State v. Burnside

Decision Date17 April 2014
Docket NumberNo. 13–0733.,13–0733.
Citation233 W.Va. 273,757 S.E.2d 803
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia ex rel. STATE of West Virginia, Petitioner v. The Honorable Robert A. BURNSIDE, Jr., Judge of the Circuit Court of Raleigh County; and Richard E. Hardison, Jr., Respondents.

233 W.Va. 273
757 S.E.2d 803

STATE of West Virginia ex rel. STATE of West Virginia, Petitioner
v.
The Honorable Robert A. BURNSIDE, Jr., Judge of the Circuit Court of Raleigh County; and Richard E. Hardison, Jr., Respondents.

No. 13–0733.

Supreme Court of Appeals of
West Virginia.

Submitted March 26, 2014.
Decided April 17, 2014.


[757 S.E.2d 804]



Syllabus by the Court

W.Va.Code § 62–1D–9(d) of the West Virginia Wiretapping and Electronic Surveillance Act, W.Va.Code § 62–1D–1 et seq. [1987], is intended to prevent attorney-client privileged communications from being monitored by wiretapping or through electronic surveillance. The third clause of W.Va.Code § 62–1D–9(d), considered in conjunction with the first two clauses of the statute, and within the West Virginia Wiretapping and Electronic Surveillance Act and Title III of the Omnibus Crime Control and Safe Streets Act,18 U.S.C. § 2510 et seq., was intended to prohibit the interception of all attorney-client privileged communications “emanating from the place of employment of any attorney at law licensed to practice law in this state.” The third clause of W.Va.Code § 62–1D–9(d) was not intended to prevent law-enforcement officers from intercepting wire, oral or electronic communications occurring within or emanating from a law office that involve criminal conduct.


Patrick Morrisey, Attorney General, Scott E. Johnson, Esq., Senior Assistant Attorney General, Charleston, WV, for the Petitioner.

Timothy J. LaFon, Esq., Ciccarello, DelGuidice & LaFon, PLLC, Charleston, WV, for the Respondent Richard E. Hardison, Jr.


Justice KETCHUM:

The Petitioner, the State of West Virginia, invokes this Court's original jurisdiction in prohibition to challenge the June 26, 2013, order of the Circuit Court of Raleigh County suppressing an audio recording which the State sought to introduce in its criminal prosecution of Respondent Richard E. Hardison, Jr., a licensed lawyer in West Virginia (“Lawyer Hardison”). The Raleigh County Sheriff's Department sent a confidential informant, equipped with a body wire, to meet with and attempt to purchase cocaine from Lawyer Hardison. The confidential informant allegedly discussed and purchased cocaine from Lawyer Hardison in his Beckley, West Virginia law office.

After being indicted on two criminal counts related to this alleged drug transaction, Lawyer Hardison moved to suppress the audio recording of his conversation with the confidential informant arguing that the recording violated the West Virginia Wiretapping and Electronic Surveillance Act, W.Va.Code § 62–1D–9(d) [1987]. The circuit court agreed and granted Lawyer Hardison's motion to suppress the audio recording.

The State subsequently filed the present writ arguing that the circuit court's interpretation of W.Va.Code § 62–1D–9(d) was erroneous. The State argues that the purpose of W.Va.Code § 62–1D–9(d) is to prevent attorney-client privileged communications from being intercepted by wiretapping or through electronic surveillance. Because there is no claim that the conversation between Lawyer Hardison and the confidential informant was protected under the attorney-client privilege, the State argues that the circuit court's order suppressing the audio recording was in error.

After review, we agree with the State and conclude that W.Va.Code § 62–1D–9(d) is intended to prevent attorney-client privileged communications from being intercepted by

[757 S.E.2d 805]

wiretapping or through electronic surveillance. There is no claim that the recorded conversation between Lawyer Hardison and the confidential informant was attorney-client in nature. Because Lawyer Hardison was not acting as an attorney during his conversation with the confidential informant, we grant the requested writ of prohibition.

I. Factual & Procedural Background

On April 6, 2012, the Raleigh County Sheriff's Department sent a confidential informant, equipped with a body wire, to meet with and attempt to obtain cocaine from Lawyer Hardison. The confidential informant was an acquaintance and client of Lawyer Hardison.1 The State alleges that the confidential informant picked Lawyer Hardison up at his residence and drove to Lawyer Hardison's law office. The audio recording allegedly includes conversations between the confidential informant and Lawyer Hardison that occurred in the confidential informant's automobile and continued as the two men entered Lawyer Hardison's law office. The State alleges that the confidential informant purchased cocaine from Lawyer Hardison and that the sale occurred in Lawyer Hardison's law office.2 They did not discuss legal matters or matters that were attorney-client in nature.

The confidential informant agreed to wear the body wire that recorded his conversation with Lawyer Hardison. The West Virginia Wiretapping and Electronic Surveillance Act (“ West Virginia Wiretapping Act ” or “the Act ”), W.Va.Code § 62–1D–1 [1987]et seq., permits the use of an electronic surveillance device when one party to the communication consents to the use of a recording device. W.Va.Code § 62–1D–3(e) of the West Virginia Wiretapping Act states:

(e) It is lawful under this article for a person to intercept a wire, oral or electronic communication where the person is a party to the communication or where one of the parties to the communication has 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 the constitution or laws of this state[.]

This one-party consent rule is an exception to the Act's general requirement that the interception of wire, oral or electronic communications is only permissible when authorized by a designated circuit court judge. The procedure for designating specific circuit court judges to authorize electronic surveillance is set forth in W.Va. § 62–1D–7 [1987] of the Act. It states:


The chief justice of the supreme court of appeals shall, on an annual basis, designate five active circuit court judges to individually hear and rule upon applications for orders authorizing the interception of wire, oral or electronic communications: Provided, That no designated circuit judge may consider any application for such an order if he or she presides as judge of the circuit court of the county wherein the applied for installation would occur or of the county wherein the communications facility, line or device to be monitored is located.

Pursuant to the West Virginia Wiretapping Act, a prosecutor (W.Va.Code § 62–1D–8) or an authorized member of the state police (W.Va.Code § 62–1D–11(a)(1)) may make an application to a designated circuit court judge for a warrant to intercept a communication with an electronic surveillance device. The Act permits a designated circuit court judge to issue a warrant ONLY IF the evidence and argument presented by the applicant establishes that:

(1) There is probable cause to believe that one or more individuals are committing, have committed, or are about to commit

[757 S.E.2d 806]

one or more of the particular offenses enumerated in section eight of this article;

(2) There is probable cause for belief that particular communications concerning such offense or offenses will be obtained through the interception;

(3) Normal investigative procedures have been tried and have failed and reasonably appear to be unlikely to succeed if attempted again, or that to do so would be unreasonably dangerous and likely to result in death or injury or the destruction of property; and

(4) There is probable cause to believe that the facilities from which, or the place where, the wire, oral or electronic communications are to be intercepted are being used, or are about to be used, in connection with the commission of the offense, or offenses are leased to, listed in the name of, or commonly used by this person.

W.Va.Code § 62–1D–11(c).


Lawyer Hardison was indicted on two felony counts related to the alleged cocaine transaction with the confidential informant: (1) delivery of a controlled substance (cocaine) in violation of W.Va.Code § 60A–4–401 [1983]; and (2) conspiracy to commit the felony offense of delivering a controlled substance (cocaine) in violation of W.Va.Code § 61–10–31 [1971].

Lawyer Hardison filed a motion to suppress the audio recording of the conversation between himself and the confidential informant, asserting that the recording was made in violation of W.Va.Code § 62–1D–9(d) of the West Virginia Wiretapping Act. W.Va.Code § 62–1D–9(d) states:

An otherwise privileged wire, oral or electronic communication intercepted in accordance with, or in violation of, the provisions of this article does not lose its privileged character: Provided, That when an investigative or law-enforcement officer, while engaged in intercepting wire, oral or electronic communications in the manner authorized by this article, intercepts a wire, oral or electronic communication and it becomes apparent that the conversation is attorney-client in nature, the investigative or law-enforcement officer shall immediately terminate the monitoring of that conversation: Provided, however, That notwithstanding any provision of this article to the contrary, no device designed to intercept wire, oral or electronic communications shall be placed or installed in such a manner as to intercept wire, oral or electronic communications emanating from the place of employment of any attorney at law licensed to practice law in this state.

The circuit court held a suppression hearing on Lawyer Hardison's motion. The State argued that W.Va.Code § 62–1D–9(d) was intended to protect attorney-client privileged communications and “not [the] misconduct of lawyers [.]” Further, the State contended that Lawyer Hardison's reading of the statute would lead to an absurd result: it would prevent the use of audio and video recordings of individuals engaging in criminal conduct from being...

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