity or loss.
Disclosing secretly taped information may lead to hurt feelings of insecurity,
embarrassment, or betrayal and may damage one’s reputation or personality,
perhaps by placing someone in a false light. If the taping involves a politician,
an opposing candidate could use a secretly made tape to the opposing
candidate’s advantage. Some fear that legalizing one-party taping may stifle free
and open conversation. Some may value privacy above the ability to later share
a tape of a conversation with others.
Safeguarding certain areas of one’s life as personal may be essential to one’s
wellbeing, dignity, reputation, intellectual freedom, freedom of association, and
personal autonomy. The individual must keep a certain social distance between
the individual and other members of society. The individual needs an area safe
from interference by society or one might feel powerless and unable to freely
control one’s decisions. At times, the individual merits an area of seclusion free
from outside intrusion. Outside intrusion into one’s personal life may inhibit
one’s activities, may harm one’s reputation, and do harm to a person’s psyche
by permitting social control.
Fear of surveillance may lead to one’s inability to make decisions freely.
Discrete pieces of information, which do not harm the individual, might be
aggregated to invade a person’s privacy. Society may gain a mistaken, distorted
impression of the individual, should less than the whole story be revealed. The
harm may be incremental as an outsider pieces together information about the
individual’s private life. Sometimes, an individual discloses personal
information for a limited purpose to a third party with the understanding that the
information will not be further disclosed. Loss of privacy may be a product of
information being used for a purpose different from the reason for which it was
originally collected. Knowledge of one’s otherwise private information can
2020] Privacy, Eavesdropping, and Wiretapping 7
create a power imbalance with an outsider forcing the individual to behave in a
certain way or lose privileges or opportunities.
It used to be that one could be assured of privacy if speaking in an enclosed
space and, to some extent, society is comfortable with the loss of privacy
attendant on technological advances; however, technology has made vast
inroads into what was formerly considered private. With recording capability
available in each cell phone, it is tempting to tape conversations. This contrasts
with the limited access to recording equipment prior to the ubiquity of the cell
phone that nearly each person carries. With the ready access to cell phone
recording capability, one might anticipate many conversations being secretly
taped.
In the past, the invasiveness of one not a party to a conversation taping the
conversation has seemed much more intrusive than a party taping a conversation.
Rapid advances in technology may have altered this perception. The common-
place use of technology, such as digital assistants, child monitors, children’s
toys, and home and business security systems, has impacted this viewpoint. This
technology is readily available, widely used, and heavily promoted. Many front
home entrances and garages are protected against theft through the use of
security systems with audio and video recording capability. These security
systems capture the actions and conversations of anyone within range, including
neighbors and persons passing by.
One may have a socially beneficial reason for secretly taping a conversation,
such as gathering evidence of criminal activity or exposing other wrongdoing.
This behavior includes unlawful discrimination, abuse, and sexual harassment.
Alleged abuse might include child, sexual, domestic, or elder abuse, evidence of
which is otherwise almost impossible to gather. A taped conversation is
considerably more reliable and accurate than a party testifying later about the
content of the conversation, even if the testimony is convincing. The recorded
conversation is direct, substantive evidence of what transpired. A recorded
conversation is more powerful than secondhand testimony about the
conversation because the recording memorializes the conversation and captures
the exact words used, the tone of voice, and other inflections that might not
otherwise be apparent. Someone who later tries to distort the conversation runs
the risk of being confronted with the taped conversation. Other legitimate
reasons for taping include transparency, security, and speaker accountability,
especially for one with administrative, monitoring, or reporting responsibilities.
Sometimes social good and the individual’s privacy must be balanced against
each other. The government often uses friends of the suspect as government
informants. Use of government informants is troublesome in that it diminishes
the suspect’s freedom of association. The suspect may disclose sensitive
information to a longtime friend turned government informant and the informant
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may be motivated out of self-preservation to gather illicit information from the
suspect to garner better treatment from the government. With the prevalence of
criminal statutes, government monitoring of private activities is troublesome.
An activity that might seem innocuous may become the basis for prosecution
when combined with other circumstances. The government may assume that one
fitting a particular stereotype will act in a stereotypical way. The individual
cannot refute this conclusion if the individual is unaware of the conclusion.
One-party consent could permit an informant to secretly tape a conversation,
to the detriment of the suspect’s sense of security and susceptibility to
government surveillance. The pernicious effect of informant taping could be
multiplied by the informant transmitting the conversation to non-participant
government agents. In United States v. White, a government informant secretly
transmitted a number of a suspect’s conversations, one of which occurred in the
suspect’s home, to third-party government agents.
9
The conversation was not
recorded so it was admitted at trial without issue.
10
The government agents who
conducted the surveillance testified at White’s trial, and the jury convicted
White.
11
The informant was unavailable and did not testify at trial.
12
In 1971, in
a plurality decision in White, the United States Supreme Court held that the
electronic surveillance did not violate White’s Fourth Amendment right against
unreasonable search and seizure.
13
White exposes two opposing views on how a suspect’s conversation should
be analyzed. One view is that whatever the suspect voluntarily reveals to another
is at the risk that the second party may repeat or record the conversation. The
White plurality explained that, “[i]nescapably, one contemplating illegal
activities must realize and risk that his companions may be reporting to the
police.”
14
A suspect’s taped conversation benefits from accuracy in that “[a]n
electronic recording will many times produce a more reliable rendition of what
a defendant has said than will the unaided memory of a police agent.”
15
Other
benefits of taping are that “[i]t may also be that with the recording in existence
it is less likely that the informant will change his mind, less chance that threat or
injury will suppress unfavorable evidence and less chance that cross-
examination will confound the testimony.”
16
The second view, represented by Justice Harlan’s dissent, focused on the
9
United States v. White, 401 U.S. 745, 747 (1971).
10
Id. at 749.
11
Id. at 747.
12
Id.
13
Id. at 754.
14
Id. at 752.
15
Id. at 753.
16
Id.
2020] Privacy, Eavesdropping, and Wiretapping 9
suspect’s expectation of privacy.
17
Constitutional protection should be afforded
to a suspect’s conversation in a situation in which the suspect’s sense of security
is heightened. In his dissent, Justice Harlan stated, “[f]or those more extensive
intrusions that significantly jeopardize the sense of security, which is the
paramount concern of Fourth Amendment liberties, I am of the view that more
than self-restraint by law enforcement officials is required and at the least
warrants should be necessary.”
18
II. STATE CONSTITUTIONAL PRIVACY PROVISIONS,
INFORMANTS, AND THE HOME
As stated in the introduction, the constitutions of certain states include an
explicit right to privacy. In addition, the courts of certain states have interpreted
the state constitution to protect communication privacy.
The home has long been recognized as a place deserving special protection
against government surveillance. An informant often is a false friend who has
known the suspect in the past but is not acting in a trustworthy fashion in
gathering evidence from the suspect. An informant usually acts at the behest of
the government, not out of a desire to perform a public act but to receive a
personal benefit such as a reduced sentence. The entrance of an informant
equipped with a radio transmitter or a secret recording device into a suspect’s
home is a lethal combination. The plurality decision in United States v. White
has been roundly criticized as representing one of the worst configurations of
government surveillance, with one of the conversations with White secretly
transmitted by the informant from the sanctity of White’s home.
19
As more fully described below, the highest courts in six states have interpreted
the state constitutions to outlaw secret taping of a suspect by an informant in the
suspect’s home. Those six states are Alaska, Massachusetts, Montana,
Pennsylvania, Vermont, and West Virginia. The Supreme Court of Wyoming
declined to provide a similar protection under the Wyoming Constitution. The
Supreme Court of Connecticut declined to require all-party consent protection
under the Connecticut Constitution for telephone conversations. The Supreme
Court of North Dakota declined to require all-party consent protection for a face-
to-face conversation occurring in an informant’s vehicle.
17
Id. at 781 (Harlan, J., dissenting).
18
Id. at 786–87.
19
Tracey Maclin, Informants and the Fourth Amendment: A Reconsideration, 74 WASH.
U. L. REV. 573, 613–26 (1996).
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A. Alaska
Alaska is one of the states that explicitly protects privacy in its Constitution.
Article I, section 22 of the Alaska Constitution provides: “The right of the people
to privacy is recognized and shall not be infringed. The legislature shall
implement this section.”
20
The Alaskan legislature has not chosen to protect its
citizens against secret taping through all-party consent, instead permitting secret
taping on the consent of one party. Even so, the Supreme Court of Alaska has
interpreted the privacy provision of the Alaskan Constitution to require all-party
consent when the suspect is in the suspect’s home but not when the suspect is on
a roadway or in a workplace.
21
In 1978 in State v. Glass, narcotics team officers sent an informant equipped
with a radio transmitter into Glass’ home to purchase heroin from Glass.
22
The
police officers stationed outside Glass’ home monitored and recorded the
conversation through the radio transmission.
23
The Supreme Court of Alaska
pointed out that a state constitution could provide broader protection to a suspect
than that guaranteed under the United States Constitution: “Federal courts have
recognized the power of the states to regulate rights to privacy in a manner
broader than the federal protections.”
24
In interpreting the privacy provision of the state constitution, the Supreme
Court of Alaska looked to Katz v. United States for guidance. In Katz, the United
States Supreme Court reasoned that “[o]ne who occupies [the phone booth],
shuts the door behind him, and pays the toll that permits him to place a call is
surely entitled to assume that the words he utters into the mouthpiece will not be
broadcast to the world.”
25
Although the facts of Glass more closely paralleled
those of White than the facts of Katz, the Supreme Court of Alaska declined to
follow White because White was not “a clear-cut agreement by any majority of
the justices.”
26
In addition, the Supreme Court of Alaska pointed out that because
there were eight monitored conversations in White, “based on an affidavit of the
informant as to earlier non-monitored conversations, a warrant was
obtainable.”
27
After reviewing Katz, the Supreme Court of Alaska applied the two-prong test
of Justice Harlan’s concurring opinion and stated, “[w]e believe that one who
20
ALASKA CONST. art. I, § 22.
21
State v. Glass, 583 P.2d 872, 874–75 (Alaska 1978).
22
Id. at 874.
23
Id.
24
Id. at 879.
25
Katz v. United States, 389 U.S. 347, 352 (1967).
26
Glass, 583 P.2d at 876.
27
Id. at 880–81.
2020] Privacy, Eavesdropping, and Wiretapping 11
engages in a private conversation is similarly entitled to assume that his words
will not be broadcast or recorded absent his consent or a warrant.”
28
The court
reasoned that it would not have been too onerous for law enforcement officers
to have obtained a warrant prior to recording Glass’ conversation with the
informant.
29
The court concluded that “Alaska’s Constitution mandates that its
people be free from invasions of privacy by means of surreptitious monitoring
of conversations.”
30
Following Glass, the parameters of the Alaska Constitution’s protection
against secret recordings was unclear. The privacy protection was fleshed out to
some extent in 1984 in City and Borough of Juneau v. Quinto and in 2001 in
Cowles v. State.
31
In 1984, in Quinto, a police officer taped his conversation with Quinto who
was suspected of driving drunk.
32
The officer made the recording by using a
small tape recorder attached to the officer’s belt.
33
The officer began taping as
he approached Quinto and the taping continued throughout Quinto’s arrest.
34
The court noted that even though Quinto did not know that the conversation was
being taped, he should have known that he was speaking with a police officer
because the officer was in uniform.
35
The Supreme Court of Alaska considered the circumstances of the vehicle
stop: “Lewkowski stopped Quinto based upon a reasonable and articulable
suspicion that Quinto was driving while intoxicated. Thus, the stop was lawful.
Quinto knew, or reasonably should have known, that he was speaking to a police
officer, since Lewkowski was in full uniform.”
36
The court added, “[a]lso, it
should have been clear to Quinto that Lewkowski was performing his official
duties throughout the period covered by the recording.”
37
The court concluded
that the recording did not violate the privacy provision of the Alaska
Constitution: “Under these circumstances, we hold that Quinto’s expectation of
privacy, i.e. his assumed expectation that his conversation with Lewkowski
would not be recorded, is not an expectation which society is willing to accept
as reasonable.”
38
The court recognized that the privacy provision of the Alaska Constitution
28
Id. at 875.
29
Id. at 881.
30
Id.
31
Juneau v. Quinto, 684 P.2d 127, 128 (Alaska 1984); Cowles v. State, 23 P.3d 1168
(Alaska 2001).
32
Quinto, 684 P.2d at 128.
33
Id. at 129.
34
Id.
35
Id. at 128, nn.2–4.
36
Id. at 129.
37
Id.
38
Id.
12 THE CATHOLIC UNIVERSITY [Vol. 29.1
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was designed to protect “those values and characteristics typical of and
necessary for a free society. Some of these are the sharing of thoughts and ideas,
personal trust between individuals, free expression, and individuality.”
39
The
key in Quinto was the presence of a police officer investigating drunk driving,
“[i]n such case, one’s candor and willingness to share personal confidences are
unlikely to be any more effectively chilled than they already are by the added
possibility that what is being said may be electronically recorded.”
40
In 2001, in Cowles v. State, Lindalee Cowles was suspected of stealing cash
from the University of Alaska’s box office.
41
To gather evidence on the alleged
theft, the university police installed a hidden video camera in the ceiling above
Cowles’ desk, which captured Cowles’ theft but no audio.
42
A co-worker had
reported the cash theft and an audit showed cash shortages.
43
Cowles’ desk was
visible to the public through the ticket window and there was a flow of persons
through the box office during the taping.
44
Cowles claimed that the videotaped
evidence should be suppressed because the evidence was obtained in violation
of her constitutional rights.
45
The three-justice majority of the Supreme Court of Alaska concluded that
“Cowles did not have an expectation of privacy at the time and place in question
that society should recognize as reasonable.”
46
The physical layout of the ticket
office was crucial in the decision: “[T]he University box office was not a private
office . . . . It was open to the public at the time of the videotaping. Moreover,
numerous University employees, who were in no sense co-conspirators of
Cowles, had regular access to it.”
47
In a lengthy dissent, the remaining two justices opined that the Alaska
Constitution privacy provision should have excluded the videotaped evidence
because Cowles’ expectation of privacy was reasonable: “No case law or other
authority supports the novel proposition that an employee’s fiduciary duty
should reduce her reasonable expectation of privacy from police surveillance at
her desk. . . .”
48
The dissent added: “Today’s holding dramatically restricts the
rights of Alaskans who do not occupy their own offices: It establishes that secret
video monitoring by the police should be among their reasonable
39
Id.
40
Id.
41
Cowles v. State, 23 P.3d 1168, 1170 (Alaska 2001).
42
Id.
43
Id.
44
Id.
45
Id.
46
Id. at 1175.
47
Id. at 1174.
48
Id. at 1185 (Fabe, J., dissenting).
2020] Privacy, Eavesdropping, and Wiretapping 13
expectations.”
49
B. Connecticut
The Supreme Court of Connecticut has interpreted the Connecticut
Constitution to require only one party to consent to secretly tape a telephone
conversation.
In 2015, in State v. Skok, Skok allegedly defrauded Becker, an elderly widow
of tens of thousands of dollars.
50
When her granddaughter became suspicious,
family members contacted the police who provided equipment so that Becker
could secretly tape telephone calls with Skok.
51
Skok claimed that secretly
taping Skok’s telephone conversation with Becker with one party’s consent
violated the search-and-seizure provision of the Connecticut Constitution.
52
The
Supreme Court of Connecticut held that the Connecticut Constitution did not
make the secret taping with one party’s consent unconstitutional.
53
In making
this determination, the court used a six-factor analysis,
54
but the court concluded
that Skok’s expectation of privacy was not reasonable because Skok reminded
Becker a number of times that Becker should not permit family to overhear their
conversation, indicating that Skok believed in the possibility that Becker’s
family would overhear the conversations.
55
The Connecticut statutes are unusual
in that one whose telephone conversation has been secretly taped, without the
consent of all parties, has a private right of action against the party who secretly
taped the conversation, but the secret taping was not a crime.
56
Presumably, this
is the reason that Skok tried to have the secretly taped conversation suppressed
under the state constitution rather than under state statute.
57
C. Massachusetts
The Massachusetts Constitution does not contain an explicit privacy
provision; however, in 1987, in Commonwealth v. Blood, the Supreme Judicial
49
Id.
50
State v. Skok, 122 A.3d 608, 610–11 (Conn. 2015).
51
Id. at 612.
52
Id. at 610.
53
Id.
54
Id. at 614.
55
Id. at 621.
56
Id. at 620.
57
A state statute permits a conversation to be suppressed, but only if the taping was
illegal. CONN. GEN. STAT. ANN. § 54-41m (West 2020); Another state statute makes it a
class D felony to illegally wiretap a conversation. CONN. GEN. STAT. ANN. § 53a-189;
However, the definition of wiretapping excludes recording a telephone conversation on one-
party consent. CONN. GEN. STAT. ANN. § 53a-187(a)(1).
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Court of Massachusetts held that the search-and-seizure provision of the
Massachusetts Constitution safeguards against electronic interception by an
informant secretly facilitating police officers taping conversations.
58
In Blood, Hudson was a convicted felon who agreed to act as an informant
and to wear a hidden radio transmitter so that police officers could secretly tape
conversations in which Blood and others formulated a plan to steal gold bars
from a refinery.
59
Hudson participated in three planning conversations, each of
which occurred in a private home.
60
Hudson transmitted the three conversations
to police officers who secretly taped them.
61
The prosecution used the taped
conversations at Blood’s trial, and Blood was convicted.
62
The Supreme Judicial Court of Massachusetts considered the Massachusetts
statute governing electronic surveillance against the search-and-seizure
provision of the Massachusetts Constitution.
63
The statute generally requires all-
party consent to tape a conversation.
64
An exception permits a police officer who
is a party to the conversation or has the consent of a party to the conversation to
secretly tape the conversation if the conversation concerns one of the listed
organized-crime offenses.
65
Presumably, the circumstances in Blood, like the
circumstances in a number of the cases discussed below, would have permitted
the taping under the Massachusetts statute because a party to the conversations
had given his consent to the taping to the police officers and the conversations
concerned organized crime offenses.
66
The Massachusetts court recognized how the circumstances in Blood were
similar to those in United States v. White, but the court criticized the plurality
decision in White because the decision failed to take into account the paramount
importance of “conversational liberty” and the chilling effect of a “consenting
informant.”
67
For the Massachusetts court, the liberty of conversing with friends
was vital to a free society: “For us, however, a distinction lies in the disparity
between that sense of security which is felt among trusted friends and the
feelings of hostility encountered among competitors or combatants. The sense
of security is essential to liberty of thought, speech, and association.”
68
The Massachusetts court noted that the locations of the conversations in Blood
58
Commonwealth v. Blood, 507 N.E.2d 1029, 1038 (Mass. 1987).
59
Id. at 1030.
60
Id. at 1030–31.
61
Id. at 1030.
62
Id. at 1030–31.
63
Id. at 1031–32.
64
MASS. GEN. LAWS ANN. ch. 272, § 99 at B4, B7, C1 (West 2020).
65
Id.
66
Commonwealth v. Blood, 507 N.E.2d 1029, 1030 (Mass. 1987).
67
Id. at 1035.
68
Id. at 1036.
2020] Privacy, Eavesdropping, and Wiretapping 15
were private homes, and there were no exigent circumstances involved: “Each
conversation whose recorded contents was admitted at trial had unfolded in a
person’s home, in circumstances not even remotely suggestive of any speaker’s
intent to be heard beyond the circle of known listeners.”
69
The court concluded
that the secret taping violated the search-and-seizure provision of the
Massachusetts Constitution: “As to each of those conversations, we hold that its
warrantless electronic search by surreptitious transmission and its electronic
seizure by surreptitious recording were in violation of art. 14.”
70
After Blood, it was unclear how the court’s interpretation of the search-and-
seizure provision of the Massachusetts Constitution would be applied. The
following year, in Commonwealth v. Fini, the court considered whether a
conversation taped in circumstances similar to those in Blood could be used to
impeach Fini’s testimony.
71
In disallowing the use of the secretly taped
conversation for impeachment purposes, the court emphasized the value of not
permitting the prosecution to use the unconstitutionally-obtained conversation
for any purpose: “Given the magnitude of the unconstitutional intrusion
accomplished by electronic eavesdropping in and about a private home, . . . we
conclude that half measures of deterrence are not enough.”
72
In 1989, in Commonwealth v. Panetti, the Supreme Judicial Court of
Massachusetts extended Blood to apply to a crawl space underneath Panetti’s
apartment.
73
In Panetti, the police chief, sanctioned by the landlord to be in the
crawl space, listened to Panetti negotiate illegal drug sales for more than two
hours.
74
The police chief used the eavesdropped conversations to obtain a
warrant, which led to Panetti’s conviction. Panetti appealed the denial of his
motion to suppress the overheard conversations.
75
The task of the Massachusetts court was to determine if Panetti’s claimed
expectation of privacy was reasonable.
76
The court distinguished an adjacent
motel or hotel room or apartment from the Panetti crawl space: “Society should
honor the privacy interests that apartment dwellers and condominium owners
have in being free from warrantless eavesdropping by police who have
infiltrated crawl spaces and other areas to which neither the public nor any other
occupant of the multiple dwelling has access.”
77
The court concluded that
Panetti’s expectation of privacy was reasonable and the police chief’s
69
Id. at 1038.
70
Id.
71
Commonwealth v. Fini, 531 N.E.2d 570, 571 (Mass. 1988).
72
Id. at 573–74.
73
Commonwealth v. Panetti, 547 N.E.2d 46, 48 (Mass. 1989).
74
Id. at 46.
75
Id.
76
Id. at 46–47.
77
Id. at 48.
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eavesdropping on over two hours of conversations did violate the search-and-
seizure provision of the Massachusetts Constitution.
78
In Commonwealth v. Price, undercover police officers arranged a sting
operation in a local motel room in which Price offered to purchase a large
quantity of marijuana.
79
Massachusetts State troopers, who were in the adjoining
motel room, secretly taped the transaction.
80
The officers had previously
obtained a search warrant, although not the type required by the Massachusetts
statute regulating electronic surveillance.
81
Price challenged the admissibility of the taped conversations under the search-
and-seizure provisions of the Massachusetts Constitution and United States
Constitution.
82
Standing matters aside, the crucial question for the Supreme
Judicial Court of Massachusetts was whether Price had an expectation of privacy
that was reasonable in the motel room in which the taped conversations
transpired.
83
The court determined that Price had an expectation of privacy, but
the expectation was not reasonable.
84
The Massachusetts court distinguished the circumstances of the Price taping,
in a motel room with strangers, from the secret taping in Blood, which occurred
in private homes with known associates.
85
In Blood, Blood previously knew the
persons with whom he was meeting. Unlike Price, who had not previously met
a number of the individuals at the meeting: “[Price] and his associates were
engaged in negotiating a major business transaction with people whom he had
just met, and whom his associates had first met the day before.”
86
The location
in Price was much different than the private homes in which the secretly taped
conversations occurred in Blood.
87
In Price, the location of the secretly taped
conversations was “a motel room that was not registered in [Price’s] name, but
rather in the name of someone about whom he knew almost nothing.”
88
The
Massachusetts court summarized Price’s activities: “He engaged in an arm’s
length business negotiation with strangers in a place over which he had neither
control nor a right to control and which had been selected by the strangers.”
89
Interestingly enough, Chief Justice Llacos, the author of the decision in Blood,
78
Id.
79
Commonwealth v. Price, 562 N.E.2d 1355, 1356 (Mass. 1990).
80
Id.
81
Id. at 1357.
82
Id. at 1357–58.
83
Id.
84
Id. at 1358.
85
Id.
86
Id.
87
Id.
88
Id.
89
Id.
2020] Privacy, Eavesdropping, and Wiretapping 17
dissented from the Price decision.
90
One concern was with the majority’s
analysis of a suspect’s standing to enforce privacy rights under the
Massachusetts Constitution: “The analysis adopted by the court . . . could be
applied just as easily to deny standing to challenge secret videotapes of any
number of legal activities undertaken by citizens of this Commonwealth each
day.”
91
Another concern of the dissent was that “the court’s opinion will
encourage the police to engage in surreptitious videotaping without a warrant
specifically authorizing such activity . . . thereby diminishing the privacy rights
of the people of this Commonwealth.”
92
In Commonwealth v. Eason, two state troopers were investigating an
apartment invasion.
93
The informant was the woman with whom Eason had been
living at the time of the incident.
94
The troopers asked the informant to call
Eason. The troopers were able to persuade her to call Eason.
95
The informant
reluctantly made two calls to Eason in his home, which the troopers listened to
through a telephone extension and secretly taped.
96
The Supreme Judicial Court
of Massachusetts decided that Eason’s claimed expectation of privacy was not
reasonable under the search-and-seizure provision of the Massachusetts
Constitution:
97
“Any expectation of privacy in a telephone conversation is not
objectively reasonable, because a person is not reasonably entitled to assume
that no one is listening in on an extension telephone.”
98
In Commonwealth v. Rodriguez, the United States Customs Service alerted
the state police that it had detected a significant amount of cocaine in a package
that had come from Colombia and was addressed to Pedro Tirado.
99
After the
package was delivered, police officers operating under a search warrant broke
down Tirado’s door.
100
Tirado claimed that the package belonged to Rodriguez
who had offered Tirado $400 for Tirado to accept the package on Rodriguez’
behalf.
101
Tirado telephoned Rodriguez as instructed, with a police officer
listening to Tirado’s end of the conversation.
102
By the time Rodriguez arrived
to collect the package, a police officer had equipped Tirado with a hidden
90
Id. at 1360.
91
Id. (Liacos, J., dissenting).
92
Id.
93
Commonwealth v. Eason, 694 N.E.2d 1264, 1265 (Mass. 1998).
94
Id.
95
Id.
96
Commonwealth v. Eason, 681 N.E.2d 863, 864 (Mass. App. Ct. 1997), rev’d, 694
N.E.2d 1264 (Mass. 1998).
97
Eason, 694 N.E.2d at 1268.
98
Id.
99
Commonwealth v. Rodriguez, 877 N.E.2d 1274, 1276–77 (Mass. 2007).
100
Id.
101
Id. at 1277.
102
Id.
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monitoring and taping device, which transmitted the conversation between
Tirado and Rodriguez to Trooper Colon located in a vehicle outside Tirado’s
apartment.
103
Rodriguez claimed that Trooper Colon’s trial testimony about the transmitted
conversation between Tirado and Rodriguez violated the search-and-seizure
provision of the Massachusetts Constitution.
104
The Massachusetts court
disagreed: “We determine that probable cause and exigent circumstances
justified the warrantless interception of the conversation, and there was thus no
violation of art. 14.”
105
The court explained “that the standards for an exigency
are strict . . . and police cannot intentionally create exigencies to evade the
warrant requirement.”
106
The court opined that the officers acted appropriately
as the events transpired quickly after their encounter with Tirado: “[T]he police
acted reasonably in the course of their investigation and, given the unexpected
turn of events, had no opportunity to obtain a warrant.”
107
D. Montana
The Montana Constitution contains an explicit privacy provision, as well as a
search-and- seizure provision.
108
The Supreme Court of Montana has not been
consistent in its interpretation of whether the Montana Constitution protects a
suspect against being secretly taped. In 1978, in State v. Brackman,
109
the court
concluded that the Montana Constitution did protect a suspect from being
secretly taped by an informant. However, in 1988, in State v. Brown, the court
overruled Brackman.
110
Twenty years later, the Supreme Court of Montana
overruled Brown in State v. Goetz.
111
Four years later, the Supreme Court of
Montana expanded its interpretation of the Montana Constitution to protect a
telephone conversation from being secretly taped in State v. Allen.
112
With Goetz
and Allen, the Montana Constitution provides fairly broad protection for face-
to-face and telephone conversations.
113
103
Id.
104
Id. at 1278.
105
Id. at 1276.
106
Id. at 1279.
107
Id.
108
MONT. CONST. art. II, § 11.
109
State v. Brackman, 582 P.2d 1216, 1222 (Mont. 1978), overruled by State v. Brown,
755 P.2d 1364 (Mont. 1988).
110
State v. Brown, 755 P.2d 1364, 1369 (Mont. 1988), overruled by State v. Goetz, 191
P.3d 489 (Mont. 2008).
111
State v. Goetz, 191 P.3d 489, 497 (Mont. 2008).
112
State v. Allen, 241 P.3d 1045, 1049, 1061 (Mont. 2010).
113
Goetz, 191 P.3d at 517; Allen, 241 P.3d at 1061.
2020] Privacy, Eavesdropping, and Wiretapping 19
In 2008, in State v. Goetz, the Supreme Court of Montana considered the
applicability of the Montana Constitution to an informant wearing a transmitter
who allegedly purchased illegal drugs from Goetz in Goetz’s home while police
detectives were secretly taping the conversation.
114
The other case that was
consolidated with Goetz involved Hamper as the suspect.
115
An informant
allegedly made two illegal drug purchases from Hamper, one in a vehicle in a
parking lot and the other in Hamper’s home.
116
During each of the alleged
purchases, the informant was wearing a transmitter and detectives were secretly
taping the conversation.
117
The Montana court found that the secretly taped conversations should have
been suppressed because “[t]he electronic monitoring and recording of those
conversations without a warrant or the existence of an established exception to
the warrant requirement violated the Defendants’ rights under Article II,
Sections 10 and 11.”
118
In reaching this holding, the court first found that the
defendants did have an expectation of privacy because each conversation
occurred either in a home or in a vehicle removed from others.
119
Then the court
found that the expectation that the government would not be secretly recording
in such locations was reasonable.
120
The court found the third factor—if there is
a compelling state interest for the secret taping—was inapplicable.
121
One concurring justice thought that protection under the Montana
Constitution against informant secret taping should not be limited to a home or
vehicle.
122
A second justice concurred with the majority’s protection for a
conversation occurring in the suspect’s home but dissented from providing
protection for a conversation occurring inside a vehicle.
123
A dissenting opinion
stated that the secretly taped conversations should not be protected under the
Montana Constitution because the subject matter of conversations was business
and the transactions were with persons the suspects did not previously know:
“The public and commercial nature of the criminal enterprise at issue here—the
sale of illegal drugs to strangers—separates this case from other kinds of crimes,
even drug-related. . . .”
124
114
Goetz, 191 P.3d at 492–93.
115
Id. at 493.
116
Id.
117
Id.
118
Id. at 504.
119
Id. at 499–500.
120
Id. at 500.
121
Id. at 504.
122
Id. at 504 (Leaphart, J., specially concurring); see also id. at 519–20 (Cotter, J.,
concurring).
123
Id. at 507 (Morris, J., concurring and dissenting).
124
Id. at 512 (Rice, J., dissenting); see also id. at 519 (Warner, J., dissenting) (agreeing
with Justice Rice’s dissent).
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In 2010, in State v. Allen, the Supreme Court of Montana decided that the
Montana Constitution should protect against an informant secretly taping cell-
phone conversations between the suspect and the informant.
125
In reaching its
decision, the Montana court employed the same three-step test used in Goetz.
126
The court found that Allen had an expectation of privacy in his cell-phone
conversation under the circumstances. It ruled that society would recognize this
expectation as reasonable based on the state’s constitutional convention, and
there was no compelling state interest for the secret taping.
127
The concurring opinion would have extended the protection under the state
constitution to the informant’s testimony about the secretly taped cell-phone
conversation.
128
The opinion concurring in part and dissenting in part disagreed
with the majority that the Montana Constitution mandated the suppression of the
secretly taped cell phone conversation based on an interpretation of the history
of the state constitutional convention that differed from that of the majority.
129
In 2012, in State v. Stewart, Stewart had allegedly been sexually molesting
his daughter for eleven years.
130
After the daughter turned eighteen, she reported
the sexual molestation and began working with a local law enforcement
detective.
131
The detective secured a search warrant for the family home, where
he gathered evidence, and spoke with an older brother who corroborated the
daughter’s story.
132
The detective persuaded the daughter to call her father on
his cell phone, while he and her mother were traveling, from the home landline
telephone to which the detective had connected monitoring and taping
equipment.
133
The detective secretly taped four calls between the daughter and
father without obtaining a warrant.
134
State v. Allen was decided after Stewart was convicted, and Stewart filed a
motion for a new trial based on the use of the secretly taped telephone
conversations at trial.
135
The court applied the three-step test and found that
Stewart’s rights were violated under the Montana Constitution.
136
The court
concluded that the admission of the secretly taped telephone conversations was
125
State v. Allen, 241 P.3d 1045, 1049, 1061 (Mont. 2010).
126
Id. at 1057.
127
Id. at 1058–60.
128
Id. at 1082 (Nelson, J., concurring).
129
Id. at 1084–85 (Rice, J., concurring in part and dissenting in part).
130
State v. Stewart, 291 P.3d 1187, 1191 (Mont. 2012).
131
Id. at 1192.
132
Id.
133
Id.
134
Id.
135
Id. at 1195 (Mont. 2012); see State v. Allen, 241 P.3d 1045, 1061 (Mont. 2010).
136
Stewart, 291 P.3d at 1200–01.
2020] Privacy, Eavesdropping, and Wiretapping 21
harmless error.
137
The parties characterized the taped information both as
inculpatory and exculpatory, while Stewart’s attorney attempted to use the taped
information to impeach the daughter at trial.
138
The Montana court explained its
rationale for its harmless error conclusion: “Qualitatively, nothing on the
recordings is any more inflammatory or prejudicial than the other, admissible
evidence at trial.”
139
E. North Dakota
The Supreme Court of North Dakota has interpreted the North Dakota
Constitution to require only one-party consent to secretly tape a conversation
between the suspect and the informant in the informant’s vehicle.
In 2010, in State v. Loh, the suspect claimed that the search-and-seizure
provision of the North Dakota Constitution should be interpreted to protect his
conversations with an informant in the informant’s car from being transmitted
and secretly taped by police officers monitoring the conversations.
140
The
Supreme Court of North Dakota stated, “We are not persuaded that our state
constitution was violated by law enforcement’s warrantless electronic
monitoring of Loh’s face-to-face conversations with the confidential informant
when the conversations and drug transactions occurred in the informant’s car
and the informant consented to the police’s electronic monitoring.”
141
Loh
suggested that the North Dakota court follow Montana’s lead in Goetz, in which
the Supreme Court of Montana interpreted the Montana Constitution to protect
a suspect against secret taping, but the North Dakota court declined to do so.
142
The North Dakota court noted that the Montana Constitution contains an explicit
right to privacy and, while some states protect privacy similarly to the protection
afforded by Montana, most states follow the U.S. Supreme Court in White.
143
F. Pennsylvania
The Pennsylvania Constitution does not contain an explicit privacy provision,
but in 1994, in Commonwealth v. Brion, the Supreme Court of Pennsylvania
interpreted the search-and-seizure provision of the Pennsylvania Constitution to
safeguard a conversation against electronic interception where an informant
wearing a radio transmitter met with a suspect in the suspect’s home and
137
Id. at 1201–03.
138
Id. at 1203.
139
Id.
140
State v. Loh, 780 N.W.2d 719, 720 (N.D. 2010).
141
Id. at 724.
142
Id. at 723.
143
Id.
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transmitted the conversation to police officers who were secretly recording.
144
Pennsylvania is an all-party consent state but, at the time Brion was decided, the
eavesdropping statutes permitted secret taping, with the consent of one party, if
an officer was a party to the conversation or a party to the conversation
consented to the officer secretly taping the conversation.
145
The Pennsylvania court found that Brion differed from earlier cases because
of “the sanctity of one’s home.”
146
The court stated, “We hold that an individual
can reasonably expect that his right to privacy will not be violated in his home
through the use of any electronic surveillance.”
147
Thus, the search-and-seizure
provision of the Pennsylvania Constitution would require a warrant prior to
secret taping in the suspect’s home.
148
The court ruled that, because there was
no indication that Brion’s expectation of privacy was not reasonable, the secretly
taped conversation should have been suppressed.
149
In addition, the court found
that “there is no good faith exception to the exclusionary rule.”
150
In Commonwealth v. Rekasie, the issue before the Supreme Court of
Pennsylvania was whether the search-and-seizure provision of the Pennsylvania
Constitution should be interpreted to require a probable cause determination by
a judge prior to the police secretly taping a telephone conversation that an
informant made from the police station to Rekasie in his home.
151
Prior to the
conversation, the Deputy Attorney General authorized the informant to permit
his telephone conversations with Rekasie and others to be secretly taped, with
the authorization done in accordance with the requirement of the Pennsylvania
statute.
152
The Pennsylvania court distinguished a face-to-face conversation
from a telephone conversation: “A telephone call received by or placed to
another is readily subject to numerous means of intrusion at the other end of the
call, all without the knowledge of the individual on the call.”
153
The court thus
determined that a telephone conversation could be treated differently than a face-
to-face conversation: “Based upon these realities of telephonic
144
Commonwealth v. Brion, 652 A.2d 287, 287 (Pa. 1994).
145
Id. at 288. The statute has since been amended to permit secret taping in very limited
situations, such as on prior authorization, in the prosecution for harm done to an officer, and
on court order. The portion of the statute requiring a court order is for a secret taping in the
suspect’s home. There is an exception if there is probable cause and exigent circumstances.
See 18 PA. STAT. AND CONS. STAT. ANN. § 5703 (West 2020), the pertinent provisions of
which are included in Appendix C.
146
Brion, 652 A.2d at 289.
147
Id.
148
Id.
149
Id.
150
Id. at 290.
151
Commonwealth v. Rekasie, 778 A.2d 624, 625–26 (Pa. 2001).
152
Id.
153
Id. at 631.
2020] Privacy, Eavesdropping, and Wiretapping 23
communication, . . . we hold that Rekasie did not harbor an expectation of
privacy in his telephone conversation with Tubridy that society is willing to
recognize as reasonable.”
154
The two dissenting opinions questioned that Rekasie should be decided
differently from Brion, given that Rekasie was in his home when he spoke with
the informant.
155
The first dissenting opinion stated: “The majority has
authorized the government to seize our words as spoken to another on a
telephone in our own homes, requiring nothing more than a willing participant
to place the call.”
156
The second dissenting opinion saw the majority’s opinion
as one step farther along a slippery slope: “Given the ever-increasing
technological means for eavesdropping into private affairs, it appears, under the
majority’s rationale, that it is only a matter of time before there is no privacy
anywhere or in anything.”
157
In Commonwealth v. Dunnavent, the Supreme Court of Pennsylvania, being
evenly divided, affirmed per curiam the lower court decisions.
158
In Dunnavent,
a confident informant wearing a hidden, soundless video device, was sent to
make an illegal drug purchase from Dunnavent on a street corner.
159
Dunnavent
took the informant to Dunnavent’s home where the informant was invited inside,
and the informant made the drug purchase.
160
The trial court suppressed the
videotape information, and the intermediate appellate court affirmed.
161
In the Supreme Court of Pennsylvania, there were two opinions in support of
affirmance and two opinions in support of reversal. The first opinion in support
of affirmance acknowledged the argument for reversal was that “the confidential
informant was not sent by the police into the home, but instead was unexpectedly
invited into the home.”
162
Therefore, “unless and until Brion is overruled,
individuals in Appellee’s position are entitled to suppression of secretly made
video recordings capturing events transpiring within the confines of their home,
regardless of whether the police originally expected and/or intended that those
events would occur outside the residence.”
163
The second opinion in favor of
affirmance emphasized the home location to be the “critical factor” in reaching
a conclusion that the videotaping was a violation of the state constitution.
164
In
addition, “the nature of the government sanctioned activity at issue here—
154
Id.
155
Id. at 635 (Zappala, J., dissenting).
156
Id.
157
Id. at 638 (Flaherty, J., dissenting).
158
Commonwealth v. Dunnavent, 107 A.3d 29, 30 (Pa. 2014).
159
Id. at 31 (Saylor, J., in support of affirmance).
160
Id.
161
Id. at 32–33 (Castille, C.J., in support of reversal).
162
Id. at 30 (Saylor, J., in support of affirmance).
163
Id. at 31.
164
Id. (Todd, J., in support of affirmance).
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videotaping—to pose an even greater risk of unjustified invasion of the right of
privacy than the audiotaping at issue in Brion.”
165
The first opinion in support of reversal found that “this case is properly
controlled by . . . the deliberate nature of police conduct.”
166
The opinion
concluded that “given the exigent circumstances and given that there was no
underlying unlawful governmental conduct, such as ‘sending’ a CI into a
citizen’s home for the purpose of recording a conversation, no constitutional
violation occurred.”
167
The second opinion in support of reversal recognized that
police officers should be on a par with suspects in the use of technology: “Just
as the criminal element recognize the importance of and take advantage of
technological advances, so must law enforcement be permitted to take advantage
of technological advances in meeting its responsibilities under the law.”
168
The
dissenting justice would not have Brion control where there is an invitation by
the suspect: “The expectation of privacy is lost when the suspect voluntarily
exposes his illicit activities regardless of where it occurs and regardless if the
police deliberately sent the informant to the home or not.”
169
G. Vermont
Vermont is the sole state without an eavesdropping or wiretapping statute,
and the Vermont Constitution does not contain an explicit right to privacy. The
Vermont case that was most like Glass, Blood, and Brion was State v. Blow.
170
In 1991, in Blow, an informant volunteered to wear a radio transmitter and
purchase illegal drugs from Blow in Blow’s home.
171
On the two occasions, on
which the informant completed the purchase in Blow’s home, a police detective
monitored the radio transmissions and secretly taped the conversations.
172
Blow claimed that the secret taping violated the search-and-seizure provision
of the Vermont Constitution.
173
In analyzing Blow’s claim, the Supreme Court
of Vermont employed the Katz two-step reasonable expectation of privacy
test.
174
The Vermont court agreed with Blow and held “that warrantless
electronic participant monitoring conducted in a home offends the core values
165
Id. at 32.
166
Id. at 50 (Castille, C.J., in support of reversal).
167
Id. at 51.
168
Id. at 52 (Stevens, J., in support of reversal).
169
Id.
170
See State v. Blow, 602 A.2d 552, 556 (Vt. 1991) (highlighting the similarities
between this case, State v. Glass, and Commonwealth v. Blood).
171
Id. at 553.
172
Id.
173
Id. at 555.
174
Id.
2020] Privacy, Eavesdropping, and Wiretapping 25
of Article 11 [the search-and-seizure provision of the Vermont Constitution].”
175
The court added: “Accordingly, where the State uses an agent to enter a home
for the purposes of eliciting and electronically transmitting evidence from an
occupant of the home, it is the burden of the State to obtain a warrant upon
probable cause prior to conducting that search.”
176
In 1991, in State v. Brooks, the Supreme Court of Vermont distinguished
Brooks from Blow because the secretly taped conversation in Brooks occurred
in a parking lot rather than in the suspect’s home.
177
In Brooks, an informant
agreed to cooperate with the police after being arrested.
178
The informant called
Brooks when Brooks was in his home, and they agreed to meet in a shopping
center parking lot.
179
During the telephone conversation, Brooks expressed some
suspicion that the telephone call might be secretly taped, which it was.
180
In the
parking lot, Brooks and the informant remained in their vehicles as they spoke
through open windows.
181
The informant used a hidden radio transmitter to
convey the conversation to police officers taping the conversation a short
distance away in another vehicle.
182
Brooks incriminated himself in the
discussion, and the police used that information to obtain a search warrant for
Brooks’ home and vehicle.
183
The Supreme Court of Vermont used the Katz two-step test in reviewing the
trial court’s denial of Brooks’ motion to suppress the secretly taped
conversations.
184
The Vermont court of last resort found that Brooks’ claimed
expectation of privacy was not reasonable: “Applying these guidelines to the
facts of this case, we find that defendant, regardless of what he actually expected,
did not enjoy a reasonable expectation of privacy in a public parking lot. In that
setting, conversations are subject to the eyes and ears of passersby.”
185
The court
added, “The distinction between the reasonable expectation of privacy within
the home and outside of it is well-grounded in the law and in our culture.”
186
The
court recognized that the use of informants was an undesirable one: “The
widespread and unrestricted use of government informants is surely one of the
basic characteristics of a totalitarian state.”
187
However, the court accepted the
175
Id. at 556.
176
Id.
177
State v. Brooks, 601 A.2d 963, 965 (Vt. 1991).
178
Id. at 963.
179
Id.
180
Id.
181
Id.
182
Id.
183
Id.
184
Id. at 964 (citing Katz v. United States, 389 U.S. 347, 361) (Harland, J., concurring)).
185
Id.
186
Id.
187
Id. at 965.
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use of informants as the price of safeguarding society.
188
The dissent in Brooks was three times as long as the majority opinion.
189
The
most salient point of the dissent drew attention to the fact that Brooks was
originally in his home for the telephone conversation.
190
The police could use
the Brooks decision to lure the suspect outside the home and then secretly record
an incriminating conversation without the bother of obtaining a warrant.
191
Justice Morse expresses in his dissent: “It is no small irony that the suspect in
this case was coaxed from his house by a telephone call to meet and talk in a
shopping center parking lot. The police may now monitor without limitation the
words of any person it considers suspect, dangerous, undesirable, or
unpopular.”
192
In 2002 in State v. Geraw, the Supreme Court of Vermont interpreted the
search-and- seizure provision of the Vermont Constitution to protect a
conversation in Geraw’s home from being secretly recorded by two officers.
193
In finding that Geraw’s secretly taped conversation was correctly suppressed,
the Vermont court rejected the State’s argument that the fact that Geraw knew
he was speaking with police officers lowered Geraw’s expectation of privacy.
194
Knowingly speaking with police officers “is a far different expectation,
however, from knowingly exposing every word and phrase one speaks, every
inflection or laugh or aside one utters, to the scrutiny of the world at large.”
195
The court emphasized that there was an underhanded reason that the officers
failed to disclose that the conversation was being taped.
196
The lengthy dissent distinguished Geraw from Blow because Geraw invited
the persons he knew to be officers into his home when he knew that they were
investigating Geraw’s involvement in the serious criminal offense of child
sexual molestation:
197
“Vermonters would not find reasonable a suspect’s
expectations that his responses to police questions about possible involvement
in a crime are private.”
198
188
Id.
189
Id. at 965–72 (Morse, J., dissenting).
190
Id. at 965–66.
191
Id. at 965.
192
Id.
193
State v. Geraw, 795 A.2d 1219, 1220 (Vt. 2002).
194
Id. at 1224.
195
Id.
196
Id. at 1225.
197
Id. at 1229–30 (Skoglund, J., dissenting).
198
Id. at 1233.
2020] Privacy, Eavesdropping, and Wiretapping 27
H. West Virginia
The West Virginia Constitution does not contain an explicit privacy
provision, but in 2007, in State v. Mullens,
199
the Supreme Court of Appeals of
West Virginia interpreted the search-and-seizure provision of the West Virginia
Constitution to safeguard a conversation against electronic interception where
an informant wearing a device with audio-and-video capability met with a
suspect, and the suspect’s wife, in the suspect’s home and secretly taped their
conversation. In doing so, the court overruled a prior 1986 decision.
200
In
Mullens, the court recognized its “long history of protecting the sanctity of the
home from warrantless searches and seizures.”
201
The state legislation
permitting secret taping through one-party consent would still apply outside the
home: “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.”
202
Two justices dissented from Mullens and each wrote a separate dissenting
opinion.
203
Justice Benjamin was troubled by the majority overruling its prior
opinion in State v. Thompson without what the justice thought to be adequate
reasoning.
204
Justice Benjamin pointed out that the recording equipment used in
Mullens was not in any way sophisticated, but the advantage of recording a
conversation is that it produces reliable evidence for use in a criminal case, and
the informant was invited into the Mullens home.
205
In his dissent, Justice
Maynard also criticized the majority’s decision for less than “sound
reasoning.”
206
He observed that, under the court’s ruling, an informant can enter
the suspect’s home and gather evidence by taking notes of a conversation with
the suspect; however, an informant is precluded from secretly taping that same
conversation, with “the likely effect . . . to make legitimate police investigations
of criminal suspects more time-consuming, complex, and difficult.”
207
In response to Mullens, the West Virginia Legislature passed the Electronic
Interception of Person’s Conduct or Oral Communications in the Home by Law
Enforcement Act (the “Electronic Interception Act”).
208
The Electronic
199
State v. Mullens, 650 S.E.2d 169, 171, 190 (W. Va. 2007).
200
Id. at 190.
201
Id. at 189.
202
Id. at 190.
203
Id. at 191 (Benjamin, J., dissenting); see also id. at 214 (Maynard, J., dissenting).
204
Id. at 191–92 (Benjamin, J., dissenting); see also State v. Thompson, 342 S.E.2d 268
(W. Va. 1986), overruled by State v. Mullens, 650 S.E.2d 169, 190 (W. Va. 2007).
205
Mullens, 650 S.E.2d at 193–94, 196.
206
Id. at 216 (Maynard, J., dissenting).
207
Id.
208
W. VA. CODE ANN. §§ 62-1F-1 to -9 (West 2020).
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Interception Act generally requires law enforcement to obtain a court order prior
to secretly taping a suspect in the suspect’s home, but law enforcement can
obtain a retroactive court order if there are exigent circumstances.
209
In 2014, in State ex rel State v. Burnside, the Supreme Court of Appeals of
West Virginia had the occasion to review the portion of the West Virginia statute
that protects an attorney-client conversation against being secretly taped.
210
In
Burnside, a confidential informant drove Hardison from his home to his law
office where the informant allegedly purchased cocaine from the attorney.
211
The informant secretly taped their conversations in the informant’s vehicle and
in Hardison’s law office. At the time, the informant was an acquaintance and
client of Hardison.
212
The trial court suppressed the secretly taped conversations
because they were considered attorney-client communication.
213
On appeal, the Supreme Court of Appeals of West Virginia held that the
statute “is intended to prevent attorney-client privileged communications from
being monitored by wiretapping or through electronic surveillance.”
214
The West
Virginia court found that “Lawyer Hardison was not acting in his capacity as a
lawyer during his April 6, 2012, conversation with the confidential
informant.”
215
The court concluded in Burnside that the secretly taped
conversations between the informant and the suspect should not have been
suppressed.
216
The court added: “The confidential informant was not seeking
legal advice from Lawyer Hardison; he was allegedly only seeking to purchase
cocaine from him. Further, the confidential informant, having agreed to wear a
recording device, did not intend that this conversation be kept confidential.”
217
Burnside garnered two concurring opinions and a dissenting opinion.
218
Both
concurring opinions supported the conclusion that the majority opinion struck
the proper balance of safeguarding the attorney-client privilege and protecting
the public against criminal activity.
219
The dissent was more protective of law-
office conversation: “In permitting electronically intercepted non attorney-client
communications emanating from a law office of any attorney licensed to practice
law in this state, the majority has placed the sanctity of the attorney-client
209
Id. at §§ 62-1F-2, -9.
210
State ex rel. State v. Burnside, 757 S.E.2d 803, 804 (W. Va. 2014); W. VA. CODE
ANN. § 62-1D-9(d) (West 2020).
211
Burnside, 757 S.E.2d at 805.
212
Id.
213
Id. at 804.
214
Id. at 811.
215
Id. at 812.
216
Id.
217
Id.
218
Id. at 812, 814–15.
219
Id. at 812 (Benjamin, J., concurring); see also id. at 814 (Loughry, J., concurring).
2020] Privacy, Eavesdropping, and Wiretapping 29
relationship on a dangerous slope.”
220
In 2020, in State v. Howells, the Supreme Court of Appeals of West Virginia
considered the exigent circumstances exception.
221
Two undercover detectives
looking for a confidential informant found out that the informant was staying at
Howells’ home.
222
They knocked at Howells’ front door inquiring about the
informant and indicating that the informant was their usual illegal drug
supplier.
223
While speaking on the front porch, Howells offered to sell them
drugs if they could return a little later.
224
The detectives returned a short while
later after one of the detectives equipped himself with a hidden taping device.
225
The detectives returned, Howells invited them into his home, and the detectives
purchased drugs from Howells.
226
One of the detectives obtained a retroactive
court order prior to their next meeting with Howells in a shopping center parking
lot.
227
The detectives purchased drugs from Howells while they were in Howells’
vehicle in the parking lot.
228
Both the second meeting in Howells’ home and the
meeting in his vehicle were secretly taped.
229
On appeal, Howells claimed that
the conversation and other evidence relating to it should have been suppressed
because the conversation was secretly taped without a court order.
230
The West Virginia court found that the sequence of events did amount to
exigent circumstances: “The Detectives believed that the drug transaction would
occur on [Howells’] porch and therefore they did not initially seek a court order
to wear the audio/video recorder.”
231
Then the circumstances quickly changed:
“Once [Howells] invited the Detectives into his home, it was simply not practical
for them to abruptly tell [Howells] they had to go, but they would be back.”
232
One justice dissented, pointing out that the serious deficiencies in the court
order did not comply with the statutory requirements for a retroactive court
order.
233
The dissent opined that the detectives should have dispensed with
secretly taping the in-home drug purchase, and they could have still testified
concerning the event.
234
The dissent concluded that the majority’s “strained
220
Id. at 818 (Sims, J., dissenting).
221
State v. Howells, 842 S.E.2d 205, 209 (W. Va. 2020).
222
Id. at 207.
223
Id.
224
Id.
225
Id.
226
Id.
227
Id.
228
Id.
229
Id.
230
Id. at 207–08.
231
Id. at 206.
232
Id.
233
Id. at 212 (Workman, J., dissenting).
234
Id. at 213–14.
30 THE CATHOLIC UNIVERSITY [Vol. 29.1
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analysis has cast a troubling cloud over our citizens’ right to be free of unlawful
interception of their in-home communications.”
235
I. Wyoming
The Supreme Court of Wyoming has interpreted the Wyoming Constitution
to require only one-party consent to secretly tape a conversation between the
suspect, an undercover agent, and informants in the suspect’s home.
236
In 1999, in Almada v. State, Almada was allegedly selling cocaine when he
invited an undercover agent, two informants, and a buyer into his home.
237
The
agent and one of the informants were wearing hidden devices with taping and
transmitting capability and after the agent made a purchase, Almada was
arrested.
238
Almada claimed that the secretly taped conversation should have
been suppressed.
239
The Supreme Court of Wyoming first considered Almada’s claims that a law
enforcement officer could not qualify as a participant who could consent to the
secret taping and that a court order is required.
240
The Wyoming court held that
a law enforcement officer may provide the one-party consent necessary and,
with the one-party consent, a court order is not required.
241
Next the court considered whether the Wyoming eavesdropping statutes
violated the search-and-seizure provision of the Wyoming Constitution.
242
The
court decided, “We hold participant monitoring without a warrant or court order
pursuant to the Act does not violate Art. 1, § 4 of the Wyoming [Constitution,]”
finding that “Almada had no reasonable expectation of privacy which might
implicate constitutional protection in this case.”
243
The court reasoned, “The
comprehensive nature of the Act and its many safeguards couched in
constitutional terms suggest that compliance with the Act weighs heavily in
favor of finding the interception constitutional on independent state grounds.”
244
The court added, “The significant limitations placed on the interception of
communications by peace officers clearly signifies a legislative intent to draw a
balance between the interest of the state in protecting its citizens from crime and
235
Id. at 216.
236
Almada v. State, 994 P.2d 299, 311 (Wyo. 1999).
237
Id. at 302.
238
Id.
239
Id.
240
Id. at 307.
241
Id.
242
Id. at 307–08.
243
Id. at 311.
244
Id.
2020] Privacy, Eavesdropping, and Wiretapping 31
its interest in preserving individual freedom from overly intrusive governmental
invasion.”
245
III. STATE CONSTITUTIONAL PRIVACY PROVISIONS AND STATE
STATUTES
The preceding section explained that case law in six states protects the suspect
from being secretly taped in the suspect’s home where the taping was facilitated
by an informant who spoke to the suspect while in the suspect’s home. Only
Alaska and Montana drew this protection from an explicit privacy provision in
the state constitution. Courts in Massachusetts, Pennsylvania, West Virginia,
and Vermont interpreted a state constitutional search-and-seizure provision to
provide this protection against secret taping in the home. Of the six states,
Massachusetts, Montana, and Pennsylvania are all-party consent states.
246
Dozens of state constitutions contain explicit privacy provisions.
247
These
states are Alaska, Arizona, California, Florida, Hawaii, Illinois, Louisiana,
Montana, New Hampshire, New York, South Carolina, and Washington.
248
The
state constitutions of California, Florida, and Hawaii each have two explicit
privacy references, with one found in the search-and-seizure provision and the
other in a separate privacy provision.
249
New York limits its constitutional
privacy protection to telephone conversations.
250
The existence of an explicit privacy provision in a state constitution does not
necessarily correspond to the statutes for the state providing more protection
against a conversation being secretly taped. Some states with an explicit
constitutional privacy provision also protect against secret taping by requiring
all-party consent, while some states do not.
Generally, state statutes follow one of two patterns for protecting a
conversation against secret taping. The majority of the states and the federal
statute require one-party consent.
251
The states requiring only one-party consent
are Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut (limited to a
face-to-face conversation), District of Columbia, Georgia, Hawaii, Idaho,
Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Minnesota, Mississippi,
Missouri, Nebraska, Nevada (limited to a face-to-face conversation), New
245
Id.
246
Christina Pici, Making Sense of Pennsylvania’s Two-Party Consent Law, JURIS MAG.
(Dec. 1, 2019), https://sites.law.duq.edu/juris/2019/12/01/making-sense-of-pennsylvanias-
two-party-consent-law/.
247
See Appendix A.
248
See Appendix A.
249
See Appendix A.
250
See Appendix A.
251
See Appendix B.
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Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio,
Oklahoma, Oregon (limited to telephone conversation), Rhode Island, South
Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia,
Wisconsin, and Wyoming. A minority of the states require all-party consent.
252
These states are California,
253
Connecticut (limited to telephone conversation),
Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana,
Nevada (limited to telephone conversation), New Hampshire, Oregon (limited
to face-to-face conversation), Pennsylvania, and Washington.
254
Thus, when one compares the existence of an explicit constitutional privacy
provision with the state statutes, one finds little correlation. California, Florida,
Illinois, Montana, New Hampshire, and Washington are the six states that have
both an explicit constitutional privacy provision and all-party consent statutes.
Alaska, Arizona, Hawaii, Louisiana, New York, and South Carolina are the six
states that have an explicit constitutional privacy provision and one-party
consent statutes.
255
Various factors may be used to compare different state statutes providing
protection against secret taping.
256
One factor described above is the amount of
consent required to tape a conversation, with some states requiring one-party
consent and other states requiring all-party consent. Many state statutes contain
some type of exception permitting someone operating under color of law, such
as a police officer, to tape a conversation with one-party consent, although as
explained below, this exception varies widely. The language of statutes in a
number of states borrows from the language of the federal statutes, which a court
may find helpful in interpreting a state statute. Most states make violation of the
state statute a crime that entails a term of imprisonment and the possibility of a
fine.
257
The severity of the punishment varies widely from state to state.
258
Many
states provide a private right of action to a person whose conversation was
illegally taped. The person may be entitled to statutory damages, punitive
damages, attorney fees, costs, injunction, and declaratory relief, depending on
the state. The amount awardable in statutory damages varies widely from state
to state.
259
252
See Appendix B.
253
Several provisions of the California statutes have either been repealed or held to be
unconstitutional. See Appendix A. California statutes still require all-party consent to tape a
cellular telephone conversation. See Appendix C.
254
See Appendix C.
255
See Appendix B.
256
See Appendix B.
257
See Appendix B.
258
See Appendix B.
259
See Appendix B.
2020] Privacy, Eavesdropping, and Wiretapping 33
The federal act, often referred to as the Electronic Communications Privacy
Act,
260
requires one-party consent to secretly tape a conversation unless the
purpose of taping the conversation is to commit a crime or tort.
261
A number of
one-party consent states have this same exception that would not permit secret
taping on one-party consent if the purpose of taping the conversation is to
commit a crime or tort. These states include: Delaware,
262
District of
Columbia,
263
Hawaii,
264
Idaho (limited to a crime),
265
Iowa,
266
Louisiana,
267
Minnesota,
268
Mississippi,
269
Missouri,
270
Nebraska,
271
New Jersey,
272
North
Dakota (limited to a crime or “unlawful harm”),
273
Ohio,
274
Oklahoma (limited
to a crime),
275
Rhode Island,
276
Tennessee,
277
Texas (limited to an “unlawful
act”),
278
Utah,
279
West Virginia,
280
Wisconsin,
281
and Wyoming.
282
The federal act contains the typical color of law exemption permitting a police
officer to secretly tape a conversation where the officer is a party to the
conversation or a party to the conversation has given consent to have the
conversation secretly taped.
283
Because the federal act serves as a model, statutes
of a number of states contain a similar provision, such as: Alabama, Alaska,
Arizona, Arkansas, Colorado, Connecticut, Delaware, District of Columbia,
Florida, Georgia, Idaho, Iowa, Louisiana, Maine, Michigan, Minnesota,
Mississippi, Missouri, Nebraska, New Jersey, New Mexico, North Carolina,
North Dakota, Ohio, Oklahoma, Rhode Island, South Carolina, Tennessee,
260
See Hannah Clarisse, Wiretapping in a Wireless World: Enacting a Vermont Wiretap
Statute to Protect Privacy against Modern Technology, 43 VT. L. REV. 369, 377, 377 n.63-
66 (2018).
261
18 U.S.C.A. § 2511(2)(d) (West, Westlaw through Pub. L. No. 116-140).
262
DEL. CODE ANN. tit. 11, § 2402(c) (West 2020).
263
D.C. CODE ANN. § 23-542(b) (West 2020).
264
HAW. REV. STAT. ANN. § 803-42(b)(3)(A) (West 2019).
265
IDAHO CODE ANN. § 18-6702(2)(d), (e) (West 2020).
266
IOWA CODE ANN. § 808B.2.c. (West 2020).
267
LA. STAT. ANN. § 15:1303 (C)(4) (2019).
268
MINN. STAT. ANN. § 626A.02(subdiv.2)(d) (West 2020).
269
MISS. CODE ANN. § 41-29-531(e) (West 2020).
270
MO. ANN. STAT. § 542.402 (subdiv.2)(3) (West 2019).
271
NEB. REV. STAT. ANN. § 86-290(2)(c) (West 2020).
272
N.J. REV. STAT. ANN. § 2A:156A-4(d) (West 2020).
273
N.D. CENT. CODE ANN. § 12.1-15-02 (subdiv.3) (West 2020).
274
OHIO REV. CODE ANN. § 2933.52(B)(4) (West 2020).
275
OKLA. STAT. ANN. tit. 13, § 176.4 (West 2020).
276
R.I. GEN. LAWS ANN. § 11-35-21(c) (West 2020).
277
TENN. CODE ANN. § 39-13-601(b)(5) (West 2020).
278
TEX. PENAL CODE ANN. § 16.02(c) (West 2019).
279
UTAH CODE ANN. § 77-23a-4(7)(b) (West 2020).
280
W. VA. CODE ANN. § 62-1D-3(e) (West 2020).
281
WIS. STAT. ANN. § 968.31(2) (West 2019).
282
WYO. STAT. ANN. § 7-3-702(b) (West 2020).
283
18 U.S.C.A. § 2511(2)(c) (West, Westlaw through Pub. L. No. 116-140).
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Texas, Utah, and Wisconsin. The Montana color of law exception is quite broad
in permitting a public official to tape when performing official duties.
284
The
statutes of several states have no color of law exception, including: Indiana,
Kansas, Kentucky, New York, South Dakota, Virginia, West Virginia, and
Wyoming. As explained below, the color of law exception is limited in certain
states, including California, Illinois, Maryland, Massachusetts, Nevada, New
Hampshire, Oregon, Pennsylvania, Washington, and West Virginia.
California is a state whose color of law exception is limited to certain
enumerated crimes such as extortion, kidnapping, bribery, any felony involving
violence against the person, including, but not limited to, human trafficking,
domestic violence, or an emergency situation that involves the taking of a
hostage or the barricading of a location.
285
In addition, an exception exists for a
university police officer investigating a sexual offense.
286
Illinois limits its color of law exception to patrol cars, taser use, a hostage or
barricade situation,
287
or a kidnapping, hostage, or barricade situation with
associated danger of death or great bodily harm.
288
Maryland limits its color of law exception to the following offenses or
solicitation or conspiracy to commit the following offenses: murder, kidnapping,
rape, a sexual offense in the first or second degree, child abuse in the first or
second degree, child pornography, gambling, robbery, arson, bribery, extortion,
dealing in a controlled dangerous substance, a fraudulent insurance act, an
offense relating to destructive devices, a human trafficking offense, sexual
solicitation of a minor, an offense relating to obstructing justice, sexual abuse of
a minor, a theft scheme involving at least $10,000, abuse or neglect of a
vulnerable adult, an offense relating to Medicaid fraud, an offense involving a
firearm, or a barricade situation with a hostage.
289
Massachusetts limits its color of law exception to a situation necessary to
ensure the safety of an undercover officer or agent.
290
Nevada limits its color of law exception to a situation involving a barricade,
hostage, or explosive,
291
or an emergency situation with the consent of one
party.
292
New Hampshire limits its color of law exception to an officer carrying a radio
284
MONT. CODE ANN. § 45-8-213(2)(a)(i) (West 2019).
285
CAL. PENAL CODE §§ 633.5, .8 (West 2020).
286
Id. at § 633.02.
287
720 ILL. COMP. STAT. ANN. § 5/14-3(h), (h-10), (o) (West 2020).
288
725 ILL. COMP. STAT. ANN. § 5/108A-6 (West 2020).
289
MD. CODE ANN., CTS. & JUD. PROC. § 10-402(c)(2) (West 2020).
290
MASS. GEN. LAWS ANN. ch. 272, § 99D.1.e. (West 2020).
291
NEV. REV. STAT. ANN. § 179.463 (West 2019).
292
Id. at § 200.620.
2020] Privacy, Eavesdropping, and Wiretapping 35
transmitter when investigating any of the following offenses or a conspiracy to
commit any of the following offenses: homicide, kidnapping, gambling, theft,
corrupt practices, child sexual abuse images, computer pornography and child
exploitation, criminal conduct in violation of the securities law, criminal conduct
in violation of the security takeover disclosure laws, robbery, hindering
apprehension or prosecution, tampering with witnesses and informants,
aggravated felonious sexual assault, felonious sexual assault, escape, bail
jumping, insurance fraud, dealing in narcotic drugs, marijuana, or other
dangerous drugs, or hazardous waste violations.
293
Oregon limits its color of law exception to an officer investigating a felony
involving controlled substances; manufacture or delivery of certain drugs, or
delivery of a controlled substance to a minor; or a misdemeanor involving
prostitution or commercial sexual solicitation; a felony involving exigent
circumstances under which it is not reasonable to be able to obtain a court
order;
294
or an officer recording an incident using a police vehicle, a body
camera, or an audio-equipped taser.
295
Pennsylvania limits its color of law exception to an officer wearing a
recording device or radio transmitter meeting with a suspect to investigate harm
done to an officer, or to an officer investigating a barricade or hostage
situation.
296
Washington limits its color of law exception to an officer investigating threats
of extortion, blackmail, bodily harm, or other unlawful requests or demands or
a barricade or hostage situation when one party to the conversation consents.
297
In addition, a conversation concerning controlled substances or sexual abuse of
a minor may be secretly taped on consent of one party to protect the safety of
the consenting party.
298
The color of law exception in West Virginia is limited to exigent
circumstances concerning taping in a home with a court order required within
three business days thereafter.
299
IV. ALL-PARTY CONSENT
At first blush, one would think that it would be better for a state to provide
more privacy protection by requiring all-party consent rather than one-party
293
N.H. REV. STAT. ANN. §§ 570-A:2 II.(c), -A:7 (2020); see also State v. Kilgus, 519
A.2d 231, 239 (N.H. 1986).
294
OR. REV. STAT. ANN. § 133.726(7) (West 2020).
295
Id. at § 165.540(5)(d), (e).
296
18 PA. STAT. AND CONS. STAT. ANN. § 5704(2), (12) (West 2020).
297
WASH. REV. CODE ANN. § 9.73.030(2) (West 2020).
298
Id. § 9.73.210(1) (West 2020).
299
W. VA. CODE ANN. § 62-1F-9 (West 2020).
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consent. As alluded to earlier, there may be good reasons for secretly taping a
conversation to gather evidence. One who does so in an all-party consent state
can be subject to serious criminal penalties.
300
With the endless availability of
recording capability on one’s cell phone, someone may innocently capture a
conversation without knowing that secret taping is a crime in the particular state.
One is well aware of certain actions that are criminal in nature; however, taping
a conversation without asking for all parties to consent may not obviously be
illegal to most people, especially because only a minority of states make the
action criminal.
301
States are inconsistent in requiring one-party or all-party
consent, and one who travels may be subject to varying requirements as one
passes from state to state. In addition, the location of a party speaking on a cell
phone may be unclear or unknown, and a question may arise as to what state’s
law should apply if the cell phone conversation is interstate between one party
in a one-party consent state and the other party in an all-party consent state.
The potential problems with requiring all-party consent have caused all-party
states to interpret their statutes in a variety of ways, with a lack of consistency
from state to state.
A. California
California’s protections against wiretapping requires all-party consent for
cellular telephone conversations.
302
California permits one-party consent to
secretly tape a conversation where the conversation is related to certain
enumerated crimes such as extortion, kidnapping, bribery, any felony involving
violence against the person, including, but not limited to, human trafficking, or
domestic violence.
303
Statutory protection for face-to-face and other types of
telephone conversations has seriously been cut back by the repeal of certain
statutes and courts holding other statutes unconstitutional.
304
B. Florida
Florida is an all-party consent state, meaning that it is illegal for a party to a
face-to-face conversation or a telephone conversation to secretly tape the
300
CAL. PENAL CODE § 632 (West 2020).
301
N.Y. C.P.L.R. § 4506 (MCKINNEY 2020).
302
CAL. PENAL CODE §§ 630, 632(a), 632.5, 637.2.
303
CAL. PENAL CODE § 633.5 (West 2020).
304
See id. at §§ 630a, 630b, 631a-631e, 632a-632(4) (repealed); See also id. at §§ 631,
632 (held unconstitutional); People v. Guzman, 453 P.3d 1130 (Cal. 2019) (holding §
632(d) unconstitutional); see also People v. Algire, 165 Cal.Rptr.3d 650 (Cal. Ct. App.
2013) (holding § 631(c) unconstitutional).
2020] Privacy, Eavesdropping, and Wiretapping 37
conversation.
305
The distinction between a face-to-face conversation protected
against being taped and a telephone conversation being protected against being
taped is that the face-to-face conversation must be one in which the participants
expect privacy and the expectation of privacy is reasonable.
306
A telephone
conversation is protected without any requirement of reasonableness.
307
In State v. Inciarrano,
308
the Florida Supreme Court had difficulty deciding
the case because the murder victim secretly taped a face-to-face conversation
with the murderer in the victim’s office, a secluded location, and the
conversation was the best and only evidence of the crime.
309
In Inciarrano, the
murder victim had a tape recorder hidden in his desk that was secretly taping the
meeting between the victim and Inciarrano.
310
The tape captured the sounds of
Inciarrano allegedly shooting and killing the victim.
311
The issue before the
Florida court was “whether the tape recording made by a victim of his own
murder must be excluded from evidence pursuant to chapter 934.”
312
The Florida court held “that because Inciarrano had no reasonable expectation
of privacy, the exclusionary rule of section 934.06 does not apply.”
313
The
reasoning of the court was that Inciarrano’s expectation of privacy was not
reasonable because “Inciarrano went to the victim’s office with the intent to do
him harm.”
314
The trial court perhaps provided clearer reasoning: “[T]he Court
considered, among other factors, the quasi-public nature of the premises within
which the conversations occurred, the physical proximity and accessibility of
the premises to bystanders, and the location and visibility to the unaided eye of
the microphone used to record the conversations. . . .”
315
The Florida Supreme Court decided McDade v. State in 2014.
316
McDade was
an extremely difficult case, in that the defendant allegedly sexually abused his
305
Alex B. Lipton, Privacy Protections for Secondary Users of Communication-
Capturing Technologies, 91 N.Y.U. L. REV. 396, 411 (2016).
306
FLA. STAT. ANN. § 934.02(2) (West 2019) (“‘Oral communication’ means any oral
communication uttered by a person exhibiting an expectation that such communication is
not subject to interception under circumstances justifying such expectation . . . “).
307
“‘Wire communication’ means any aural transfer made in whole or in part through
the use of facilities for the transmission of communications by the aid of wire, cable, or
other like connection between the point of origin and the point of reception. . . .” §
934.02(1) (“‘Wire communication’ means any aural transfer made in whole or in part
through the use of facilities for the transmission of communications by the aid of wire,
cable, or other like connection between the point of origin and the point of reception. . . .”).
308
State v. Inciarrano, 473 So. 2d 1272 (Fla. 1985).
309
Id. at 1273–74.
310
Id. at 1274.
311
Id.
312
Id. at 1273–74.
313
Id. at 1276.
314
Id. at 1275–76.
315
Id. at 1274.
316
McDade v. State, 154 So. 3d 292 (Fla. 2014).
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sixteen-year-old stepdaughter for six years, and she secretly taped two
conversations when they were in his bedroom.
317
The police arrested McDade
after the stepdaughter turned the secretly taped conversations over to the
police.
318
The trial court denied McDade’s motion to suppress, and he was
convicted; the intermediate appellate court affirmed.
319
The Florida court stated the issue as: “[does] a recording of a solicitation and
confirmation of child sexual abuse [secretly] made by the child victim in the
accused’s bedroom fall within. . . [§] 934 [of the 2010] Florida statutes?”
320
The
Florida court concluded that the secretly taped conversations qualified as oral
communication, which was protected against being secretly taped, and the
conversations were inadmissible.
321
The court factually distinguished
Inciarrano and McDade on the facts.
322
The location in Inciarrano was the
murder victim’s place of business, which was open to the public:
323
“Conversely,
the recordings at issue in this case were made in McDade’s bedroom, the
recording device was hidden under the stepdaughter’s shirt, and the recordings
contain conversations between McDade and his stepdaughter.”
324
In McDade, the Florida Supreme Court invited the Florida legislature to
permit secret taping by one of the parties to a conversation to provide evidence
of a crime.
325
The Florida legislature accepted the invitation and added an
extremely narrow exception to the all-party consent requirement.
326
Florida now
permits one-party consent for a minor to secretly tape a face-to-face
conversation where the conversation is related to an unlawful sexual act or
violence.
327
Florida does have a color of law exception that would permit a party to a
conversation to secretly tape the conversation, but only if “under the direction
of an investigative or law enforcement officer” and only if “the purpose of such
interception is to obtain evidence of a criminal act.”
328
In 2017, in Tundidor v.
State, the Florida Supreme Court had occasion to determine whether the
exception applied.
329
In Tundidor, the police were investigating Randy Tundidor
317
Id. at 294.
318
Id.
319
Id. at 294–96.
320
Id. at 294 (all capitals in original quotation).
321
Id. at 297–99.
322
Id. at 298–99.
323
Id. at 298.
324
Id.
325
Id. at 299.
326
FLA. STAT. ANN. § 934.03(2)(k) (West 2019).
327
Id.
328
Id. § 934.03(2)(c).
329
Tundidor v. State, 221 So. 3d 587, 600 (Fla. 2017).
2020] Privacy, Eavesdropping, and Wiretapping 39
and his son, Junior, for murder and several other crimes that they allegedly
committed.
330
The police contacted Tundidor’s other son, Shawn.
331
Shawn,
who was afraid that he might be implicated, asked the police to let him secretly
tape a conversation with his father.
332
Shawn did so using recording equipment
the police provided and captured his father incriminating himself.
333
The Florida
court concluded that the requirements of the color of law exception were met:
334
The court found that “because the police agreed to Shawn’s suggestion of
recording his conversation with his father and helped him to do so by providing
the recording equipment and transportation, the recording was made under the
direction of the police . . . “
335
C. Illinois
Illinois makes it legal to tape a private conversation with all-party consent.
336
Illinois permits one-party consent to secretly tape a conversation where the
conversation is related to a crime against the person or immediate household.
337
D. Maryland
Maryland makes it legal to tape a conversation with all-party consent unless
the taping is a crime or tort.
338
In 2000, in Deibler v. State, Deibler had allegedly used a hidden camera with
audio capability to secretly record his friend’s aunt taking a shower.
339
The
Maryland Wiretap Law makes it illegal to willfully tape a conversation.
340
The
Court of Appeals of Maryland was tasked with statutory interpretation:
341
“[t]he
question is whether willfulness, for purposes of § 10–402(a)(1), requires
knowledge on the part of the defendant that his or her action is unlawful—that
it is prohibited by the statute.”
342
The Maryland court held that, for purposes of
330
Id. at 592–96.
331
Id. at 600.
332
Id. at 597, 600.
333
Id.
334
Id. at 600.
335
Id.
336
720 ILL. COMP. STAT. ANN. § 5/14-2(a)(1)–(2) (West 2020).
337
§ 5/14-3(i).
338
MD. CODE ANN., CTS. & JUD. PROC. § 10-402(c)(3) (West 2020).
339
Deibler v. State, 776 A.2d 657, 658–59 (Md. 2000).
340
§ 10-402(a)(1) (West 2020).
341
Deibler, 776 A.2d at 658–59.
342
Id. at 659 (The question arose in part because in 1995 the Maryland intermediate
court had interpreted the statute to require the suspect’s knowledge that the secret taping
was illegal.); see also Hawes v. Carberry, 653 A.2d 479, 483 (Md. Ct. Spec. App. 1995),
abrogated by Deibler v. State, 776 A.2d 657, 658 (Md. 2000).
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the Maryland Wiretap Law, “an interception that is not otherwise specifically
authorized is done willfully if it is done intentionally-purposely.”
343
The dissent
would have interpreted the Maryland Wiretap Law to require the suspect to
know that the suspect’s action was illegal,
344
stating “although Deibler’s conduct
was morally reprehensible, the record of his trial fails to provide evidence of the
degree of willfulness required under Maryland’s wiretap statute. . . .”
345
In 2018, in Agnew v. State, Agnew tried to make offensive use of the all-party
consent statute, claiming that the cell phone conversation he secretly taped could
not be used as evidence against him because the other party to the telephone
conversation did not consent to the taping.
346
The Court of Appeals of Maryland
concluded that the telephone conversation was properly admitted because his
claimed expectation of privacy was not reasonable.
347
The Maryland court
reasoned: “It would be . . . ludicrous to conclude that the purpose of the Wiretap
Act extended to protect a party who records their own conversation without the
consent of the other party, and then seeks to block its admission due to the
intentional failure to obtain the other person’s consent.”
348
E. Massachusetts
By its terms, the Massachusetts eavesdropping statute would apply to
criminalize the recording if it were made secretly, perhaps with the recording
device hidden, without all-party consent.
349
On occasion, a private citizen has taken to recording police officers
performing their official duties.
350
In 2018, in Martin v. Gross, individuals
seeking to make such secret recordings challenged the Massachusetts statute as
being in violation of their First Amendment rights.
351
The court agreed with the
challenge, holding “that Section 99 [the Massachusetts eavesdropping statute]
may not constitutionally prohibit the secret audio recording of government
officials, including law enforcement officials, performing their duties in public
spaces, subject to reasonable time, manner, and place restrictions.”
352
343
Deibler, 776 A.2d at 665.
344
Id. at 667–68 (Harrell, J., dissenting).
345
Id. at 668.
346
Agnew v. State, 197 A.3d 27, 28–30 (Md. 2018).
347
Id. at 35.
348
Id. at 34.
349
MASS. GEN. LAWS. ANN. ch. 272 § 99(B)(4), (C)(1) (West 2020).
350
Martin v. Gross, 340 F. Supp. 3d 87, 94 (D. Mass. 2018).
351
Id. at 93.
352
Id. at 109.
2020] Privacy, Eavesdropping, and Wiretapping 41
F. Michigan
Michigan protects a private conversation from being taped without all-party
consent.
353
In 1982, in Sullivan v. Gray, the Court of Appeals of Michigan provided a
unique interpretation of the state’s eavesdropping and wiretapping statutes.
354
The Michigan intermediate appellate court considered “whether participant
recording is forbidden” even though the Michigan statutes require all-party
consent to tape a conversation.
355
The court stated: “We believe the statutory
language, on its face, unambiguously excludes participant recording from the
definition of eavesdropping by limiting the subject conversation to ‘the private
discourse of others.’”
356
The court acknowledged that the interpretation
produces an anomalous result in that a participant may freely and secretly tape
a conversation, but a non-participant may not tape the same conversation without
consent of all parties.
357
The court explained that a participant may always take
notes regarding the conversation, putting the participant in the best position to
evaluate what another participant may reveal to others about the private:
358
“The
individual may gauge his expectations according to his own evaluation of the
person to whom he speaks. He has the ability to limit what he says based upon
that expectation.”
359
In contrast, not all of the participants may be acquainted
with an outsider: “When a third party is unilaterally given permission to listen
in upon a conversation, unknown to other participants, those other participants
are no longer able to evaluate and form accurate expectations since they are
without knowledge of the third party.”
360
The Sullivan dissent disagreed with the statutory interpretation provided in
the majority opinion and then provided reasons why all-party consent should be
required in Michigan:
361
“There is obviously more credence given to a tape
353
MICH. COMP. LAWS. ANN. § 750.539c (West 2020).
354
Sullivan v. Gray, 324 N.W.2d 58 (Mich. Ct. App. 1982). It is interesting to note that
the Supreme Court of Michigan has not cited to Sullivan even though the intermediate
appellate interpretation of the Michigan statutes is unique in interpreting the consent
requirement in the eavesdropping and wiretapping statutes to apply to non-participant, rather
than to participant taping. The Supreme Court of Michigan did state that it was leaving open
the question of whether the intermediate appellate court correctly interpreted the Michigan
eavesdropping statute. Dickerson v. Raphael, 461 Mich. 851, 851 (1999). Although not
unheard of, Sullivan was decided almost forty years ago and the Supreme Court of Michigan
has yet to provide a different interpretation of the statute.
355
Sullivan, 324 N.W.2d at 59.
356
Id.
357
Id. at 60.
358
Id.
359
Id.
360
Id.
361
Id. at 61–62 (Brennan, J., dissenting).
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recording than a verbal recollection. . . . Violations of these restrictive statutes
should carry strict and serious penalties so as to discourage future use.”
362
The
dissent added: “I cannot repeat enough for emphasis that there has been a deluge
of sophisticated electronic listening equipment within the last two decades that
threatens all privacy.”
363
In 1999, in Dickerson v. Raphael, the Supreme Court of Michigan considered
the correct measure to be used when determining if a conversation is private
under the Michigan eavesdropping statutes.
364
The facts were described in the
opinion of the intermediate appellate court.
365
Dickerson’s daughter contacted
the Sally Jessy Raphael television show about her desire to have a conversation
with her mother, regarding her mother’s membership in the Church of
Scientology, to later be rebroadcasted on national television.
366
The show
producer had the daughter fitted with a device that could transmit audio and
video of the conversation to be secretly taped in a nearby van.
367
The daughter,
the daughter’s husband, and Dickerson’s son spoke with Dickerson in a public
park while the conversation was secretly videotaped.
368
Portions of the
conversation were later broadcast on national television.
369
Dickerson sued
claiming that the secret taping violated the Michigan eavesdropping statutes.
370
The Supreme Court of Michigan found that the trial court’s jury instruction to
determine if the conversation qualified as a private conversation under the
Michigan eavesdropping statutes was not correct.
371
The Court stated that, “[t]he
proper question is whether plaintiff intended and reasonably expected that the
conversation was private, not whether the subject matter was intended to be
private.”
372
In 2001, the Supreme Court of Michigan decided People v. Stone, in which
an estranged husband was charged with using a scanner to eavesdrop on his
wife’s cordless telephone conversations.
373
The issue before the court was
whether the wife’s conversations qualified as “private conversation” protected
against being secretly taped.
374
The court held “that, although current technology
362
Id. at 62.
363
Id.
364
Dickerson v. Raphael, 461 Mich. 851, 851 (Mich. 1999).
365
Id., reversing in part Dickerson v. Raphael, 654 N.W.2d 85 (Mich. Ct. App. 1997).
366
Dickerson, 564 N.W.2d at 87, rev’d in part, 461 Mich. 851 (Mich. 1999).
367
Id. at 87–88
368
Id.
369
Id. at 88.
370
Id.
371
Dickerson, 461 Mich. at 851 (Mich. 1999).
372
Id.
373
People v. Stone, 621 N.W.2d 702, 703 (Mich. 2001).
374
Id.
2020] Privacy, Eavesdropping, and Wiretapping 43
may allow cordless telephone conversations to be intercepted, such
conversations nonetheless can be private conversations under the eavesdropping
statutes.”
375
The court reasoned that “although the victim may have known that
her cordless telephone conversations could be willfully intercepted with a
device, she also could presume that others would not eavesdrop on her cordless
telephone conversations using any device because doing so is a felony under the
eavesdropping statutes.”
376
In 2011, in Bowens v. Ary, Inc., the Supreme Court of Michigan had to
determine whether plaintiffs’ conversation with defendants that defendants
taped qualified as a private conversation under the Michigan eavesdropping
statute.
377
The Michigan court concluded that the plaintiffs’ claimed expectation
of privacy was not reasonable based on the circumstances.
378
The following evidence compels this conclusion: (1) the general
locale of the meeting was the backstage of the Joe Louis arena during
the hectic hours preceding a high-profile concert, where over 400
people, including national and local media, had backstage passes; (2)
the concert-promoter defendants were not receptive to the public-
official plaintiffs’ requests and, by all accounts, the parties’
relationship was antagonistic; (3) the room in which plaintiffs chose
to converse served as defendants’ operational headquarters with
security personnel connected to defendants controlling the open
doors; (4) there were at least nine identified people in the room, plus
unidentified others who were free to come and go from the room, and
listen to the conversation, as they pleased; (5) plaintiffs were aware
that there were multiple camera crews in the vicinity, including a
crew from MTV and a crew specifically hired by defendants to
record backstage matters of interest; (6) and video evidence shows
one person visibly filming in the room where the conversation took
place while plaintiffs were present, thereby establishing that at least
one cameraman was openly and obviously filming during the course
of what plaintiffs have characterized as a “private conversation.”
379
The dissent opined that the facts were not as clear as the majority made them
out to be, of which several of the six factors listed by the majority are not
determinative as to whether the plaintiffs’ expectation of privacy was
reasonable, and that the majority should not have decided a factual question as
a question of law.
380
375
Id.
376
Id. at 705–06.
377
Bowens v. Ary, Inc., 794 N.W.2d 842, 843–44 (Mich. 2011).
378
Id. at 844.
379
Id. at 843–44.
380
Id. at 845–46 (Kelly, J., dissenting).
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G. Montana
The Montana all-party consent statute is comparatively brief and contains no
one-party consent exception.
381
H. Nevada
Nevada, through case-law interpretation of the Nevada statutes, protects a
telephone conversation from being taped without all-party consent and requires
one-party consent to secretly tape a private conversation.
382
The Nevada statute
permits one-party consent to secretly tape a telephone conversation in the
extremely limited circumstance when there is an emergency and a court order
cannot be obtained, although the court order must be applied for within seventy-
two hours.
383
In 1998, in Lane v. Allstate Insurance Co., a plurality of the Supreme Court
of Nevada interpreted the statute to mean that secretly taping a telephone
conversation based on only one-party consent is illegal.
384
Another opinion
concurring in part and dissenting in part agreed that the statute should be
interpreted to mean that secretly taping a telephone conversation on one-party
consent is illegal.
385
One dissenting opinion argued that Lane did not do anything
unlawful in taping telephone conversations in which he was a participant.
386
A
second dissenting opinion pointed out that the state statutes were ambiguous as
judged by the varying interpretation of the statutes by the judges and justices
that considered Lane.
387
The author of that opinion would interpret § 200.620 to
apply only to law enforcement, making Lane’s secret taping of the telephone
conversations legal.
388
The wording of § 200.620 remained unchanged, and the Supreme Court of
Nevada did not have occasion to reconsider the statute until nineteen years
later.
389
In 2017, at the beginning of the opinion in Ditech Financial LLC v.
Buckles, the Supreme Court of Nevada stated, “NRS 200.620 prohibits a person
from recording a telephone call unless both parties participating in the call
381
See MONT. CODE. ANN. § 45-8-213 (West 2019) (legislating expectations of privacy
in communication).
382
NEV. REV. STAT. ANN. § 200.620 (West 2019).
383
§ 200.620 (1)(b), (3).
384
Lane v. Allstate Ins. Co., 969 P.2d 938, 941 (Nev. 1998).
385
Id. at 941–42 (Shearing, J., concurring in part and dissenting in part).
386
Id. at 942 (Springer, C.J., concurring and dissenting).
387
Id. at 945 (Rose, J., dissenting).
388
Id.
389
Ditech Fin. LLC v. Buckles, 401 P.3d 215, 216 (Nev. 2017).
2020] Privacy, Eavesdropping, and Wiretapping 45
consent to the recording.”
390
The Nevada court then quickly moved on to decide
that the statute did not apply in Ditech because the location of the taping was
outside Nevada.
391
I. Oregon
Oregon requires all party consent to tape a face-to-face conversation, permits
secret taping of a telephone conversation on one-party consent, and has a limited
color of law exception.
392
In case law, the eavesdropping and wiretapping
statutes have been applied fairly strictly.
In 1996, in State v. Carston,
393
a private citizen used a scanner to overhear a
cordless telephone conversation discussing an illegal drug transaction. The
citizen called the local police department and provided information from the
overheard conversation that the police used to locate the suspects.
394
The trial
court agreed with the suspects that all of the information should be suppressed
because it was derivative of the illegally heard conversation.
395
The Supreme
Court of Oregon agreed with the trial court because the private citizen’s access
to the cordless telephone conversation was illegal.
396
In 2000, in State v. Fleetwood, an informant was wearing a transmitter that
permitted a detective to record conversations in Fleetwood’s home; these
conversations included Fleetwood’s side of a telephone conversation, a
conversation between Fleetwood and his mother, and Fleetwood’s conversation
with the informant.
397
The Supreme Court of Oregon determined that the secretly
taped suspect’s side of the conversation was inadmissible because the informant
was not a party to the telephone conversation and neither party to the
conversation consented to the conversation being taped.
398
The Oregon court
decided that the conversation between Fleetwood and his mother was
inadmissible because the informant was not a party to the conversation.
399
The
secretly taped conversation was also inadmissible because the taping did not
comply with the color of law exception.
400
Since Fleetwood, the color of law
390
Id.
391
Id. at 217.
392
See Appendix B.
393
State v. Carston, 913 P.2d 709, 710 (Or. 1996).
394
Id. at 710–11.
395
Id. at 711.
396
Id. at 714.
397
State v. Fleetwood, 16 P.3d 503, 506 (Or. 2000).
398
Id. at 510.
399
Id. at 511.
400
Id. at 514. In a similar case decided the same year, the Supreme Court of Oregon
ruled that face-to-face conversations overheard by the police through a body wire hidden on
the informant were inadmissible following the Fleetwood reasoning. State v. Cleveland, 16
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statutory exception was amended.
In 2012, in State v. Miskell, the Supreme Court of Oregon interpreted the
exigency provision in the statutory color of law exception that would have
permitted police officers to secretly tape a conversation between an informant
and the suspects in the informant’s hotel room.
401
The Oregon court decided that
the exigency provision did not cover the taping situation and the taped
conversation was inadmissible.
402
The court reasoned that the available four-
hour window between finalization of the plan to secretly tape the hotel room
conversation and the secret taping was sufficient for the police officer to obtain
a court order.
403
J. Pennsylvania
Pennsylvania protection against eavesdropping and wiretapping requires all-
party consent for face-to-face and telephone conversations.
404
Pennsylvania
permits one-party consent to secretly tape a conversation where the person
taping has reasonable suspicion of a crime of violence and where there is reason
to believe that the secret taping will yield evidence of the crime.
405
On September 10, 2019, in Commonwealth v. Mason, the Supreme Court of
Pennsylvania granted an appeal limited to the following two issues:
(1) Whether a babysitter has a reasonable expectation of privacy in
the bedroom of a child she is caring for?
(2) Whether the sounds resulting from a child being forcibly thrown
into a crib and being beaten by [Mason] constitute “oral
communications” or “evidence derived therefrom” under the
Pennsylvania wiretap statute?
406
In Mason, the father had hired Mason to serve as a nanny for his children.
407
Suspecting child abuse, the father questioned Mason, but she denied any
problem.
408
The father installed a hidden nanny camera with video-and-audio
capabilities in the children’s bedroom; Mason was unaware of the device.
409
The
P.3d 514, 515 (Or. 2000).
401
State v. Miskell, 277 P.3d 522, 523, 525 (Or. 2012).
402
Id. at 526, 28, 31–34.
403
Id. at 533.
404
18 PA. STAT. AND CONS. STAT. ANN. § 5704(4) (West 2020).
405
§ 5704(17).
406
Commonwealth v. Mason, 217 A.3d 802, 803 (Pa. 2019).
407
Commonwealth v. Mason, No. 1091 MDA 2018, 2019 WL 1084210, at *1 (Pa.
Super. Ct. Mar. 7, 2019).
408
Id.
409
Id.
2020] Privacy, Eavesdropping, and Wiretapping 47
hidden device secretly taped Mason allegedly yelling at one of the children,
shoving the child into a crib, and hitting the child several times.
410
After the
father turned over the secretly taped information to the police, Mason was
charged with several crimes.
411
Mason claimed that the secretly taped
information was collected in violation of the Pennsylvania eavesdropping
statutes.
412
The trial court granted Mason’s motion to suppress.
413
On interlocutory appeal to consider the admissibility of the secretly taped
information, the intermediate appellate court made several findings.
414
First, the
court found that the trial court was correct in ruling that the captured words and
sounds were inadmissible, and the sounds should not be treated differently than
the words.
415
Second, at the Commonwealth’s urging, the court considered
whether the secretly taped Wiretap Act exception of non-interception should
apply.
416
The court found that Mason’s expectation of privacy was reasonable
because the secret taping was done in a bedroom and Mason had no reason to
suspect that she would be secretly taped.
417
Therefore, the audio words and
sounds were protected against being secretly taped.
418
Lastly, the
Commonwealth argued that the secretly taped information was admissible under
the “crime exception” to the Wiretap Act.
419
The court noted that the father had
waited two months after suspecting Mason of engaging in child abuse to install
the nanny camera.
420
The court found that the facts provided failed to support
the father’s reason to believe that the secret taping would produce evidence of a
crime of violence.
421
The court did find that the trial court wrongly excluded the
video portion of the secretly taped information, as the video is not protected
against secret taping under the Pennsylvania eavesdropping statutes.
422
K. Washington
Washington’s protections against eavesdropping and wiretapping requires all-
party consent for face-to-face and telephone conversations.
423
Washington
410
Id.
411
Id.
412
Id.
413
Id.
414
Id. at *1–2.
415
Id. at *3.
416
Id. at *3–4.
417
Id.
418
Id. at *4.
419
Id.
420
Id. at *5.
421
Id.
422
Id. at *5–6.
423
WASH. REV. CODE ANN. § 9.73.030(1)(a)–(b) (West 2020).
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permits one-party consent to secretly tape a conversation where the conversation
is of emergency nature, anonymous, repeated, or made at inconvenient times or
is related to threats of extortion, blackmail, bodily harm, other unlawful requests
or demands, or a hostage or barricade situation.
424
In 1996, in State v. Clark, an informant in a vehicle equipped with a hidden
camera posed as an illegal drug purchaser.
425
The undercover operation resulted
in sixteen arrests, with all suspects claiming that the secretly taped conversations
should be suppressed, but all the suppression motions were denied.
426
The secret
taping was court authorized, but the court authorization was not dealt with in the
majority opinion of the Supreme Court of Washington.
427
The Washington court
focused on whether the secretly taped conversations qualified as a private
conversation protected against being secretly taped under the state
eavesdropping statutes.
428
The court stated, “[t]he conversations here were not
private because they were routine conversations between strangers on the street
concerning routine illegal drug sales.”
429
The court concluded that the lower
courts had been correct in ruling the secretly taped conversations admissible.
430
One justice concurred in part and dissented in part.
431
The justice opined that
the four suspects whose transactions occurred in the informant’s vehicle did
engage in private conversation and the almost-blanket court authorization was
insufficient.
432
In 2004, in State v. Christensen, Christensen, who allegedly had information
about a purse-snatching, telephoned his girlfriend.
433
The girlfriend’s mother
answered and, after her daughter left the room, used the speakerphone on the
cordless telephone to secretly listen in to the conversation between Christensen
and her daughter.
434
The mother testified at Christensen’s trial.
435
The Supreme
Court of Washington considered whether the trial court was correct in permitting
the mother to testify.
436
The Washington court found that Christensen’s
expectation of privacy was reasonable and there was no exception that would
424
§ 9.73.030(2).
425
State v. Clark, 916 P.2d 384, 388 (Wash. 1996).
426
Id. at 390.
427
See id. at 388 (failing to address the issue of court authorization which emphasizes
the significance of the source).
428
Id. at 390–91.
429
Id. at 393.
430
Id. at 396.
431
Id.
432
Id. (Alexander, J., concurring in part and dissenting in part).
433
State v. Christensen, 102 P.3d 789, 790–91 (Wash. 2004).
434
See id. at 791 (highlighting the court’s failure to address the issue because it is not
disputed that the act of listening was an intercept within the meaning of the statute).
435
Id.
436
Id.
2020] Privacy, Eavesdropping, and Wiretapping 49
permit a parent to listen in to a minor’s telephone conversation.
437
The court
found that the cordless phone-base unit was a device designed to transmit within
the meaning of the state wiretapping statutes.
438
The court decided that the trial
court had erred in permitting the mother to testify and the error was sufficiently
serious to entitle Christensen to a new trial.
439
In 2014, in State v. Kipp, Kipp’s brother-in-law secretly taped a conversation
with Kipp that took place in a private home in which the brother-in-law accused
Kipp of allegedly sexually assaulting two of the brother-in-law’s daughters.
440
The Supreme Court of Washington held that Kipp’s expectation of privacy was
reasonable and the trial court was incorrect in denying Kipp’s motion to suppress
the secretly taped conversation.
441
The Washington court found that Kipp’s
expectation of privacy was reasonable because of both the fairly short duration
and the sensitive nature of the conversation and the location of the conversation
in a private home exclusively between two family members.
442
In 2017, in State v. Smith, the Smiths were engaging in a domestic dispute
that resulted in the wife being seriously injured.
443
During the episode, the
suspect tried to find his cell phone by calling the cell phone from the home
phone.
444
Voicemail recorded part of the incident while the home phone
remained active.
445
After Smith was arrested, he filed a motion to have the
voicemail audio suppressed.
446
The Supreme Court of Washington first found
that the voicemail audio was not a conversation under the state eavesdropping
statutes because the content was primarily sound.
447
In addition, the Washington
court found that the taping fell within the one-party consent threat exception to
the statutes because Smith was the one who called his cell phone and, because
of Smith’s familiarity with the cell phone’s voicemail taping capability, Smith
consented to the taping.
448
The court reinstated Smith’s conviction.
449
There were two concurring opinions.
450
The first concurring opinion pointed
out that Smith had no standing because he was the one who made the
437
Id. at 792.
438
Id. at 793–94.
439
Id. at 796.
440
State v. Kipp, 317 P.3d 1029, 1031 (Wash. 2014).
441
Id. at 1035–36.
442
Id. at 1034–35.
443
State v. Smith, 405 P.3d 997, 999 (Wash. 2017).
444
Id.
445
Id.
446
Id. at 1000.
447
Id. at 1002.
448
Id. at 1003.
449
Id.
450
See id. at 1004–05.
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recording.
451
The second concurring opinion would have found that the
information recorded was a conversation and found that Smith did have an
expectation of privacy that was reasonable, given that the couple was alone in
their home.
452
However, the information taped with one-party consent was
admissible under the threat exception; Smith consented to the taping, given his
familiarity with the capability of his cell phone.
453
V. ONE-PARTY CONSENT
As explained above, the majority of the states permit a conversation to be
secretly taped with one party’s consent. This section includes cases from several
states that involved one-party consent.
A. South Dakota
In 1985, in State v. Woods, a paid law enforcement agent was wearing a
hidden device that permitted the sheriff to monitor and secretly tape the agent’s
alleged purchase of illegal drugs from Woods.
454
Woods claimed that the
secretly taped conversation was inadmissible because there was no court
order.
455
The Supreme Court of South Dakota distinguished the facts in Woods
from a situation in which a non-participant secretly eavesdrops on a
conversation.
456
The South Dakota court referenced several similar U.S.
Supreme Court cases in which an informant secretly transmitted or recorded a
conversation and the suspect assumed the risk that the substance of the
conversation might be disclosed.
457
In arriving at this interpretation, the South
Dakota court was strongly influenced by decisions of federal courts interpreting
similar language in the federal statutes.
458
In 1990, in State v. Braddock, an acquaintance of Braddock called Braddock,
and police officers secretly taped the telephone conversation with the
acquaintance’s permission.
459
Braddock claimed that the secretly taped
telephone conversation was inadmissible because one-person consent was
inapplicable to the secret taping of a telephone conversation and secret taping
451
Id. at 1004 (Gonzalez, J., concurring).
452
Id. at 1005–07 (McCloud, J., concurring).
453
Id. at 1007.
454
State v. Woods, 361 N.W.2d 620, 621 (S.D. 1985).
455
Id.
456
Id.
457
Id.
458
Id.
459
State v. Braddock, 452 N.W.2d 785, 787 (S.D. 1990).
2020] Privacy, Eavesdropping, and Wiretapping 51
required prior court authorization.
460
The Supreme Court of South Dakota
concluded that one-party consent applied to permit secret taping of a telephone
conversation and no prior court approval was necessary.
461
B. Texas
In 2017, in Long v. State, Long was convicted for allegedly encouraging her
daughter, C.L., to secretly tape Coach Townsend’s half-time and after-game
speeches.
462
Long was an Argyle school board member, and C.L. was a student
at Argyle High School.
463
The Argyle High School girls’ basketball team was
playing an away game at Sanger High School, a rival high school whose girls’
basketball team was one game ahead of Argyle in the standings.
464
C.L.,
claiming to be a team manager, gained access to the visitor’s locker room and
set up her phone to make a secret audio-and-video taping of the coach’s half-
time speech.
465
C.L. was also able to make an audio taping of the coach’s after-
game speech.
466
An edited version of the two tapings was emailed to the school
board members so they would have the information prior to deciding whether to
grant Coach Townsend a term contract.
467
Long showed an assistant principal
part of the secretly taped information.
468
The police investigation turned up
Long’s written statement that contained criticism of the coach’s harsh treatment
of players.
469
Long claimed that Coach Townsend did not have a reasonable expectation of
privacy in the locker room, and therefore Long had not done anything illegal.
470
The Court of Criminal Appeals of Texas noted that the Texas definition of oral
communication was very similar to the federal statute, which led the court to use
the Katz two-step test in deciding Long.
471
The Texas court found that Coach
Townsend had an expectation of privacy and the expectation was reasonable.
472
The locker room was limited to coaches and team players, and there were two
sets of doors at the locker-room entrance.
473
460
Id. at 787–88.
461
Id. at 788.
462
Long v. State, 535 S.W.3d 511, 514, 519–20 (Tex. Crim. App. 2017).
463
Id. at 514–15.
464
Id. at 515.
465
Id.
466
Id.
467
Id.
468
Id. at 516.
469
Id.
470
Id. at 518.
471
Id. at 523–24.
472
Id. at 525.
473
Id. at 515.
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The dissent likened the locker room to a classroom. It pointed out that the
locker-room door was open, there were three other coaches in the room, and
Coach Townsend was speaking in a loud voice about player performance and
did not discuss game strategy.
474
In 2018, in White v. State,
475
a roofing company owner received a telephone
call from Brandon, who sent the owner a recorded audio conversation in which
Brandon, White, and Robey were discussing some of their activities involving
the roofing company. After the owner contacted the police, White and Robey
were charged with engaging in organized criminal activity and money
laundering.
476
The Court of Criminal Appeals of Texas agreed with the two
lower courts that the audio-recorded conversation was admissible.
477
C. Wisconsin
In 2008, in State v. Duchow, the allegedly threatening statements that public
school bus driver Duchow made to a disabled child on Duchow’s bus were
secretly taped by a voice-activated device the child’s parents hid in the child’s
backpack.
478
The Supreme Court of Wisconsin held that the secretly taped
statements were not protected as oral communication under the state statutes;
because Duchow’s claimed expectation of privacy was not reasonable, the
statements would be admissible.
479
The Wisconsin court explained, “because
Duchow’s statements were made on a public school bus, being used for the
public purpose of transporting school children; because they were threats to
harm Jacob for which Duchow assumed the risk that Jacob would report,
Duchow had no reasonable expectation of privacy in his statements.”
480
VI. THE REASONABLE EXPECTATION OF PRIVACY STANDARD AS
BASED ON DISCRETION
The key to interpreting and applying many all-party consent statutes is
whether a conversation is private, which is often gauged by whether the suspect
474
Id. at 540–41 (Richardson, J., dissenting).
475
White v. State, 549 S.W.3d 146, 148–49 (Tex. Crim. App. 2018).
476
Id. at 149.
477
Id. at 148. The majority opinion contained little discussion of the Texas
eavesdropping and wiretapping statutes. White v. State, 549 S.W.3d 146 (Tex. Crim. App.
2018). The concurring opinion briefly suggests that one-party consent made the secret
taping legal. White v. State, 549 S.W.3d 146, 162 (Tex. Crim. App. 2018) (Keller, P.J.,
concurring).
478
State v. Duchow, 749 N.W.2d 913, 915 (Wis. 2008).
479
Id. at 925.
480
Id.
2020] Privacy, Eavesdropping, and Wiretapping 53
has an expectation of privacy that is reasonable.
481
Determining whether there is
a reasonable expectation of privacy also comes into play in a one-party consent
jurisdiction when a non-participant secretly tapes a conversation.
482
A
reasonable expectation of privacy is a standard that must be applied by the judge
on a case-by-case basis.
483
A standard is clearly divorced from the facts and may
provide little certainty in guiding the judge in decision-making, as the standard
is somewhat vague. A suspect’s expectation of privacy is dependent on the facts
and, more particularly, on the judge’s view of the facts. In most cases, the result
is not clear-cut, or predictable, and different judges draw a variety of disparate
inferences from the same facts. An indication of this imprecision is that the
standard is applied differently by different levels of judges as a case is appealed,
perhaps with an intermediate appellate court reversing the trial court decision
and the intermediate appellate court decision being reversed by the court of last
resort. Other indications of the imprecision in applying the standard of
reasonableness are justices authoring concurring or dissenting opinions and a
case being overruled fairly soon after having been decided. There are various
steps throughout the adjudicative process at which judges can correct decisions
made at earlier steps. However, correction with excess frequency creates a sense
of instability.
One may be wondering why judges differ so greatly in their views of a case.
Perhaps one reason lies in the nature of a standard: a standard permits a judge to
exercise considerable discretion.
484
A suspect typically claims an expectation of
privacy. A judge has leeway in the way in which they characterize the facts and
in identifying which facts are the most significant.
485
A judge may be guided, at
least in part, by the judge’s emotions in making this factual determination.
486
The judge’s view of the facts provides the judge discretion in determining
whether the suspect’s expectation of privacy was reasonable under the
circumstances.
487
The perception is that a standard permits the judge some
481
See Long v. State, 535 S.W.3d at 511, 524–25 (Tex. Crim. App. 2017); see also
Duchow, 749 N.W.2d at 920 (both cases explaining the two-prong test for determining
whether an individual has a reasonable expectation of privacy).
482
See State v. Braddock, 452 N.W.2d 785, 788 (S.D. 1990) (explaining the court’s
reliance on the reasonable expectation of privacy standard in one-party consent cases).
483
See Long, 535 S.W.3d at 524–25; see also Duchow, 749 N.W.2d at 920.
484
See James Bopp, Jr. & Richard E. Coleson, Judicial Standard of Review and Webster,
15 AM. J. L. & MED. 211, 211 (1989) (describing judicial standards of review).
485
See Richard S. Higgins & Paul H. Rubin, Judicial Discretion, 9 J. Legal Stud. 129,
131 (1980) (explaining the amount of discretion given to judges).
486
Andrew J. Wistrich, Jeffrey J. Rachlinski & Chris Guthrie, Heart Versus Head: Do
Judges Follow the Law or Follow Their Feelings?, 93 TEX. L. REV. 855, 898–900 (2015).
One study showed that a judge may be guided by emotion in applying a standard.
487
Id. at 900.
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discretion.
488
Great minds can differ on which facts are salient and how the
standard of reasonableness applies to the significant facts. Judicial discretion is
not unfettered because the judge’s final decision must be substantiated with
reasoning. A judge’s interpretation of reasonableness based on the facts of the
case often can be accomplished without the necessity of the judge carving out a
judicial exception to the application of the statute.
In all-party consent states, the judge’s determination whether the suspect’s
expectation of privacy is reasonable is pivotal. The judge’s conclusion is pivotal
because it is the basis for finding the secretly taped conversation admissible or
inadmissible.
489
The determination of reasonableness is crucial where the
secretly taped conversation is the sole piece of incriminating evidence against
the suspect. Typically, whether the suspect’s expectation of privacy is
reasonable is hotly contested because the decision may end the litigation. The
trial judge bases the judge’s finding that the suspect’s expectation of privacy was
or was not reasonable on the judge’s inferences drawn from the facts.
Previously, this paper reviewed case law interpreting eavesdropping and
wiretapping statutes. The following sections briefly review some of those cases
again with a focus on each court’s interpretation of whether the suspect’s
expectation of privacy was reasonable. In some of those cases, the court seems
to stretch in its interpretation of the reasonableness of the suspect’s expectation
of privacy to produce the desired result.
VII. THE REASONABLE EXPECTATION STANDARD AND
INTERPRETATION OF A STATE CONSTITUTION
The reasonable expectation standard is commonly used in interpreting a state
constitution, with location of the secret taping often being the key in applying
the standard.
490
Many state courts have been guided by the reasoning of Justice
Harlan’s dissent in United States v. White when the secret taping occurred in a
home.
491
This holds true in Alaska, Massachusetts, Montana, Pennsylvania,
Vermont, and West Virginia.
488
Id.
489
See Admissibility, BLACK’S LAW DICTIONARY (11th ed. 2019) (defining admissibility
as “the quality, state, or condition of being allowed to be entered into evidence in a hearing,
trial, or other official proceeding”).
490
See infra text accompanying notes 528–95.
491
United States v. White, 401 U.S. 745, 786–87 (1971) (Harlan, J., dissenting).
2020] Privacy, Eavesdropping, and Wiretapping 55
A. Alaska
The Supreme Court of Alaska has drawn the parameters of protection against
taping under the privacy provision of the Alaska Constitution.
492
According to
the Alaska court, one’s home is a protected location while the roadside and an
office open to the public are not protected locations.
493
In 1978, in State v. Glass, the Supreme Court of Alaska found that the privacy
provision in the Alaska Constitution did protect a suspect in his own home being
taped by the police, through an informant meeting with the suspect wearing a
radio transmitter, because the dual requirement of an expectation of privacy that
was reasonable was satisfied.
494
In 1984, in City and Borough of Juneau v.
Quinto, the Supreme Court of Alaska found that the privacy provision in the
Alaska Constitution did not protect a motorist pulled over by a police officer on
suspicion of drunk driving from being secretly taped by the officer because the
motorist’s expectation of privacy under the circumstances was not reasonable.
495
In 2001, in Cowles v. State, the Supreme Court of Alaska found that the privacy
provision in the Alaska Constitution did not protect the manager of a university
box office suspected of stealing from being secretly videotaped by a video
camera installed above her desk because the suspect’s claimed expectation of
privacy was not reasonable given that the alleged theft occurred in an area visible
to the public.
496
The dissenting opinion stated that the manager’s expectation of
privacy was reasonable and the overhead video camera “exceeded her
reasonably expected public observation in its duration, proximity, focus, and
vantage point.”
497
B. Connecticut
The Supreme Court of Connecticut found that the search-and-seizure
provision of the Connecticut Constitution did not protect against secret taping of
a telephone conversation with only one party’s consent.
498
In 2015, in State v. Skok, the Supreme Court of Connecticut concluded that
Skok’s expectation of privacy in her telephone conversations with Becker was
not reasonable because Skok reminded Becker a number of times that Becker
492
ALASKA CONST. art. I, § 22.
493
See Cowles v. State, 23 P.3d 1168, 1171 (Alaska 2001); see also Juneau v. Quinto,
684 P.2d 127, 129 (Alaska 1984); see also State v. Glass, 583 P.2d 872, 875, 879–80.
(Alaska 1978).
494
Glass, 583 P.2d at 880–82.
495
Quinto, 684 P.2d at 129.
496
Cowles, 23 P.3d at 1175.
497
Id. at 1175–76 (Fabe, J., dissenting).
498
State v. Skok, 122 A.3d 608, 621 (Conn. 2015).
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should not permit family to overhear their conversation, indicating that Skok
believed in the possibility that Becker’s family would overhear the
conversations.
499
C. Massachusetts
The Supreme Judicial Court of Massachusetts has found protection against
secret taping under the search-and-seizure provision of the Massachusetts
Constitution for a conversation occurring in a suspect’s home or overheard from
a crawl space underneath the suspect’s home, but not for a conversation
transpiring in a motel room of another or over the telephone.
500
In 1987, in Commonwealth v. Blood, the Supreme Judicial Court of
Massachusetts found that the search-and-seizure provision in the Massachusetts
Constitution did protect a suspect in a home being taped by the police through
an informant wearing a radio transmitter while meeting with the suspect because
the suspect’s expectation of privacy was reasonable.
501
The dissenting opinion
evaluated the suspect’s expectation of privacy, stating that it is “no longer
reasonable when the home becomes a site for planning criminal activity.”
502
In
1989, in Commonwealth v. Panetti, the Supreme Judicial Court of Massachusetts
extended the location in which a suspect had a reasonable expectation of privacy
protected against secret taping to a crawl space underneath the suspect’s
apartment because “the police officer was positioned where neither neighbors
nor the public would ordinarily be expected to be.”
503
The dissenting opinion
evaluated the suspect’s expectation as not reasonable: the police officer was
lawfully in the crawl space in which the suspect had no legal interest.
504
In 1990,
in Commonwealth v. Price, the Massachusetts court ruled that the suspect’s
expectation of privacy did not extend to a motel room where the suspect was not
the one to whom the motel room was registered.
505
In 1998, in Commonwealth
v. Eason, the court found that a suspect speaking on the telephone did not have
an expectation of privacy that was reasonable.
506
499
Id.
500
Commonwealth v. Eason, 694 N.E.2d 1264, 1267–68 (Mass. 1998); see also
Commonwealth v. Price, 562 N.E.2d 1355, 1358 (Mass. 1990); see Commonwealth v.
Panetti, 547 N.E.2d 46, 48 (Mass. 1989); see also Commonwealth v. Blood, 507 N.E.2d
1029, 1034–34, 1037, 1039 (Mass. 1987).
501
Blood, 507 N.E.2d at 1029–30, 1034, 1037, 1040.
502
Id. at 1039–40 (Nolan, J., dissenting).
503
Panetti, 547 N.E.2d at 46–48.
504
Id. at 48–49 (Nolan, J., dissenting).
505
Price, 562 N.E.2d at 1358.
506
Eason, 694 N.E.2d at 1264, 1268 (Mass. 1998).
2020] Privacy, Eavesdropping, and Wiretapping 57
D. Montana
Although the Supreme Court of Montana now interprets the Montana
Constitution as providing significant protection against a conversation being
secretly taped,
507
the court has seesawed back-and-forth in the past thirty-five
years: State v. Goetz
508
in 2008 overruled State v. Brown,
509
a 1988 case, which
in turn had overruled State v. Brackman,
510
a 1978 case.
In State v. Goetz, police officers monitored and secretly taped the suspect’s
conversation through the use of an informant. In 2008, the Supreme Court of
Montana decided that the suspect’s conversations that occurred either in the
suspect’s home or in the informant’s vehicle should be protected against
transmission because the expectation of privacy was reasonable in a private
setting.
511
There did not seem to be a consensus among the seven members of
the court.
512
Besides the majority opinion, there were two concurring opinions,
two dissenting opinions, and an opinion concurring in part and dissenting in
part.
513
The different Goetz opinions varied in reasoning.
514
One concurring opinion
would not have limited protection against secret taping to a home or vehicle,
stating that “Montanans do not have to anticipate that a conversation, no matter
what setting, is being secretly recorded by agents of the state acting without the
benefit of a search warrant.”
515
An opinion concurring in part and dissenting in
part agreed with the reasonable privacy expectation that the majority applied to
the home setting, but would not have recognized a similar reasonable
expectation of privacy for a vehicle because the suspect who conducted his
conversation “did not know the informant, and presumably he would not know
whether the informant owned or controlled the vehicle in which the conversation
took place.”
516
The dissenting opinion focused on the commercial nature of a
business transaction with strangers as foreclosing a professed expectation of
privacy as being reasonable no matter the location.
517
In 2010, in State v. Allen, the Supreme Court of Montana extended the
507
State v. Goetz, 191 P.3d 489, 498, 504 (Mont. 2008); see also State v. Brown, 755
P.2d 1364, 1369 (Mont. 1988); see also State v. Brackman, 582 P.2d 1216, 1220, 1222
(Mont. 1978).
508
Goetz, 191 P.3d at 504.
509
Brown, 755 P.2d at 1368–69, 1371, overruled by Goetz, 191 P.3d at 489.
510
Brackman, 582 P.2d at 1220, 1222, overruled by Brown, 755 P.2d at 1364.
511
Goetz, 191 P.3d at 498, 504.
512
Id. at 504–05, 507–08, 512, 516.
513
Id.
514
Id.
515
Id. at 504 (Leaphardt, J., concurring); see also id. at 506, 518 (Cotter, J., concurring).
516
Id. at 507–08 (Morris, J., concurring and dissenting).
517
Id. at 512–13, 519 (Rice, J., dissenting) (Warner, J., dissenting).
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protection against secret taping under the Montana Constitution to an informant
secretly taping cell-phone conversations between the suspect and the informant.
The court held that the suspect’s expectation of privacy when speaking on a cell
phone that the conversation is not being monitored by the government is one that
society would recognize as reasonable.
518
The concurring opinion would have
extended the Montana Constitution’s protection to the informant’s testimony
about the secretly taped cell-phone conversation because both the verbal and
taped conversations would have required a search warrant.
519
An opinion
concurring in part and dissenting in part would have affirmed the trial court’s
denial of the suspect’s motion to suppress the secretly taped conversation
between the suspect and the informant, noting that the suspect’s expectation of
privacy was not reasonable because the suspect was speaking with others during
his cell-phone conversations with the informant.
520
In 2012, in State v. Stewart, the Supreme Court of Montana was tasked with
applying Allen to a case in which a daughter permitted the police to secretly tape
four telephone conversations with her father to gather evidence that the father
had been sexually abusing her for the past eleven years.
521
The Montana court
ruled that admission of the secretly taped telephone calls was a harmless error
because of all the evidence against the suspect admitted at trial.
522
The case law of the Supreme Court of Montana protecting conversations from
being secretly taped has had something of a rocky trajectory from 1978 to 2008.
The Supreme Court of Montana now interprets the Montana Constitution as
protecting face-to-face conversations occurring in homes and vehicles and
telephone conversations from being secretly taped.
523
The extension of
protection to telephone conversations under the state constitution is significantly
broader than that provided under the Fourth Amendment.
524
The protection
provided for telephone conversations narrows the judge’s discretion to decide
whether or not to suppress a telephone conversation.
525
One could imagine that
Stewart was somewhat of a difficult case for the Supreme Court of Montana to
decide. The court had recently decided Allen and so might have been loath to
create some type of exception that would have permitted the secretly taped
telephone conversations in Stewart to be suppressed. The alleged crime in
518
State v. Allen, 241 P.3d 1045, 1058 (Mont. 2010).
519
Id. at 1049, 1080, 1082 (Nelson, J., concurring).
520
Id. at 1082, 1084–85 (Rice, J., concurring in part and dissenting in part).
521
See State v. Stewart, 291 P.3d 1187, 1191, 92 (Mont. 2012) (explaining that the Court
examination of expectation of privacy in the home and taped telephone conversations).
522
Id. at 1203.
523
Id. at 1198, 1200–01.
524
Id. at 1198; see also Apps. A, B, and C.
525
See Stewart, 291 P.3d at 1198.
2020] Privacy, Eavesdropping, and Wiretapping 59
Stewart was extremely serious: a father was accused by his daughter of sexually
abusing her for eleven years.
526
Stewart would have been even more difficult to
decide if the telephone conversations were the only evidence in the case. Perhaps
the Montana court was relieved that the harmless error ruling was available to
it.
E. North Dakota
North Dakota is a one-party consent state.
527
In 2010, in State v. Loh, the
Supreme Court of North Dakota declined to accept the suspect’s suggestion that
the court follow Goetz in interpreting the North Dakota Constitution to protect
the suspect’s conversation with an informant in the informant’s car.
528
Thus,
North Dakota provides no additional protection under the state constitution
against a conversation being secretly taped.
529
F. Pennsylvania
The Supreme Court of Pennsylvania has interpreted the search-and-seizure
provision to protect a suspect from being secretly taped when a suspect is
speaking with an informant in the suspect’s home when the police sent the
informant into the suspect’s home, but not when the suspect is speaking on the
telephone even if the suspect is in the suspect’s home.
530
In 1994, in Commonwealth v. Brion, the Supreme Court of Pennsylvania
reasoned that the key to finding the suspect’s expectation of privacy to be
reasonable was that the secretly taped conversation occurred in the suspect’s
home.
531
In 2001, in Commonwealth v. Rekasie, the secretly taped conversation
was over the telephone and the Supreme Court of Pennsylvania concluded that
this mode of communication meant that the suspect’s expectation of privacy was
not reasonable.
532
Two dissenting opinions would have found the suspect’s
expectation of privacy reasonable because, similar to Brion, the suspect was in
his home speaking on the telephone.
533
In 2014, in Commonwealth v.
Dunnavent, the lower court decision suppressing the secretly taped conversation
526
Id. at 1191.
527
See App. B.
528
State v. Loh, 780 N.W.2d 719, 723 (N.D. 2010).
529
Id. at 724.
530
Commonwealth v. Brion, 652 A.2d 287, 289 (Pa. 1994); see also Commonwealth v.
Dunnavent, 107 A.3d 29, 31 (Pa. 2014); see also Commonwealth v. Rekasie, 778 A.2d 624,
625, 631, 633 (Pa. 2001).
531
Brion, 652 A.2d at 289–90.
532
Rekasie, 778 A.2d at 625, 631, 633.
533
Id. at 637–38 (Zappala, J., dissenting) (Nigro, J., dissenting).
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was affirmed; the justices in Dunnavent were evenly split three to three as to
whether a suspect who first met the informant on the street corner and then
invited the informant into the suspect’s home had a reasonable expectation of
privacy that their conversation in his home would not be secretly taped.
534
The
crucial fact distinguishing Dunnavent from Brion for some of the justices was
that the suspect invited the informant into the suspect’s home.
535
G. Vermont
The Supreme Court of Vermont has interpreted the search-and-seizure
provision of the Vermont Constitution to protect a suspect from being secretly
taped in the suspect’s home either by an informant or by a police officer, but the
court ruled that the protection does not extend to a conversation secretly taped
in a shopping-center parking lot while the suspect and the informant each spoke
from their respective vehicles.
536
In 1991, in State v. Blow, the Supreme Court of Vermont found that the
suspect’s expectation of privacy was reasonable when an informant secretly
taped the suspect in the suspect’s home.
537
In 1991, in State v. Brooks, the
Supreme Court of Vermont found that the suspect’s expectation of privacy was
not reasonable when an informant secretly taped the suspect in a shopping-center
parking lot even though the informant and the suspect remained in their
respective vehicles.
538
The lengthy dissent was suspicious that Brooks might
permit the police to hatch a plan to induce the suspect to leave his or her home
to travel to a location in which the police could secretly tape the informant’s
conversation with the suspect.
539
In 2002, in State v. Geraw, the Supreme Court
of Vermont decided that the suspect’s expectation of privacy was still reasonable
in the suspect’s home even if the suspect knew he was speaking with police
officers.
540
A lengthy dissent opined that the suspect’s expectation of privacy
was not reasonable because the suspect knew that the individuals he invited into
the suspect’s home were police officers who were investigating the suspect’s
involvement in child sexual molestation.
541
534
Dunnavent, 107 A.3d at 30–31; see also Rekasie, 778 A.2d at 632–33 (Castille, C.J.,
in support of reversal).
535
Dunnavent, 107 A.3d at 31 (Saylor, J., in support of affirmance); see also id. at 31
(Todd, J., in support of affirmance) (Castille, C.J., in support of reversal); see also id. at 52
(Stevens, J., in support of reversal).
536
State v. Blow, 602 A.2d 552, 555, 556 (Vt. 1991).
537
Id.
538
State v. Brooks, 601 A.2d 963, 964 (Vt. 1991).
539
Id. at 965 (Morse, J., dissenting).
540
State v. Geraw, 795 A.2d 1219, 1224 (Vt. 2002).
541
Id. at 1233 (Skoglund, J., dissenting).
2020] Privacy, Eavesdropping, and Wiretapping 61
H. West Virginia
The Supreme Court of Appeals of West Virginia interpreted the search-and-
seizure provision of the West Virginia Constitution to protect a suspect’s
conversation from being secretly taped in the suspect’s home.
542
In 2007, in State v. Mullens, the Supreme Court of Appeals of West Virginia
found that the suspect’s expectation of privacy was reasonable when an
informant secretly taped the suspect and the suspect’s wife in their home.
543
The
first dissenting opinion questioned the court overruling its decision from twenty-
one years previously without providing better reasoning.
544
The second
dissenting opinion criticized the majority’s protection against secretly taping a
conversation occurring in the suspect’s home when the informant can freely take
notes of what transpired during the conversation in the home.
545
VIII. THE REASONABLE EXPECTATION STANDARD AND
INTERPRETATION OF ALL-PARTY CONSENT STATUTES
A number of all-party consent states protect face-to-face conversations only
if the conversations are private. Some states gauge whether a face-to-face
conversation is private by determining whether the complaining party has an
expectation of privacy that is reasonable. In some of the difficult cases, a court
has carefully characterized the facts when determining whether the suspect’s
expectation of privacy is reasonable, perhaps to permit the court to reach a
desired result.
A. Florida
The Florida Supreme Court has had difficulty in two cases in which a victim
secretly taped a conversation in a secluded location. In one case in which the
secret taping occurred in an office open to the public, the court found that the
suspect’s expectation of privacy was not reasonable. In another case in which
the secret taping occurred in the suspect’s bedroom, the court found that the
suspect’s expectation of privacy was reasonable.
546
In the first case, State v. Inciarrano, the court interpreted the facts in what
might be seen as a judicial exception to conclude that the murderer’s expectation
of privacy was not reasonable.
547
In Inciarrano, the murder victim apparently
542
State v. Mullens, 650 S.E.2d 169, 171, 187–188, 190 (W. Va. 2007).
543
Id. at 171, 190.
544
Id. at 171, 191–92 (Benjamin, J., dissenting).
545
Id. at 171, 214 (Maynard, J., dissenting).
546
McDade v. State, 154 So. 3d 292, 298, 300 (Fla. 2014).
547
State v. Inciarrano, 473 So. 2d 1272, 1275–76 (Fla. 1985).
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had a feeling that his meeting with the suspect was not going to go well and
began secretly taping his meeting with Inciarrano prior to Inciarrano allegedly
murdering the victim.
548
Although another tenant in the building heard faint
gunshots, and Inciarrano admitted that it was his voice on the tape, the secretly
taped information was the only evidence against Inciarrano.
549
The Florida court
concluded that Inciarrano’s expectation of privacy was not reasonable because
Inciarrano had criminal intent when Inciarrano visited the victim in the victim’s
office.
550
The trial court perhaps provided better reasoning, noting that the
victim’s office was open to the public and that the microphone would have been
visible to the suspect.
551
The first concurring opinion reasoned that someone in
another person’s home or office does not have an expectation of privacy that is
reasonable, but that person’s expectation of privacy might be reasonable if the
person was located in his or her own home or office.
552
The second concurring
opinion stated that the victim, who was a party to the conversation, could not
intercept the information.
553
The concurrence added that the suspect’s
expectation of privacy was not reasonable because the suspect was not in the
suspect’s own home.
554
The concurrence also showed the fallacy in the
majority’s reasoning: “To hold, as the majority does, that the commission of a
criminal act waives a privacy right requires an entirely new legal definition of
privacy rights which would, in turn, shake the foundation of fourth amendment
analysis.”
555
The facts of another relevant case, McDade v. State were discussed above in
section IVB.
556
Perhaps one distinction between Inciarrano and McDade was that the secretly
taped conversation was the sole piece of evidence in Inciarrano, while in
McDade there was other evidence, such as testimony, available.
557
Without the
secretly taped conversation in Inciarrano, a cold-blooded murderer would have
gone free. It is extremely unfortunate that McDade was acquitted at his second
trial.
548
Id. The victim’s premonition about the meeting was confirmed by the tone of the
conversation being that of “a business deal gone sour.” Inciarrano v. State, 447 So. 2d 386,
387 (Fla. Dist. Ct. App. 1984), quashed, 473 So. 2d 1272 (Fla. 1985).
549
Inciarrano, 447 So. 2d at 387–88, quashed, 473 So. 2d 1272 (Fla. 1985).
550
Inciarrano, 473 So. 2d at 1275–76.
551
Id. at 1274.
552
Id. at 1276 (Overton, J., concurring).
553
Id. (Ehrlich, J., concurring in result only).
554
Id.
555
Id. at 1277.
556
See infra text accompanying notes 328–39.
557
McDade v. State, 154 So. 3d 292, 295 (Fla. 2014); see also Inciarrano, 473 So. 2d at
1272.
2020] Privacy, Eavesdropping, and Wiretapping 63
B. Maryland
Even though Maryland is an all-party consent state, a suspect cannot make
offensive use of the all-party consent state where the suspect is the one who
secretly taped a conversation.
558
In 2018, in Agnew v. State, the police, pursuant to a warrant, recovered the
suspect’s cell phone, which contained a conversation between the suspect and
an unidentified person.
559
The suspect claimed that the taped cell-phone
conversation should not have been used as evidence against him because it had
been made with only one-party consent.
560
The Court of Appeals of Maryland
found that the suspect’s expectation of privacy was not reasonable because he
was the one who did the taping and concluded that the suspect’s secretly taped
telephone conversation was properly admitted.
561
C. Michigan
In Michigan, the Supreme Court of Michigan decided that someone speaking
on a cordless telephone had a reasonable expectation of privacy that the
conversation would not be overheard through a scanner. The court also found
that an expectation of privacy was not reasonable in the backstage of an arena
where there were a number of people and camera crews in the area.
562
In 2001, People v. Stone, the Supreme Court of Michigan decided whether
the estranged husband had illegally used a scanner to eavesdrop on and secretly
tape his wife’s private cordless telephone conversations.
563
The court concluded
that the wife’s expectation of privacy was reasonable because secretly accessing
her cordless telephone conversations is a felony, even if current technology
makes it possible to do so.
564
In 2011, in Bowens v. Ary, Inc. the Supreme Court
of Michigan considered whether the plaintiffs had a reasonable expectation of
privacy during their backstage meeting with the defendants at the Joe Louis
Arena when at least nine people were present, a number of individuals had
backstage passes, there were multiple camera crews nearby, and there was a
person filming in the room.
565
Based on the facts, the Michigan court agreed
with the trial court and decided as a matter of law that the plaintiffs’ claimed
558
Agnew v. State, 197 A.3d 27, 33 (Md. 2018).
559
Id. at 30.
560
Id.
561
Id. at 34–35.
562
People v. Stone, 621 N.W.2d 702, 706 (Mich. 2001); Bowens v. Ary, Inc., 794
N.W.2d 842, 843–44 (Mich. 2011).
563
Stone, 621 N.W.2d at 706.
564
Id.
565
Bowens, 794 N.W.2d at 843–44.
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expectation of privacy was not reasonable.
566
The dissent’s major disagreement
was with the Michigan court of last resort deciding that there was no reasonable
expectation of privacy as a matter of law; the dissent viewed the facts in a way
that was not as clearly cut as the majority.
567
D. Pennsylvania
The Supreme Court of Pennsylvania has yet to weigh in on an interesting case
involving whether a nanny’s expectation of privacy in the children’s bedroom
of the employer’s home is reasonable.
568
In Commonwealth v. Mason, the father suspected Mason, the children’s
nanny, of child abuse about a month after he hired her.
569
About two months
after she denied any problem, the father installed a hidden nanny camera with
video-and-audio capabilities in the children’s bedroom.
570
The hidden nanny
camera secretly taped Mason yelling at one of the children, shoving the child
into a crib, and hitting the child several times.
571
Mason was arrested and several
charges were filed against her after the father turned over the secretly taped
information to the police.
572
The intermediate appellate court found that Mason’s
expectation of privacy was reasonable because the secret taping was done in a
bedroom, and Mason had no reason to suspect that she would be secretly
taped.
573
The court affirmed the trial court’s decision to suppress the audio
portion of the recording, but it reversed as to the video portion.
574
Although the
court agreed that the audio portion of the recording should be suppressed, the
language of the decision suggests that the court was judgmental about the two-
month lapse of time between the father’s suspicion of child abuse and the
installation of the nanny camera.
575
One judge, who authored an opinion
concurring in part and dissenting in part, would not have found the nanny’s
expectation of privacy to be reasonable because the children’s home was a
workplace and the nanny was an adult not in her own home who was responsible
for young children.
576
On September 10, 2019, in Commonwealth v. Mason, the
566
Id. at 844.
567
Id. at 845–46 (Kelly, J., dissenting).
568
Commonwealth v. Mason, No. 1091 MDA 2018, 2019 WL 1084210, at *3 (Pa.
Super. Ct. Mar. 7, 2019).
569
Id. at *1.
570
Id.
571
Id.
572
Id.
573
Id. at *3.
574
Id. at *5.
575
Id.
576
Id. at *7.
2020] Privacy, Eavesdropping, and Wiretapping 65
Supreme Court of Pennsylvania granted an appeal limited to the following two
issues:
(1) Whether a babysitter has a reasonable expectation of privacy in
the bedroom of a child she is caring for?
(2) Whether the sounds resulting from a child being forcibly thrown
into a crib and being beaten by [Mason] constitute “oral
communications” or “evidence derived therefrom” under the
Pennsylvania wiretap statute?
577
E. Washington
In Washington, the Supreme Court of Washington decided that a suspect’s
expectation of privacy on a street and in the informant’s vehicle was not
reasonable, while a suspect speaking on a cordless telephone and in an upstairs
room of a private home did have a reasonable expectation of privacy.
578
In 1996, in State v. Clark, the Supreme Court of Washington determined that
individuals selling illegal drugs to strangers on the street did not have a
reasonable expectation of privacy that a government informant was not secretly
taping their conversations.
579
One justice who concurred in part and dissented in
part believed that four of the sixteen suspects who sold illegal drugs to the
informant while in the informant’s vehicle were engaging in private
conversations protected under the eavesdropping statutes.
580
In 2004, in State v. Christensen, when the suspect telephoned his girlfriend,
the girlfriend’s mother secretly listened in on the cordless telephone
conversation using the speakerphone function.
581
The Supreme Court of
Washington court found that Christensen’s expectation of privacy was
reasonable and no exception would permit a parent to listen in on a minor’s
telephone conversation.
582
In 2014, in State v. Kipp, the Supreme Court of Washington found that the
suspect’s expectation of privacy was reasonable because of the fairly short ten-
minute duration, the sensitive nature of the conversation concerning the sexual
assault of the accuser’s daughters, and the location of the conversation upstairs
in a private home between two family members and without anyone else being
present.
583
Despite the Washington Supreme Court’s holding, the facts
577
Commonwealth v. Mason, 217 A.3d 802, 803 (Pa. 2019).
578
State v. Clark, 916 P.2d 384, 387, 395 (Wash. 1996).
579
Id. at 396 (holding that brief conversations “involving strangers on a public street and
concerned the term of routine drug transactions” were not private).
580
Id. (Alexander, J., concurring in part and dissenting in part).
581
State v. Christensen, 102 P.3d 789, 790–91 (Wash. 2004).
582
Id. at 792.
583
See State v. Kipp, 317 P.3d 1029, 1035–36 (Wash. 2014) (holding the “recording
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determining whether the suspect’s expectation of privacy was reasonable is
disputable.
584
Both the trial court and the intermediate appellate court found that
the suspect’s expectation of privacy was not reasonable based on the fact that
the subject matter of the conversation was child molestation, the suspect
confessing something to the victims’ father that is not the sort to remain private,
the meeting occurring in a common area of the home, and the suspect’s offering
to later meet with the father in private.
585
Perhaps the two lower courts viewed
the facts differently because the secretly taped conversation, although not the
only evidence, was a significant piece of evidence.
586
IX. THE REASONABLE EXPECTATION STANDARD AND
INTERPRETATION OF ONE-PARTY CONSENT STATUTES
In one-party consent jurisdictions, the reasonable expectation of privacy
standard comes into play when a non-participant secretly tapes a conversation.
587
In several of the cases below, the court’s characterization of the facts might lead
one to believe that the court was reaching for a desired result.
A. Texas
In Long v. State, the Court of Criminal Appeals of Texas could have found
that the expectation of privacy was not reasonable because of the number of
people present when the coach’s speech was secretly taped.
588
In 2017, in Long v. State, was one case in which the suspect allegedly
encouraged her high school student daughter to secretly tape the girl basketball
Coach Townsend’s half-time and after-game speeches that took place in the
visitor’s locker-room.
589
The Court of Criminal Appeals of Texas found that
Coach Townsend had an expectation of privacy, and the expectation was
reasonable because the locker-room was being put to a private use, the entrance
was limited to coaches and team players, and there were two sets of doors at the
locker-room entrance.
590
It seems that the Texas court was comfortable with the
violated the privacy act and should be suppressed” because, “Kipp had both a subjective and
reasonable expectation of privacy as he was speaking in private with his brother-in-law
about a very sensitive matter”).
584
Id. at 1031.
585
State v. Kipp, 286 P.3d at 68, 75, rev’d, 317 P.3d 1029 (Wash. 2014).
586
Kipp, 286 P.3d at 71.
587
Long v. State, 535 S.W.3d at 511, 518 (Tex. Crim. App. 2017); State v. Duchow, 749
N.W.2d 913, 919–21 (Wis. 2008).
588
Long, 535 S.W.3d at 540 (Richardson, J., dissenting).
589
Id. at 515–17.
590
Id. at 530.
2020] Privacy, Eavesdropping, and Wiretapping 67
suspect mother’s conviction for secretly taping the coach’s speeches, which she
used to inform the school board about Coach Townsend’s meanness toward his
players.
591
The dissent likened the locker-room to a classroom and pointed out
that the locker-room door was open, there were three other coaches in the room,
Coach Townsend was speaking in a loud voice about player performance, and
he did not discuss game strategy.
592
Another fact noted by the dissent was that
there were a fair number of people in the locker-room, including the team
members and the various coaches, any of whom could have been secretly taping
the conversation.
593
B. Wisconsin
In State v. Duchow, the Supreme Court of Wisconsin seemed determined to
find that the school bus driver’s expectation of privacy was not reasonable
because there was no other evidence of the driver’s threats against a disabled
child.
594
In 2008, in Duchow, the Supreme Court of Wisconsin found that the public
school bus driver’s expectation of privacy was not reasonable when the suspect
allegedly made threatening statements to a disabled child on the suspect’s bus
when these statements were secretly taped by a voice-activated device hidden
by the child’s parents in the child’s backpack.
595
The reasoning was that the
location of the secret taping was a public school bus, the suspect and the child
could be seen through the school bus windows, and the alleged threats were
likely to be reported.
596
The Wisconsin court explained, “because Duchow’s
statements were made on a public school bus, being used for the public purpose
of transporting school children; because they were threats to harm Jacob for
which Duchow assumed the risk that Jacob would report, Duchow had no
reasonable expectation of privacy in his statements.”
597
There would have been several potential problems in presenting evidence of
Duchow’s allegedly threatening statements, had the Supreme Court of
Wisconsin ruled that the secretly taped statements were oral communication.
598
Wisconsin does permit secret taping of a private conversation with one-party’s
591
Id. at 516–17.
592
Id. at 540–41 (Richardson, J., dissenting).
593
Id.
594
State v. Duchow, 749 N.W.2d 913, 915 (Wis. 2008).
595
Id. at 925 (holding that Duchow’s statements did not “constitute ‘oral
communication’ as defined by the Electronic Surveillance Control Law” because they were
made on a public-school bus and Duchow “assumed the risk that Jacob would report,”
therefore, Duchow had “no reasonable expectation of privacy in his statements.”).
596
Id. at 923.
597
Id. at 925.
598
Id. at 915.
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consent.
599
However, it appears from the facts that the child’s parents placed the
voice-activated device in the child’s backpack, perhaps without the child’s
consent.
600
Had the court decided that the conversation was private, the court
would have had to address whether the parents could have consented on behalf
of the child.
601
Although the Wisconsin statutes permit secret taping with one
party’s consent, the statutes limit disclosure, in most instances, to testimony
about the taped information rather than disclosure of the taped information
itself.
602
In addition, the testimony must be related to a felony, and the one who
consented must be available to testify, or a witness must be available to
authenticate the taping.
603
Duchow and the child were the only ones on the
school bus when Duchow made the statements,
604
so there was no one else
besides the child who could provide testimony. The child was nine and suffered
from Down syndrome and attention-deficit/hyperactivity disorder; for those
reasons, the child may have been incapable of testifying.
605
X. CONCLUSION
In the mid-twentieth century, what legislators perceived to be the problem
was secret taping of conversations. One-party consent statutes and all-party
consent statutes were two broad pathways for legislation to deal with the
problem of secret taping. At the time, legislators may not have been cognizant
of the social consequences of the chosen legislative path. In addition, six state
courts of last resort have interpreted their state constitutions to require all-party
consent in certain circumstances, primarily when an informant or police officer
secretly tapes a suspect’s conversation in the suspect’s home.
If a state legislature had a clean slate to write on and it wanted to adopt
eavesdropping and wiretapping statutes, what type of statutes would be the most
appropriate? Vermont is the only state that does not have eavesdropping and
wiretapping statutes. If Vermont were to adopt eavesdropping and wiretapping
statutes,
606
should the state go down the all-party consent path or the one-party
consent path? The Vermont legislature would do well to review eavesdropping
and wiretapping statutes in other states along with case-law interpretation of
those statutes to determine how the new statutes should be structured and what
599
WIS. STAT. ANN. § 968.29(1) (West 2019).
600
Duchow, 749 N.W.2d at 916.
601
Id. at 925 n.4.
602
WIS. STAT. ANN. § 968.29(3)(a) (West 2019).
603
§ 968.29(3)(b).
604
Duchow, 749 N.W.2d at 925.
605
Id. at 915.
606
See Clarisse, supra note 260, at 369.
2020] Privacy, Eavesdropping, and Wiretapping 69
exceptions would be advisable to include.
With the prevalence of technology all around us, it might be best for a state
to adopt one-party consent statutes. If the statutes were to contain wording
similar to the federal statutes, federal case-law might help in interpreting state
statutes. All-party consent statutes do provide more protection to the parties
having an intimate conversation, but there are serious costs involved, such as
criminalizing otherwise innocent behavior and not permitting secret taping to
gather evidence that would be socially acceptable to secure. If desired, all-party
consent can be required for conversations taking place in a home.
As one can see by the case-law examples provided in this paper, neither all-
party consent nor one-party consent statutes are trouble-free. Judges in both all-
party consent and one-party consent jurisdictions have had to use their leeway
under the reasonable expectation of privacy standard to arrive at what at the time
seemed to be the most appropriate solution, perhaps in doing so creating a case-
law exception. The following two paragraphs provide some information on a
case-law exception from an all-party consent state and a case-law exception
from a one-party consent state.
State v. Inciarrano is the prime case applying the reasonable expectation
standard in an all-party consent state because had Inciarrano’s expectation of
privacy have been found to be reasonable, the sole piece of evidence of the
murder would have had to be excluded.
607
It would have been logical to find
that Inciarrano’s expectation of privacy was reasonable, given that the murder
victim worked as a psychologist and marriage counselor whose office was set
up to be fairly secluded to ensure the client’s confidences were private and,
presumably, no one saw Inciarrano enter or leave the victim’s office.
608
The
Supreme Court of Florida fashioned what amounted to a case-law exception
when the court found that Inciarrano’s expectation of privacy was not
reasonable.
State v. Duchow
609
is the prime case applying the reasonable expectation
standard in a one-party consent state because, had Duchow’s expectation of
privacy have been found to be reasonable, the sole piece of evidence of the bus
driver’s threats against the disabled child would have had to be excluded.
610
It
would have been logical to find that Duchow’s expectation of privacy was
reasonable, given that the bus driver and the child were the only people on the
bus and there was no one else in the vicinity who could have overheard the
threats. The Supreme Court of Wisconsin fashioned what amounted to a case-
607
State v. Inciarrano, 473 So. 2d 1272, 1275–76 (Fla. 1985).
608
Inciarrano, 447 So. 2d at 386, 387 (Fla. Dist. Ct. App. 1984), quashed, 473 So. 2d
1272 (Fla. 1985).
609
State v. Duchow, 749 N.W.2d 913, 925 (Wis. 2008).
610
Id.
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law exception when the court found Duchow’s expectation of privacy was not
reasonable.
All-party consent statutes assume that secret taping done by a party to the
conversation is as intrusive as that done by a non-party. All-party consent
statutes also assume that the person secretly taping is doing so with malicious
intentions. However, a party to a conversation is free to divulge the substance of
the conversation to others or testify about what transpired in the conversation.
Perhaps one aim of all-party consent statutes was to preserve a trusting
relationship between the parties to the conversation. The aim is not achieved by
all-party consent statutes because there is always a danger that the conversation
is subject to disclosure by one party by that party telling others about the
conversation. All-party statutes are a type of legislation adopted with the best of
intentions but as applied, produce results the legislature would not have
imagined. The misguided result of legislation is only apparent when a judge is
faced with applying the statute to a live controversy before the judge that forces
the judge to deal with the hard case. All-party consent statutes are anachronistic
in light of each cell-phone owner being able to easily secretly tape an otherwise
private conversation and other taping devices in wide use. With the prevalence
of surveillance devices and cell phones, one may have reason to think that it is
more likely than not that one’s conversation is being secretly taped.
The person desiring privacy may be engaging in unsavory or illegal behavior.
All-party consent statutes value privacy over an individual’s attempt to gather
information, even in a circumstance in which the nefarious actions of the person
desiring privacy would be difficult to prove without secretly taping the
exchange. The action of secretly taping a conversation may be socially beneficial
because it may provide evidence not easily refutable of domestic violence,
abuse, discrimination, or criminal activity. The victim of criminal activity may
not be sufficiently knowledgeable to seek law-enforcement involvement, which,
in most all-party consent states, would make the secret taping legal. All-party
consent statutes also penalize the secret gathering of such information by
criminalizing the activity of the person performing the secret taping. All-party
consent statutes can be used by a suspect to prevent incriminating evidence from
being disclosed. If the secretly taped information is the only evidence against
the suspect, the non-disclosure may prevent a guilty suspect from being
convicted of a horrendous crime. Some view all-party consent so problematic
that they have opined that states requiring all-party consent should replace their
statutes with one-party consent statutes.
611
One’s home has long been regarded
differently than other locations, and one may feel another order of violation
611
Rauvin Johl, Reassessing Wiretap and Eavesdropping Statutes: Making One-Party
Consent the Default, 12 HARV. L. & POL’Y REV. 177 (2018).
2020] Privacy, Eavesdropping, and Wiretapping 71
should the person’s conversation be secretly taped in one’s home. Given the
long-standing privacy protection provided when one is in one’s home, all-party
consent may be most acceptably required for the home.
As described in this article, privacy in communication is protected by
statutory and constitutional provisions. Although the necessity for this
protection is widely recognized, the protection is far from uniform throughout
the country. One difficulty in implementing this safeguard is posed by statutes
designed to protect privacy but which judges have discretion in applying in
interpreting whether a speaker’s expectation of privacy is reasonable. Another
difficulty in safeguarding the privacy of communication is the constant advances
in technology that make it easier as time goes on to invade one’s communication
privacy. Communication privacy deserves continued protection and the way in
which the law provides this protection will continue to evolve.
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APPENDIX A
State Constitutional Provisions and State Statutes
Alabama
ALA. CONST. art. I, § 5. Unreasonable search and seizure; search warrants.
ALA. CODE §§ 13A-11-30 to -37 (2020).
Alaska
ALASKA CONST. art. I, § 14. Searches and Seizures.
ALASKA CONST. art. I, § 22. Right of Privacy: “The right of the people to privacy
is recognized and shall not be infringed. The legislature shall implement this
section.” Id.
Cowles v. State, 23 P.3d 1168 (Alaska. 2001) The Alaska Supreme Court did
not extend Glass protection to the box office of a movie theater in a theft
investigation. See long dissent.
State v. Glass, 583 P.2d 872, 881 (Alaska 1978) (“Alaska's Constitution
mandates that its people be free from invasions of privacy by means of
surreptitious monitoring of conversations.”).
ALASKA STAT. ANN. §§ 12.37.010-.130, 42.20.300-.390 (West 2020).
Arizona
ARIZ. CONST. art. II, § 8. Right to privacy: “No person shall be disturbed in his
private affairs, or his home invaded, without authority of law.” Id.
ARIZ. REV. STAT. ANN. §§ 12-731, 13-3005 to -3016 (2020).
Arkansas
2020] Privacy, Eavesdropping, and Wiretapping 73
ARK. CONST. art. 2, § 15. Searches and seizures.
ARK. CODE ANN. §§ 5-60-120, 23-17-107 (West 2020).
California
CAL. CONST. art. I, § 1. Inalienable rights: “All people are by nature free and
independent and have inalienable rights. Among these are enjoying and
defending life and liberty, acquiring, possessing, and protecting property, and
pursuing and obtaining safety, happiness, and privacy.”
CAL. CONST. art. I, § 13. Searches and seizures; warrant.
CAL. PENAL CODE §§ 630, 632.1, 632.5-637.2 (West 2020); CAL. PENAL CODE
§§ 630a, 630b, 631a-631e, 632a, 632(4) (West 2020) (repealed); CAL. PENAL
CODE §§ 631, 632 (West 2020) (held unconstitutional).
People v. Guzman, 453 P.3d 1130 (Cal. 2019) (holding § 632(d)
unconstitutional).
People v. Algire, 165 Cal.Rptr.3d 650 (Cal. Ct. App. 2013) (holding § 631(c)
unconstitutional).
Colorado
COLO. CONST. art. II, § 7. Security of person and property—searches—seizures-
-warrants.
COLO. REV. STAT. ANN. §§ 16-15-101 to -104, 18-9-301 to -305 (West 2020).
Connecticut
CONN. CONST. art. 1, § 7. Security from searches and seizures.
CONN. GEN. STAT. ANN. §§ 52-184a, 52-570d, 53a-187 to -189, 54-41a to -41u
(West 2020).
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Delaware
DEL. CONST. art. I, § 6. Searches and seizures.
DEL. CODE ANN. tit. 11, §§ 2401-2412 (West 2020).
Florida
FLA. CONST. art. I, § 12. Searches and Seizures:
The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures, and against the
unreasonable interception of private communications by any means,
shall not be violated. No warrant shall be issued except upon probable
cause, supported by affidavit, particularly describing the place or places
to be searched, the person or persons, thing or things to be seized, the
communication to be intercepted, and the nature of the evidence to be
obtained. This right shall be construed in conformity with the 4th
Amendment to the United States Constitution, as interpreted by the
United States Supreme Court. Articles or information obtained in
violation of this right shall not be admissible in evidence if such articles
or information would be inadmissible under decisions of the United
State Supreme Court construing the 4th Amendment to the United
States Constitution.
FLA. CONST. art. I, § 23. Right of privacy: “Every natural person has the right to
be let alone and free from governmental intrusion into his private life except as
otherwise provided herein. This section shall not be construed to limit the
public’s right of access to public records and meetings as provided by law.” Id.
FLA. STAT. §§ 934.01-.10 (2019).
Georgia
GA. CONST. art. 1, § 1, ¶ XIII. Searches, seizures, and warrants.
GA. CODE ANN. §§ 16-11-60 to -69 (West 2020).
2020] Privacy, Eavesdropping, and Wiretapping 75
Hawaii
HAW. CONST. art. I, § 6. Right to Privacy: “The right of the people to privacy is
recognized and shall not be infringed without the showing of a compelling state
interest. The legislature shall take affirmative steps to implement this right.”
HAW. CONST. art. I, § 7. Searches, Seizures and Invasion of Privacy:
The right of the people be secure in their persons, houses, papers and
effects against unreasonable searches, seizures and invasions of privacy
shall not be violated; and no warrants shall issue but upon probable
cause, supported by oath or affirmation, and particularly describing the
place to be searched and the persons or things to be seized or the
communications sought to be intercepted.
HAW. REV. STAT. ANN. §§ 711-1111, 803-41 to -49 (West 2019).
Idaho
IDAHO CONST. art. I, § 17. Unreasonable searches and seizures prohibited.
IDAHO CODE ANN. §§ 18-6701 to -6709 (West 2020).
Illinois
ILL. CONST. art. I, § 6. Searches, Seizures, Privacy and Interceptions:
The people shall have the right to be secure in their persons, houses,
papers and other possessions against unreasonable searches, seizures,
invasions of privacy or interceptions of communications by
eavesdropping devices or other means. No warrant shall issue without
probable cause, supported by affidavit particularly describing the place
to be searched and the persons or things to be seized.
ILL. CONST. art. I, § 12. Right to Remedy and Justice: “Every person shall find
a certain remedy in the laws for all injuries and wrongs which he receives to his
person, privacy, property or reputation. He shall obtain justice by law, freely,
completely, and promptly.”
720 ILL. COMP. STAT. ANN. §§ 5/14-1 to -9, 725 ILL. COMP. STAT. ANN. §§
5/108A-5/108B (West 2020).
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Indiana
IND. CONST. art. I, § 11. Unreasonable search or seizure.
IND. CODE ANN. §§ 35-31.5-2-110, 35-31.5-2-176, 35-33.5-2-1. to -5-6. (West
2020).
Iowa
IOWA CONST. art. I, § 8. Personal security--search and seizures.
IOWA CODE ANN. §§ 808B.1.-.8. (West 2020).
Kansas
KAN. CONST. BILL OF RIGHTS § 15. Search and seizure.
KAN. STAT. ANN. §§ 21-6101, 22-2514 to -2519 (West 2020) .
Kentucky
KY. CONST. BILL OF RIGHTS § 10. Security from search and seizure; conditions
of issuance of warrant.
KY. REV. STAT. ANN. §§ 526.010-.080 (West 2020).
Louisiana
LA. CONST. art. I, § 5. Right to Privacy
Every person shall be secure in his person, property, communications,
houses, papers, and effects against unreasonable searches, seizures, or
invasions of privacy. No warrant shall issue without probable cause
supported by oath or affirmation, and particularly describing the place
to be searched, the persons or things to be seized, and the lawful purpose
or reason for the search. Any person adversely affected by a search or
2020] Privacy, Eavesdropping, and Wiretapping 77
seizure conducted in violation of this Section shall have standing to
raise its illegality in the appropriate court.
LA. STAT. ANN. §§ 15:1302-:1312.1 (2019).
Maine
ME. CONST. art. I, § 5. Unreasonable searches prohibited.
ME. REV. STAT. ANN. tit. 15, §§ 709-713, tit. 17-A, § 511 (2019).
Maryland
MD. CONST. DECLARATION OF RIGHTS art. XXVI. Warrants for search and
seizure
MD. CODE ANN., CTS. & JUD. PROC. §§ 10-401 to -414 (West 2020).
Massachusetts
MASS. CONST. pt. 1, art. xiv. Freedom from unreasonable searches and seizures;
warrants.
MASS. GEN. LAWS ANN. ch. 272, § 99 (West 2020).
Michigan
MICH. CONST. art. I, § 11. Searches and seizures.
MICH. COMP. LAWS ANN. §§ 750.539a-.539i (West 2020).
Minnesota
MINN. CONST. art. I, § 10. Unreasonable searches and seizures prohibited.
MINN. STAT. ANN. §§ 626A.01-.20, 626A.25 (West 2020).
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Mississippi
MISS. CONST. art. 3, § 23. Searches and seizures.
MISS. CODE ANN. §§ 41-29-501 to -536 (West 2020).
Missouri
MO. CONST. art. I, § 15. Unreasonable search and seizure prohibited-- contents
and basis of warrants.
MO. ANN. STAT. §§ 542.400-.422 (West 2019).
Montana
MONT. CONST. art. II, § 10. Right of Privacy: “The right of individual privacy is
essential to the well-being of a free society and shall not be infringed without
the showing of a compelling state interest.” Id.
MONT. CONST. art. II, § 11. Searched and seizures:
The people shall be secure in their persons, papers, homes and effects
from unreasonable searches and seizures. No warrant to search any
place, or seize any person or thing shall issue without describing the
place to be searched or the person or thing to be seized, or without
probable cause, supported by oath or affirmation reduced to writing.
MONT. CODE ANN. § 45-8-213 (West 2019).
Nebraska
NEB. CONST. art. I, § 7. Search and seizure.
NEB. REV. STAT. ANN. §§ 86-271 to -297 (West 2020).
2020] Privacy, Eavesdropping, and Wiretapping 79
Nevada
NEV. CONST. art. 1, § 18. Unreasonable seizure and search; issuance of warrants.
NEV. REV. STAT. ANN. §§ 179.410-.515, 200.610-.690, 209.419, 704.195 (West
2019).
New Hampshire
N.H. CONST. pt. 1, art. 2-b. Right to Privacy: “An individual's right to live free
from governmental intrusion in private or personal information is natural,
essential, and inherent.”
N.H. CONST. pt. 1, art. 19. Searches and Seizures Regulated.
N.H. REV. STAT. ANN. §§ 570-A:1-:11, 644:9 (2020).
New Jersey
N.J. CONST. art. I, ¶ 7. Freedom from unreasonable searches and seizures;
warrant.
N.J. REV. STAT. ANN. §§ 2A:156A-1 to -26 (West 2020).
New Mexico
N.M. CONST. art. II, § 10. Searches and seizures.
N.M. STAT. ANN. §§ 30-12-1 to -11 (West 2020).
New York
N.Y. CONST. art. I, § 12. Securing against unreasonable searches, seizures and
interceptions:
The right of the people to be secure in their persons, houses, papers and
effects, against unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon probable cause,
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supported by oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
The right of the people to be secure against unreasonable interception
of telephone and telegraph communications shall not be violated, and
ex parte orders or warrants shall issue only upon oath or affirmation that
there is reasonable ground to believe that evidence of crime may be thus
obtained, and identifying the particular means of communication, and
particularly describing the person or persons whose communications
are to be intercepted and the purpose thereof.
N.Y. C.P.L.R. 4506 (McKinney 2019); N.Y. CRIM. PROC. §§ 700.05-.70, 710.10
(McKinney 2019); N.Y. PENAL LAW §§ 250.00-.35 (McKinney 2019).
North Carolina
N.C. CONST. art. I, § 20. General warrants.
N.C. GEN. STAT. ANN. §§ 15A-286 to -298 (West 2019).
North Dakota
N.D. CONST. art. I, § 8.
N.D. CENT. CODE ANN. §§ 12.1-15-02 to -04, 29.29.2-01 to -05 (West 2020).
Ohio
OHIO CONST. art. I, § 14. Search and seizure.
OHIO REV. CODE ANN. §§ 2933.51-.66 (West 2020).
Oklahoma
OKLA. CONST. art. II, § 30. Unreasonable searches or seizures--Warrants,
issuance of.
2020] Privacy, Eavesdropping, and Wiretapping 81
OKLA. STAT. ANN. tit. 13, §§ 176.1-.14 (West 2020).
Oregon
OR. CONST. art. I, § 9. Unreasonable searches or seizures.
OR. REV. STAT. ANN. §§ 133.721-.739, 165.535-.549 (West 2020).
Pennsylvania
PA. CONST. art. I, § 8. Security from searches and seizures.
18 PA. STAT. AND CONS. STAT. ANN. §§ 5703-5728 (West 2020).
Rhode Island
R.I. CONST. art. I, § 6. Search and seizure.
R.I. GEN. LAWS ANN. §§ 11-35-21 to -25, 12-5.1-1 to -16 (West 2020).
South Carolina
S.C. CONST. art. I, § 10. Searches and seizures; invasions of privacy:
The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures and unreasonable
invasions of privacy shall not be violated, and no warrants shall issue
but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, the person or thing to
be seized, and the information to be obtained.
S.C. CODE ANN. §§ 17-30-10 to -145 (2020).
South Dakota
S.D. CONST. art. VI, § 11. Search and seizure.
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S.D. CODIFIED LAWS §§ 23A-35A-1 to -21 (2020).
Tennessee
TENN. CONST. art. I, § 7. Searches and seizures; warrants.
TENN. CODE ANN. §§ 39-13-601 to -604, 40-6-301 to -310 (West 2020).
Texas
TEX. CONST. art. 1, § 9. Searches and seizures.
TEX. CODE CRIM. PRO. ANN. art. 18A-.001 to -.553 (West 2019); TEX. PENAL
CODE ANN. § 16.02 (West 2019).
Utah
UTAH CONST. art. I, § 14. Unreasonable searches forbidden--Issuance of
warrant.
UTAH CODE ANN. §§ 76-9-401 to -406, 77-23a-1 to -12 (West 2020).
Vermont
VT. CONST., ch. I, art. 11. Search and seizure regulated.
No statute.
Virginia
VA. CONST. art. I, § 10. General warrants of search or seizure prohibited.
VA. CODE ANN. §§ 19.2-61 to -70 (West 2019).
2020] Privacy, Eavesdropping, and Wiretapping 83
Washington
WASH. CONST. art. 1, § 7. Invasion of Private Affairs or Home Prohibited: “No
person shall be disturbed in his private affairs, or his home invaded, without
authority of law.” Id.
WASH. REV. CODE ANN. §§ 9.73.030-.240 (West 2020).
West Virginia
W. VA. CONST. art. III, § 6. Unreasonable searches and seizures prohibited.
W. VA. CODE ANN. §§ 62-1D-1 to -16, 62-1F-1 to -9 (West 2020).
Wisconsin
WIS. CONST. art. I, § 11. Searches and seizures.
WIS. STAT. ANN. §§ 885.365, 968.27-968.33 (West 2019).
Wyoming
WYO. CONST. art. 1, § 4. Security against search and seizure.
WYO. STAT. ANN. §§ 7-3-701 to -712 (West 2020).
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Appendix B (continued)
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Appendix B (continued)
2020] Privacy, Eavesdropping, and Wiretapping 87
APPENDIX C
Applicable Provisions of State Wiretapping and Eavesdropping Statutes
California
California Penal Code section 632.5 provides in pertinent part:
(a) Every person who, maliciously and without the consent of all parties
to the communication, intercepts, receives, or assists in intercepting or
receiving a communication transmitted between cellular radio
telephones or between any cellular radio telephone and a landline
telephone shall be punished by a fine not exceeding two thousand five
hundred dollars ($2,500), by imprisonment in the county jail not
exceeding one year or in the state prison, or by both that fine and
imprisonment.
CAL. PENAL CODE § 632.5 (West 2020).
Connecticut
Connecticut General Statutes Annotated section 52-570d provides in pertinent
part:
(a) No person shall use any instrument, device or equipment to record
an oral private telephonic communication unless the use of such
instrument, device or equipment (1) is preceded by consent of all parties
to the communication and such prior consent either is obtained in
writing or is part of, and obtained at the start of, the recording, or (2) is
preceded by verbal notification which is recorded at the beginning and
is part of the communication by the recording party, or (3) is
accompanied by an automatic tone warning device which automatically
produces a distinct signal that is repeated at intervals of approximately
fifteen seconds during the communication while such instrument,
device or equipment is in use.
(b) The provisions of subsection (a) of this section shall not apply to:
(1) Any federal, state or local criminal law enforcement official or agent
of any such official who in the lawful performance of such official or
agent's duties, or at the request or direction of such official or agent in
the performance of such official or agent's duties, records telephonic
communications; [and] (3) Any person who, as the recipient of a
telephonic communication which conveys threats of extortion, bodily
harm or other unlawful requests or demands, records such telephonic
communication . . . .
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CONN. GEN. STAT. ANN. § 52-570d (West 2020).
Florida
Florida Statutes section 934.03 provides in pertinent part:
(1) Except as otherwise specifically provided in this chapter, any person
who:
(a) Intentionally intercepts, endeavors to intercept, or procures any
other person to intercept or endeavor to intercept any wire, oral, or
electronic communication;
(b) Intentionally uses, endeavors to use, or procures any other person to
use or endeavor to use any electronic, mechanical, or other device to
intercept any oral communication when:
1. Such device is affixed to, or otherwise transmits a signal through, a
wire, cable, or other like connection used in wire communication; or
2. Such device transmits communications by radio or interferes with the
transmission of such communication;
(c) Intentionally discloses, or endeavors to disclose, to any other person
the contents of any wire, oral, or electronic communication, knowing or
having reason to know that the information was obtained through the
interception of a wire, oral, or electronic communication in violation of
this subsection; [or]
(d) Intentionally uses, or endeavors to use, the contents of any wire,
oral, or electronic communication, knowing or having reason to know
that the information was obtained through the interception of a wire,
oral, or electronic communication in violation of this subsection
. . . .
shall be punished as provided in subsection (4).
(2) . . .
(c) It is lawful under this section and §§ 934.04-934.09 for an
investigative or law enforcement officer or a person acting under the
direction of an investigative or law enforcement officer to intercept a
wire, oral, or electronic communication when such person is a party to
the communication or one of the parties to the communication has given
prior consent to such interception and the purpose of such interception
is to obtain evidence of a criminal act.
(d) It is lawful under this section and §§ 934.04-934.09 for a person to
intercept a wire, oral, or electronic communication when all of the
parties to the communication have given prior consent to such
interception.
(e) It is unlawful to intercept any wire, oral, or electronic
communication for the purpose of committing any criminal act.
2020] Privacy, Eavesdropping, and Wiretapping 89
FLA. STAT. § 934.03 (2019).
Illinois
720 Illinois Compiled Statutes section 5/14-1 provides in pertinent part:
(d) Private conversation.
For the purposes of this Article, “private conversation” means any oral
communication between 2 or more persons, whether in person or
transmitted between the parties by wire or other means, when one or
more of the parties intended the communication to be of a private nature
under circumstances reasonably justifying that expectation. A
reasonable expectation shall include any expectation recognized by law,
including, but not limited to, an expectation derived from a privilege,
immunity, or right established by common law, Supreme Court rule, or
the Illinois or United States Constitution.
720 Illinois Compiled Statutes section 5/14-2 provides in pertinent part:
(a) A person commits eavesdropping when he or she knowingly and
intentionally:
(1) Uses an eavesdropping device, in a surreptitious manner, for the
purpose of overhearing, transmitting, or recording all or any part of any
private conversation to which he or she is not a party unless he or she
does so with the consent of all of the parties to the private conversation
. . . .
720 Illinois Compiled Statutes section 5/14-3 provides in pertinent part:
The following activities shall be exempt from the provisions of this
Article: . . .
(g) With prior notification to the State's Attorney of the county in which
it is to occur, recording or listening with the aid of any device to any
conversation where a law enforcement officer, or any person acting at
the direction of law enforcement, is a party to the conversation and has
consented to it being intercepted or recorded under circumstances
where the use of the device is necessary for the protection of the law
enforcement officer or any person acting at the direction of law
enforcement, in the course of an investigation of a forcible felony, a
felony offense of involuntary servitude, involuntary sexual servitude of
a minor, or trafficking in persons under Section 10-9 of this Code, an
offense involving prostitution, solicitation of a sexual act, or pandering,
a felony violation of the Illinois Controlled Substances Act, a felony
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violation of the Cannabis Control Act, a felony violation of the
Methamphetamine Control and Community Protection Act, any
“streetgang related” or “gang-related” felony as those terms are defined
in the Illinois Streetgang Terrorism Omnibus Prevention Act, or any
felony offense involving any weapon listed in paragraphs (1) through
(11) of subsection (a) of Section 24-1 of this Code. Any recording or
evidence derived as the result of this exemption shall be inadmissible in
any proceeding, criminal, civil or administrative, except (i) where a
party to the conversation suffers great bodily injury or is killed during
such conversation, or (ii) when used as direct impeachment of a witness
concerning matters contained in the interception or recording. The
Director of the Department of State Police shall issue regulations as are
necessary concerning the use of devices, retention of tape recordings,
and reports regarding their use; . . .
(g-6) With approval of the State's Attorney of the county in which it is
to occur, recording or listening with the aid of any device to any
conversation where a law enforcement officer, or any person acting at
the direction of law enforcement, is a party to the conversation and has
consented to it being intercepted or recorded in the course of an
investigation of child pornography, aggravated child pornography,
indecent solicitation of a child, luring of a minor, sexual exploitation of
a child, aggravated criminal sexual abuse in which the victim of the
offense was at the time of the commission of the offense under 18 years
of age, or criminal sexual abuse by force or threat of force in which the
victim of the offense was at the time of the commission of the offense
under 18 years of age. In all such cases, an application for an order
approving the previous or continuing use of an eavesdropping device
must be made within 48 hours of the commencement of such use. In the
absence of such an order, or upon its denial, any continuing use shall
immediately terminate. The Director of State Police shall issue rules as
are necessary concerning the use of devices, retention of recordings, and
reports regarding their use. Any recording or evidence obtained or
derived in the course of an investigation of child pornography,
aggravated child pornography, indecent solicitation of a child, luring of
a minor, sexual exploitation of a child, aggravated criminal sexual abuse
in which the victim of the offense was at the time of the commission of
the offense under 18 years of age, or criminal sexual abuse by force or
threat of force in which the victim of the offense was at the time of the
commission of the offense under 18 years of age shall, upon motion of
the State's Attorney or Attorney General prosecuting any case involving
child pornography, aggravated child pornography, indecent solicitation
of a child, luring of a minor, sexual exploitation of a child, aggravated
criminal sexual abuse in which the victim of the offense was at the time
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of the commission of the offense under 18 years of age, or criminal
sexual abuse by force or threat of force in which the victim of the
offense was at the time of the commission of the offense under 18 years
of age be reviewed in camera with notice to all parties present by the
court presiding over the criminal case, and, if ruled by the court to be
relevant and otherwise admissible, it shall be admissible at the trial of
the criminal case. Absent such a ruling, any such recording or evidence
shall not be admissible at the trial of the criminal case;
(h) Recordings made simultaneously with the use of an in-car video
camera recording of an oral conversation between a uniformed peace
officer, who has identified his or her office, and a person in the presence
of the peace officer whenever (i) an officer assigned a patrol vehicle is
conducting an enforcement stop; or (ii) patrol vehicle emergency lights
are activated or would otherwise be activated if not for the need to
conceal the presence of law enforcement.
For the purposes of this subsection (h), “enforcement stop” means an
action by a law enforcement officer in relation to enforcement and
investigation duties, including but not limited to, traffic stops,
pedestrian stops, abandoned vehicle contacts, motorist assists,
commercial motor vehicle stops, roadside safety checks, requests for
identification, or responses to requests for emergency assistance;
(h-5) Recordings of utterances made by a person while in the presence
of a uniformed peace officer and while an occupant of a police vehicle
including, but not limited to, (i) recordings made simultaneously with
the use of an in-car video camera and (ii) recordings made in the
presence of the peace officer utilizing video or audio systems, or both,
authorized by the law enforcement agency;
(h-10) Recordings made simultaneously with a video camera recording
during the use of a taser or similar weapon or device by a peace officer
if the weapon or device is equipped with such camera;
(h-15) Recordings made under subsection (h), (h-5), or (h-10) shall be
retained by the law enforcement agency that employs the peace officer
who made the recordings for a storage period of 90 days, unless the
recordings are made as a part of an arrest or the recordings are deemed
evidence in any criminal, civil, or administrative proceeding and then
the recordings must only be destroyed upon a final disposition and an
order from the court. Under no circumstances shall any recording be
altered or erased prior to the expiration of the designated storage period.
Upon completion of the storage period, the recording medium may be
erased and reissued for operational use;
(i) Recording of a conversation made by or at the request of a person,
not a law enforcement officer or agent of a law enforcement officer,
who is a party to the conversation, under reasonable suspicion that
another party to the conversation is committing, is about to commit, or
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has committed a criminal offense against the person or a member of his
or her immediate household, and there is reason to believe that evidence
of the criminal offense may be obtained by the recording; . . .
(k) Electronic recordings, including but not limited to, a motion picture,
videotape, digital, or other visual or audio recording, made of a
custodial interrogation of an individual at a police station or other place
of detention by a law enforcement officer under Section 5-401.5 of the
Juvenile Court Act of 1987 or Section 103-2.1 of the Code of Criminal
Procedure of 1963;
(l) Recording the interview or statement of any person when the person
knows that the interview is being conducted by a law enforcement
officer or prosecutor and the interview takes place at a police station
that is currently participating in the Custodial Interview Pilot Program
established under the Illinois Criminal Justice Information Act; . . .
(n) Recording or listening to an audio transmission from a microphone
placed by a person under the authority of a law enforcement agency
inside a bait car surveillance vehicle while simultaneously capturing a
photographic or video image;
(o) The use of an eavesdropping camera or audio device during an
ongoing hostage or barricade situation by a law enforcement officer or
individual acting on behalf of a law enforcement officer when the use
of such device is necessary to protect the safety of the general public,
hostages, or law enforcement officers or anyone acting on their behalf;
. . .
(q)(1) With prior request to and written or verbal approval of the State's
Attorney of the county in which the conversation is anticipated to occur,
recording or listening with the aid of an eavesdropping device to a
conversation in which a law enforcement officer, or any person acting
at the direction of a law enforcement officer, is a party to the
conversation and has consented to the conversation being intercepted or
recorded in the course of an investigation of a qualified offense. The
State's Attorney may grant this approval only after determining that
reasonable cause exists to believe that inculpatory conversations
concerning a qualified offense will occur with a specified individual or
individuals within a designated period of time.
(2) Request for approval. To invoke the exception contained in this
subsection (q), a law enforcement officer shall make a request for
approval to the appropriate State's Attorney. The request may be written
or verbal; however, a written memorialization of the request must be
made by the State's Attorney. This request for approval shall include
whatever information is deemed necessary by the State's Attorney but
shall include, at a minimum, the following information about each
2020] Privacy, Eavesdropping, and Wiretapping 93
specified individual whom the law enforcement officer believes will
commit a qualified offense:
(A) his or her full or partial name, nickname or alias;
(B) a physical description; or
(C) failing either (A) or (B) of this paragraph (2), any other supporting
information known to the law enforcement officer at the time of the
request that gives rise to reasonable cause to believe that the specified
individual will participate in an inculpatory conversation concerning a
qualified offense.
(3) Limitations on approval. Each written approval by the State's
Attorney under this subsection (q) shall be limited to:
(A) a recording or interception conducted by a specified law
enforcement officer or person acting at the direction of a law
enforcement officer;
(B) recording or intercepting conversations with the individuals
specified in the request for approval, provided that the verbal approval
shall be deemed to include the recording or intercepting of
conversations with other individuals, unknown to the law enforcement
officer at the time of the request for approval, who are acting in
conjunction with or as co-conspirators with the individuals specified in
the request for approval in the commission of a qualified offense;
(C) a reasonable period of time but in no event longer than 24
consecutive hours;
(D) the written request for approval, if applicable, or the written
memorialization must be filed, along with the written approval, with the
circuit clerk of the jurisdiction on the next business day following the
expiration of the authorized period of time, and shall be subject to
review by the Chief Judge or his or her designee as deemed appropriate
by the court.
(3.5) The written memorialization of the request for approval and the
written approval by the State's Attorney may be in any format, including
via facsimile, email, or otherwise, so long as it is capable of being filed
with the circuit clerk.
(3.10) Beginning March 1, 2015, each State's Attorney shall annually
submit a report to the General Assembly disclosing:
(A) the number of requests for each qualified offense for approval under
this subsection; and
(B) the number of approvals for each qualified offense given by the
State's Attorney.
(4) Admissibility of evidence. No part of the contents of any wire,
electronic, or oral communication that has been recorded or intercepted
as a result of this exception may be received in evidence in any trial,
hearing, or other proceeding in or before any court, grand jury,
department, officer, agency, regulatory body, legislative committee, or
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other authority of this State, or a political subdivision of the State, other
than in a prosecution of:
(A) the qualified offense for which approval was given to record or
intercept a conversation under this subsection (q);
(B) a forcible felony committed directly in the course of the
investigation of the qualified offense for which approval was given to
record or intercept a conversation under this subsection (q); or
(C) any other forcible felony committed while the recording or
interception was approved in accordance with this subsection (q), but
for this specific category of prosecutions, only if the law enforcement
officer or person acting at the direction of a law enforcement officer
who has consented to the conversation being intercepted or recorded
suffers great bodily injury or is killed during the commission of the
charged forcible felony.
(5) Compliance with the provisions of this subsection is a prerequisite
to the admissibility in evidence of any part of the contents of any wire,
electronic or oral communication that has been intercepted as a result
of this exception, but nothing in this subsection shall be deemed to
prevent a court from otherwise excluding the evidence on any other
ground recognized by State or federal law, nor shall anything in this
subsection be deemed to prevent a court from independently reviewing
the admissibility of the evidence for compliance with the Fourth
Amendment to the U.S. Constitution or with Article I, Section 6 of the
Illinois Constitution.
(6) Use of recordings or intercepts unrelated to qualified offenses.
Whenever any private conversation or private electronic
communication has been recorded or intercepted as a result of this
exception that is not related to an offense for which the recording or
intercept is admissible under paragraph (4) of this subsection (q), no
part of the contents of the communication and evidence derived from
the communication may be received in evidence in any trial, hearing, or
other proceeding in or before any court, grand jury, department, officer,
agency, regulatory body, legislative committee, or other authority of
this State, or a political subdivision of the State, nor may it be publicly
disclosed in any way.
(6.5) The Department of State Police shall adopt rules as are necessary
concerning the use of devices, retention of recordings, and reports
regarding their use under this subsection (q).
(7) Definitions. For the purposes of this subsection (q) only:
“Forcible felony” includes and is limited to those offenses contained in
Section 2-8 of the Criminal Code of 1961 as of the effective date of this
amendatory Act of the 97th General Assembly, and only as those
2020] Privacy, Eavesdropping, and Wiretapping 95
offenses have been defined by law or judicial interpretation as of that
date.
“Qualified offense” means and is limited to:
(A) a felony violation of the Cannabis Control Act, the Illinois
Controlled Substances Act, or the Methamphetamine Control and
Community Protection Act, except for violations of:
(i) Section 4 of the Cannabis Control Act;
(ii) Section 402 of the Illinois Controlled Substances Act; and
(iii) Section 60 of the Methamphetamine Control and Community
Protection Act; and
(B) first degree murder, solicitation of murder for hire, predatory
criminal sexual assault of a child, criminal sexual assault, aggravated
criminal sexual assault, aggravated arson, kidnapping, aggravated
kidnapping, child abduction, trafficking in persons, involuntary
servitude, involuntary sexual servitude of a minor, or gunrunning.
“State's Attorney” includes and is limited to the State's Attorney or an
assistant State's Attorney designated by the State's Attorney to provide
verbal approval to record or intercept conversations under this
subsection (q). . . .
720 ILL. COMP. STAT. ANN. §§ 5/14-1 to -3 (West 2020)(footnotes omitted).
Maryland
Maryland Code Annotated, Courts & Judicial Procedure section 10-402
provides in pertinent part:
In general
(a) Except as otherwise specifically provided in this subtitle it is
unlawful for any person to:
(1) Willfully intercept, endeavor to intercept, or procure any other
person to intercept or endeavor to intercept, any wire, oral, or electronic
communication; [or]
(2) Willfully disclose, or endeavor to disclose, to any other person the
contents of any wire, oral, or electronic communication, knowing or
having reason to know that the information was obtained through the
interception of a wire, oral, or electronic communication in violation of
this subtitle . . . .
Authorized interceptions, procurements, disclosures, or use of
communications
(c). . .
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(2)(i) This paragraph applies to an interception in which:
1. The investigative or law enforcement officer or other person is a party
to the communication; or
2. One of the parties to the communication has given prior consent to
the interception.
(ii) It is lawful under this subtitle for an investigative or law
enforcement officer acting in a criminal investigation or any other
person acting at the prior direction and under the supervision of an
investigative or law enforcement officer to intercept a wire, oral, or
electronic communication in order to provide evidence:
1. Of the commission of:
A. Murder;
B. Kidnapping;
C. Rape;
D. A sexual offense in the first or second degree;
E. Child abuse in the first or second degree;
F. Child pornography under § 11-207, § 11-208, or § 11-208.1 of the
Criminal Law Article;
G. Gambling;
H. Robbery under § 3-402 or § 3-403 of the Criminal Law Article;
I. A felony under Title 6, Subtitle 1 of the Criminal Law Article;
J. Bribery;
K. Extortion;
L. Dealing in a controlled dangerous substance, including a violation of
§ 5-617 or § 5-619 of the Criminal Law Article;
M. A fraudulent insurance act, as defined in Title 27, Subtitle 4 of the
Insurance Article;
N. An offense relating to destructive devices under § 4-503 of the
Criminal Law Article;
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O. A human trafficking offense under Title 3, Subtitle 11 of the
Criminal Law Article;
P. Sexual solicitation of a minor under § 3-324 of the Criminal Law
Article;
Q. An offense relating to obstructing justice under § 9-302, § 9-303, or
§ 9-305 of the Criminal Law Article;
R. Sexual abuse of a minor under § 3-602 of the Criminal Law Article;
S. A theft scheme or continuing course of conduct under § 7-103(f) of
the Criminal Law Article involving an aggregate value of property or
services of at least $10,000;
T. Abuse or neglect of a vulnerable adult under § 3-604 or § 3-605 of
the Criminal Law Article;
U. An offense relating to Medicaid fraud under §§ 8-509 through 8-515
of the Criminal Law Article;
V. An offense involving a firearm under § 5-134, § 5-136, § 5-138, § 5-
140, § 5-141, or § 5-144 of the Public Safety Article; or
W. A conspiracy or solicitation to commit an offense listed in items A
through V of this item; or
2. If:
A. A person has created a barricade situation; and
B. Probable cause exists for the investigative or law enforcement officer
to believe a hostage or hostages may be involved.
(3) It is lawful under this subtitle for a person to intercept a wire, oral,
or electronic communication where the person is a party to the
communication and where all of the parties to the communication have
given prior consent to the interception unless the communication is
intercepted for the purpose of committing any criminal or tortious act
in violation of the Constitution or laws of the United States or of this
State.
(4)(i) It is lawful under this subtitle for a law enforcement officer in the
course of the officer's regular duty to intercept an oral communication
if:
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1. The law enforcement officer initially lawfully detained a vehicle
during a criminal investigation or for a traffic violation;
2. The law enforcement officer is a party to the oral communication;
3. The law enforcement officer has been identified as a law enforcement
officer to the other parties to the oral communication prior to any
interception;
4. The law enforcement officer informs all other parties to the
communication of the interception at the beginning of the
communication; and
5. The oral interception is being made as part of a video tape recording.
(ii) If all of the requirements of subparagraph (i) of this paragraph are
met, an interception is lawful even if a person becomes a party to the
communication following:
1. The identification required under subparagraph (i)3 of this paragraph;
or
2. The informing of the parties required under subparagraph (i)4 of this
paragraph.
(5) It is lawful under this subtitle for an officer, employee, or agent of a
governmental emergency communications center to intercept a wire,
oral, or electronic communication where the officer, agent, or employee
is a party to a conversation concerning an emergency.
(6)(i) It is lawful under this subtitle for law enforcement personnel to
utilize body wires to intercept oral communications in the course of a
criminal investigation if there is reasonable cause to believe that a law
enforcement officer's safety may be in jeopardy.
(ii) Communications intercepted under this paragraph may not be
recorded, and may not be used against the defendant in a criminal
proceeding.
. . . .
(9) It is lawful under this subtitle for a person to intercept a wire or
electronic communication in the course of a law enforcement
investigation of possible telephone solicitation theft if:
2020] Privacy, Eavesdropping, and Wiretapping 99
(i) The person is an investigative or law enforcement officer or is acting
under the direction of an investigative or law enforcement officer; and
(ii) The person is a party to the communication and participates in the
communication through the use of a telephone instrument.
(10) It is lawful under this subtitle for a person to intercept a wire, oral,
or electronic communication in the course of a law enforcement
investigation in order to provide evidence of the commission of vehicle
theft if:
(i) The person is an investigative or law enforcement officer or is acting
under the direction of an investigative or law enforcement officer; and
(ii) The device through which the interception is made has been placed
within a vehicle by or at the direction of law enforcement personnel
under circumstances in which it is thought that vehicle theft may occur.
(11)(i) 1. In this paragraph the following words have the meanings
indicated.
2. “Body-worn digital recording device” means a device worn on the
person of a law enforcement officer that is capable of recording video
and intercepting oral communications.
3. “Electronic control device” has the meaning stated in § 4-109 of the
Criminal Law Article.
(ii) It is lawful under this subtitle for a law enforcement officer in the
course of the officer's regular duty to intercept an oral communication
with a body-worn digital recording device or an electronic control
device capable of recording video and oral communications if:
1. The law enforcement officer is in uniform or prominently displaying
the officer's badge or other insignia;
2. The law enforcement officer is making reasonable efforts to conform
to standards in accordance with § 3-511 of the Public Safety Article for
the use of body-worn digital recording devices or electronic control
devices capable of recording video and oral communications;
3. The law enforcement officer is a party to the oral communication;
4. Law enforcement notifies, as soon as is practicable, the individual
that the individual is being recorded, unless it is unsafe, impractical, or
impossible to do so; and
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5. The oral interception is being made as part of a videotape or digital
recording.
(iii) Failure to notify under subparagraph (ii)4 of this paragraph does
not affect the admissibility in court of the recording if the failure to
notify involved an individual who joined a discussion in progress for
which proper notification was previously given.
MD. CODE ANN., CTS. & JUD. PROC. § 10-402 (West 2020).
Massachusetts
Massachusetts General Laws Annotated chapter 272, section 99 provides in
pertinent part:
B. Definitions. As used in this section--. . . . 4. The term ‘interception’
means to secretly hear, secretly record, or aid another to secretly hear
or secretly record the contents of any wire or oral communication
through the use of any intercepting device by any person other than a
person given prior authority by all parties to such communication;
provided that it shall not constitute an interception for an investigative
or law enforcement officer, as defined in this section, to record or
transmit a wire or oral communication if the officer is a party to such
communication or has been given prior authorization to record or
transmit the communication by such a party and if recorded or
transmitted in the course of an investigation of a designated offense as
defined herein.
MASS. GEN. LAWS ANN. ch. 272, § 99 (West 2020).
Michigan
Michigan Compiled Laws sections 750.539a, 750.539c, 750.539g provide in
pertinent part:
Sec. 539a. . . As used in sections 539a to 539i:. . . (2) “Eavesdrop” or
“eavesdropping” means to overhear, record, amplify or transmit any
part of the private discourse of others without the permission of all
persons engaged in the discourse. Neither this definition or any other
provision of this act shall modify or affect any law or regulation
concerning interception, divulgence or recording of messages
2020] Privacy, Eavesdropping, and Wiretapping 101
transmitted by communications common carriers. . . .
Sec. 539c. Any person who is present or who is not present during a
private conversation and who wilfully uses any device to eavesdrop
upon the conversation without the consent of all parties thereto, or who
knowingly aids, employs or procures another person to do the same in
violation of this section, is guilty of a felony punishable by
imprisonment in a state prison for not more than 2 years or by a fine of
not more than $ 2,000.00, or both.
Sec. 539g. Sections 539a to 539f do not prohibit any of the following:
(a) Eavesdropping or surveillance not otherwise prohibited by law by a
peace officer of this state or of the federal government, or the officer’s
agent, while in the performance of the officer’s duties. . . .
MICH. COMP. LAWS ANN. § 750.539a, 750.539c, 750.539g (West 2020).
Montana
Montana Code Annotated section 45-8-213 provides in pertinent part:
(1) Except as provided in 69-6-104, a person commits the offense of
violating privacy in communications if he knowingly or purposely: . . .
. (c) records or causes to be recorded any conversation by use of a
hidden electronic or mechanical device which reproduces a human
conversation without the knowledge of all parties to the conversation.
(2)(a) Subsection (1)(c) does not apply to:
(i) elected or appointed public officials or to public employees when
the transcription or recording is done in the performance of official
duty . . . .
MONT. CODE ANN. § 45-8-213 (West 2019).
Nevada
Nevada Revised Statutes Annotated section 200.620 provides in pertinent part:
1. Except as otherwise provided in NRS 179.410 to 179.515,
inclusive, 209.419 and 704.195, it is unlawful for any person to
intercept or attempt to intercept any wire communication unless:
(a) The interception or attempted interception is made with the prior
consent of one of the parties to the communication; and
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(b) An emergency situation exists and it is impractical to obtain a
court order as required by NRS 179.410 to 179.515, inclusive, before
the interception, in which event the interception is subject to the
requirements of subsection 3. If the application for ratification is
denied, any use or disclosure of the information so intercepted is
unlawful, and the person who made the interception shall notify the
sender and the receiver of the communication that:
(1) The communication was intercepted; and
(2) Upon application to the court, ratification of the interception was
denied.
. . . .
3. Any person who has made an interception in an emergency situation
as provided in paragraph (b) of subsection 1 shall, within 72 hours of
the interception, make a written application to a justice of the Supreme
Court or district judge for ratification of the interception. The
interception must not be ratified unless the applicant shows that:
(a) An emergency situation existed and it was impractical to obtain a
court order before the interception; and
(b) Except for the absence of a court order, the interception met the
requirements of NRS 179.410 to 179.515, inclusive.
NEV. REV. STAT. ANN. § 200.620 (West 2019).
New Hampshire
New Hampshire Revised Statutes Annotated section 570-A:2 provides in
pertinent part:
I. A person is guilty of a class B felony if, except as otherwise
specifically provided in this chapter or without the consent of all parties
to the communication, the person:
(a) Wilfully intercepts, endeavors to intercept, or procures any other
person to intercept or endeavor to intercept, any telecommunication or
oral communication;
(b) Wilfully uses, endeavors to use, or procures any other person to use
2020] Privacy, Eavesdropping, and Wiretapping 103
or endeavor to use any electronic, mechanical, or other device to
intercept any oral communication when:
(1) Such device is affixed to, or otherwise transmits a signal through, a
wire, cable, or other like connection used in telecommunication, or
(2) Such device transmits communications by radio, or interferes with
the transmission of such communication, or
(3) Such use or endeavor to use (A) takes place on premises of any
business or other commercial establishment, or (B) obtains or is for the
purpose of obtaining information relating to the operations of any
business or other commercial establishment; or
(c) Wilfully discloses, or endeavors to disclose, to any other person the
contents of any telecommunication or oral communication, knowing or
having reason to know that the information was obtained through the
interception of a telecommunication or oral communication in violation
of this paragraph; or
(d) Willfully uses, or endeavors to use, the contents of any
telecommunication or oral communication, knowing or having reason
to know that the information was obtained through the interception of a
telecommunication or oral communication in violation of this
paragraph. . . .
II. It shall not be unlawful under this chapter for: . . .
(c) Any law enforcement officer, when conducting investigations of or
making arrests for offenses enumerated in this chapter, to carry on the
person an electronic, mechanical or other device which intercepts oral
communications and transmits such communications by radio.
(d) An investigative or law enforcement officer in the ordinary course
of the officer's duties pertaining to the conducting of investigations of
organized crime, offenses enumerated in this chapter, solid waste
violations under RSA 149-M:9, I and II, or harassing or obscene
telephone calls to intercept a telecommunication or oral
communication, when such person is a party to the communication or
one of the parties to the communication has given prior consent to such
interception; provided, however, that no such interception shall be made
unless the attorney general, the deputy attorney general, or an assistant
attorney general designated by the attorney general determines that
there exists a reasonable suspicion that evidence of criminal conduct
will be derived from such interception. Oral authorization for the
interception may be given and a written memorandum of said
determination and its basis shall be made within 72 hours thereafter.
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The memorandum shall be kept on file in the office of the attorney
general. . . .
(g) Any law enforcement officer, when conducting investigations of or
making arrests for offenses enumerated in this chapter, to carry on the
person an electronic, mechanical or other device which intercepts oral
communications and transmits such communications by radio.
N.H. REV. STAT. ANN. § 570-A:2 (1995).
Oregon
Oregon Revised Statutes section 165.540 provides in pertinent part:
(1) Except as otherwise provided in ORS 133.724 or 133.726 or
subsections (2) to (7) of this section, a person may not:
(a) Obtain or attempt to obtain the whole or any part of a
telecommunication or a radio communication to which the person is not
a participant, by means of any device, contrivance, machine or
apparatus, whether electrical, mechanical, manual or otherwise, unless
consent is given by at least one participant. . . .
(c) Obtain or attempt to obtain the whole or any part of a conversation
by means of any device, contrivance, machine or apparatus, whether
electrical, mechanical, manual or otherwise, if not all participants in the
conversation are specifically informed that their conversation is being
obtained. . . .
(5) The prohibitions in subsection (1)(c) of this section do not apply to:
(a) A person who records a conversation during a felony that endangers
human life;
(b) A person who records a conversation in which a law enforcement
officer is a participant, if:
(A) The recording is made while the officer is performing official
duties;
(B) The recording is made openly and in plain view of the participants
in the conversation;
(C) The conversation being recorded is audible to the person by normal
unaided hearing; and
(D) The person is in a place where the person lawfully may be . . . .
Or. Rev. Stat. Ann. § 165.540 (West 2020).
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Pennsylvania
Pennsylvania Consolidated Statutes title 18, section 5703 provides:
Except as otherwise provided in this chapter, a person is guilty of a
felony of the third degree if he:
(1) intentionally intercepts, endeavors to intercept, or procures any
other person to intercept or endeavor to intercept any wire, electronic or
oral communication;
(2) intentionally discloses or endeavors to disclose to any other person
the contents of any wire, electronic or oral communication, or evidence
derived therefrom, knowing or having reason to know that the
information was obtained through the interception of a wire, electronic
or oral communication; or
(3) intentionally uses or endeavors to use the contents of any wire,
electronic or oral communication, or evidence derived therefrom,
knowing or having reason to know, that the information was obtained
through the interception of a wire, electronic or oral communication.
18 PA. STAT. AND CONS. STAT. ANN. § 5703 (West 2020).
Pennsylvania Consolidated Statutes title 18, section 5704 provides in pertinent
part:
It shall not be unlawful and no prior court approval shall be required
under this chapter for: . . .
(2) Any investigative or law enforcement officer or any person acting
at the direction or request of an investigative or law enforcement officer
to intercept a wire, electronic or oral communication involving
suspected criminal activities, including, but not limited to, the crimes
enumerated in section 5708 (relating to order authorizing interception
of wire, electronic or oral communications), where:
(i) Deleted.
(ii) one of the parties to the communication has given prior consent to
such interception. However, no interception under this paragraph shall
be made unless the Attorney General or a deputy attorney general
designated in writing by the Attorney General, or the district attorney,
or an assistant district attorney designated in writing by the district
attorney, of the county wherein the interception is to be initiated, has
reviewed the facts and is satisfied that the consent is voluntary and has
given prior approval for the interception; however, such interception
shall be subject to the recording and record keeping requirements of
section 5714(a) (relating to recording of intercepted communications)
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and that the Attorney General, deputy attorney general, district attorney
or assistant district attorney authorizing the interception shall be the
custodian of recorded evidence obtained therefrom;
(iii) the investigative or law enforcement officer meets in person with a
suspected felon and wears a concealed electronic or mechanical device
capable of intercepting or recording oral communications. However, no
interception under this subparagraph may be used in any criminal
prosecution except for a prosecution involving harm done to the
investigative or law enforcement officer. This subparagraph shall not
be construed to limit the interception and disclosure authority provided
for in this subchapter; or
(iv) the requirements of this subparagraph are met. If an oral
interception otherwise authorized under this paragraph will take place
in the home of a nonconsenting party, then, in addition to the
requirements of subparagraph (ii), the interception shall not be
conducted until an order is first obtained from the president judge, or
his designee who shall also be a judge, of a court of common pleas,
authorizing such in-home interception, based upon an affidavit by an
investigative or law enforcement officer that establishes probable cause
for the issuance of such an order. No such order or affidavit shall be
required where probable cause and exigent circumstances exist. For the
purposes of this paragraph, an oral interception shall be deemed to take
place in the home of a nonconsenting party only if both the consenting
and nonconsenting parties are physically present in the home at the time
of the interception. . . .
(4) A person, to intercept a wire, electronic or oral communication,
where all parties to the communication have given prior consent to such
interception.
18 PA. STAT. AND CONS. STAT. ANN. § 5703 (West 2020).
Washington
Revised Code of Washington section 9.73.030 provides in pertinent part:
(1) Except as otherwise provided in this chapter, it shall be unlawful for
any individual, partnership, corporation, association, or the state of
Washington, its agencies, and political subdivisions to intercept, or
record any:
(a) Private communication transmitted by telephone, telegraph, radio,
or other device between two or more individuals between points within
or without the state by any device electronic or otherwise designed to
record and/or transmit said communication regardless how such device
2020] Privacy, Eavesdropping, and Wiretapping 107
is powered or actuated, without first obtaining the consent of all the
participants in the communication;
(b) Private conversation, by any device electronic or otherwise designed
to record or transmit such conversation regardless how the device is
powered or actuated without first obtaining the consent of all the
persons engaged in the conversation.
(2) Notwithstanding subsection (1) of this section, wire
communications or conversations (a) of an emergency nature, such as
the reporting of a fire, medical emergency, crime, or disaster, or (b)
which convey threats of extortion, blackmail, bodily harm, or other
unlawful requests or demands, or (c) which occur anonymously or
repeatedly or at an extremely inconvenient hour, or (d) which relate to
communications by a hostage holder or barricaded person as defined in
RCW 70.85.100, whether or not conversation ensues, may be recorded
with the consent of one party to the conversation.
Revised Code of Washington section 9.73.110 provides:
It shall not be unlawful for the owner or person entitled to use and
possession of a building, as defined in RCW 9A.04.110(5), or the agent
of such person, to intercept, record, or disclose communications or
conversations which occur within such building if the persons engaged
in such communication or conversation are engaged in a criminal act at
the time of such communication or conversation by virtue of unlawful
entry or remaining unlawfully in such building.
Revised Code of Washington section 9.73.200 provides:
The legislature finds that the unlawful manufacturing, selling, and
distributing of controlled substances is becoming increasingly prevalent
and violent. Attempts by law enforcement officers to prevent the
manufacture, sale, and distribution of drugs is resulting in numerous
life-threatening situations since drug dealers are using sophisticated
weapons and modern technological devices to deter the efforts of law
enforcement officials to enforce the controlled substance statutes.
Dealers of unlawful drugs are employing a wide variety of violent
methods to realize the enormous profits of the drug trade.
Therefore, the legislature finds that conversations regarding illegal drug
operations should be intercepted, transmitted, and recorded in certain
circumstances without prior judicial approval in order to protect the life
and safety of law enforcement personnel and to enhance prosecution of
drug offenses, and that that interception and transmission can be done
without violating the constitutional guarantees of privacy.
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Revised Code of Washington section 9.73.210 provides in pertinent part:
(1) If a police commander or officer above the rank of first line
supervisor has reasonable suspicion that the safety of the consenting
party is in danger, law enforcement personnel may, for the sole purpose
of protecting the safety of the consenting party, intercept, transmit, or
record a private conversation or communication concerning:
(a) The unlawful manufacture, delivery, sale, or possession with intent
to manufacture, deliver, or sell, controlled substances as defined in
chapter 69.50 RCW, or legend drugs as defined in chapter 69.41 RCW,
or imitation controlled substances as defined in chapter 69.52 RCW; or
(b) Person(s) engaging in the commercial sexual abuse of a minor under
RCW 9.68A.100, or promoting commercial sexual abuse of a minor
under RCW 9.68A.101, or promoting travel for commercial sexual
abuse of a minor under RCW 9.68A.102.
(2) Before any interception, transmission, or recording of a private
conversation or communication pursuant to this section, the police
commander or officer making the determination required by subsection
(1) of this section shall complete a written authorization which shall
include (a) the date and time the authorization is given; (b) the persons,
including the consenting party, expected to participate in the
conversation or communication, to the extent known; (c) the expected
date, location, and approximate time of the conversation or
communication; and (d) the reasons for believing the consenting party's
safety will be in danger. . . .
(7) Nothing in this section authorizes the interception, recording, or
transmission of a telephonic communication or conversation.
Revised Code of Washington section 9.73.230 provides in pertinent part:
(1) As part of a bona fide criminal investigation, the chief law
enforcement officer of a law enforcement agency or his or her designee
above the rank of first line supervisor may authorize the interception,
transmission, or recording of a conversation or communication by
officers under the following circumstances:
(a) At least one party to the conversation or communication has
consented to the interception, transmission, or recording;
(b) Probable cause exists to believe that the conversation or
communication involves:
(i) The unlawful manufacture, delivery, sale, or possession with intent
to manufacture, deliver, or sell, controlled substances as defined in
chapter 69.50 RCW, or legend drugs as defined in chapter 69.41 RCW,
or imitation controlled substances as defined in chapter 69.52 RCW; or
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(ii) A party engaging in the commercial sexual abuse of a minor under
RCW 9.68A.100, or promoting commercial sexual abuse of a minor
under RCW 9.68A.101, or promoting travel for commercial sexual
abuse of a minor under RCW 9.68A.102; and
(c) A written report has been completed as required by subsection (2)
of this section.
WASH. REV. CODE ANN. §§ 9.73.030, .110, .200, .210, .230 (West 2020).
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