State v. Mullens

• Decision Date: 28 February 2007
• Docket Number: No. 33073.,33073.
• Citation: 650 S.E.2d 169
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Appellee, v. Eddie MULLENS, Appellant.

650 S.E.2d 169

STATE of West Virginia, Appellee, v. Eddie MULLENS, Appellant.

No. 33073.

Supreme Court of Appeals of West Virginia.

Submitted November 14, 2006.

Decided February 28, 2007.

Dissenting Opinion of Justice Benjamin April 13, 2007. [650 S.E.2d 171]

Benjamin M. Conaway, Conaway & Conaway, Madison, for Appellant.

Darrell V. McGraw, Jr., Attorney General, Barry L. Koerber, Assistant Attorney General, Charleston, for Appellee.

DAVIS, Chief Justice:

Eddie Mullens (hereinafter "Mr. Mullens") appeals an order of the Circuit Court of Boone County sentencing him to a term of one to five years imprisonment,¹ after entering a conditional guilty plea to a charge of delivery of a controlled substance.² Pursuant to the terms of the conditional guilty plea, Mr. Mullens assigns error to the circuit court's denial of his motion to suppress an audio and video recording of the drug transaction that occurred in his home. Mr. Mullens asserts that the audio and video recording should have been suppressed because the evidence was obtained by an informant acting under the color of law without a court order. After careful consideration of the briefs, record and oral arguments, we find that the circuit court should have suppressed the audio and video recording in this case. Accordingly, Mr. Mullens' conviction and sentence are reversed, and this case is remanded to permit him to withdraw his guilty plea.

I. FACTUAL AND PROCEDURAL HISTORY

On December 11, 2003, law enforcement agents with the U.S. 119 Drug and Violent Crimes Task Force (hereinafter "Task Force")³ employed a confidential informant to make an illegal drug purchase at Mr. Mullens' home.⁴ The Task Force equipped the confidential informant with a hidden audio and video recording device.⁵ The Task Force did not obtain judicial authorization to allow the confidential informant to use the electronic surveillance device while inside Mr. Mullens' home.

On the evening of December 11, the confidential informant went to Mr. Mullens' home. The confidential informant was invited into the home by Mr. Mullens and his wife, Jessica Mullens. Once inside the home, the confidential informant purchased 3.23 grams of marijuana. The electronic surveillance device worn by the confidential informant recorded the drug purchase.

On September 22, 2004, a grand jury returned an indictment against Mr. Mullens and his wife, charging them with one count of delivery of a controlled substance and one count of conspiring to deliver a controlled substance.⁶ Mr. Mullens filed a motion to suppress the audio and video recording of the drug transaction asserting that the federal and state constitutions and state electronic surveillance laws required judicial authorization for the confidential informant to enter his home with the electronic surveillance device. After holding a hearing on the motion, the circuit court entered an order on November 16, 2005, denying the motion to suppress. The circuit court's ruling was based upon the United States Supreme Court's decision in United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971).

As a consequence of the circuit court's denial of the motion to suppress, Mr. Mullens entered a plea agreement with the State. Under that agreement, Mr. Mullens pled guilty to the charge of delivery of a controlled substance, upon the condition that he be allowed to appeal the denial of his motion to suppress. By order entered November 30, 2005, the circuit court accepted the plea agreement and sentenced Mr. Mullens to a term of 1 to 5 years imprisonment.⁷ From this ruling, Mr. Mullens now appeals.

II. STANDARD OF REVIEW

We have been called upon to decide whether the circuit court committed error in denying Mr. Mullens' motion to suppress evidence obtained through the use of an electronic surveillance device. In examining a challenge to a circuit court's ruling in a suppression hearing, we are guided by the following standard of review:

On appeal, legal conclusions made with regard to suppression determinations are reviewed de novo. Factual determinations upon which these legal conclusions are based are reviewed under the clearly erroneous standard. In addition, factual findings based, at least in part, on determinations of witness credibility are accorded great deference.

Syl. pt. 3, State v. Stuart, 192 W.Va. 428, 452 S.E.2d 886 (1994). Insofar as the circuit court's ruling on the suppression motion involved purely legal determinations, we review the circuit court's order de novo.

III. DISCUSSION

The instant appeal requires us to decide whether the police can, without prior impartial judicial authorization, solicit a person to serve as a confidential informant, equip that person with an electronic surveillance device and send him/her into the home of any citizen the police arbitrarily decide to investigate. The impact of this Court's resolution of the issue herein presented reaches literally into the home of every citizen of our State. The immense import of our ruling in this case demands that we leave no stone unturned and no footnote unread in reaching our decision. For this reason our analysis will proceed with an examination of (1) federal electronic surveillance laws, (2) electronic surveillance laws of other states, and (3) West Virginia's electronic surveillance laws.

A. An Informant's Use of an Electronic Surveillance Device in the Home of Another under Federal Laws

In Mr. Mullens' motion to suppress he argued that the prohibition of unlawful search and seizure, under the Fourth Amendment to the federal constitution, was violated by the failure of the police to obtain judicial authorization to have an informant enter his home wearing an audio and video recording device. The circuit court found that, based upon the decision of the United States Supreme Court in United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), the Fourth Amendment was not violated. Before we discuss White, we must first examine the federal electronic surveillance statutes.

1. Federal electronic surveillance under Title III. Under federal law, the use of electronic surveillance devices by law enforcement officials was initially governed by general provisions contained in the Federal Communications Act of 1934.⁸ However, in 1968 Congress enacted detailed electronic surveillance laws through Title III of the Omnibus Crime Control and Safe Streets Act.⁹ Title III "sets forth comprehensive standards governing the use of . . . electronic surveillance by both governmental and private agents." Mitchell v. Forsyth, 472 U.S. 511, 515, 105 S.Ct. 2806, 2809, 86 L.Ed.2d 411, 418 (1985). In 1986, Congress amended Title III through enactment of the Electronic Communications Privacy Act (hereinafter "ECPA"),¹⁰ in an effort to reflect technological advancements in the area of electronic surveillance. See Snow v. DirecTV, Inc., 450 F.3d 1314, 1320 (11th Cir.2006) ("The ECPA was enacted to update the then existing federal wiretapping law to protect the privacy of the growing number of electronic communications.").¹¹ Title III was further amended by the Communications Assistance for Law Enforcement Act of 1994.¹²

It has been suggested that the long history of federal law in the area of electronic surveillance devices reveals attempts by Congress "to assist law enforcement in the investigation and prosecution of organized crime and to protect the privacy rights of United States citizens against the unwarranted interception of . . . communications[.]" Daniel R. Dinger, Should Parents Be Allowed to Record a Child's Telephone Conversations When They Believe the Child Is in Danger?: An Examination of the Federal Wiretap Statute and the Doctrine of Vicarious Consent in the Context of a Criminal Prosecution, 28 Seattle U.L.Rev. 955, 958 (2005). "In short, Title III represents an attempt by Congress to establish a system of electronic surveillance subject to rigorous safeguards." United States v. Clemente, 482 F.Supp. 102, 106 (S.D.N.Y.1979).

The pertinent federal electronic surveillance provisions of Title III are codified at 18 U.S.C.A. § 2510, et seq. These statutes "represent[ ] an attempt to strike what is clearly a balance through stringent regulation of the uses of electronic surveillance in order to achieve the dual purpose of protecting individual privacy, while permitting limited government surveillance in accordance with uniform standards." Application of the U.S. Authorizing the Interception of Wire Communications, 413 F.Supp. 1321, 1331 (E.D.Pa.1976). Except for specifically codified exceptions, Title III prohibits the unauthorized use of a device to record another's communication.¹³ Title III requires judicial authorization, except in limited circumstances, for recording the communications of another with an electronic surveillance device.¹⁴ Under Title III, criminal and civil penalties are imposed for the unauthorized use of a device to record the communication of another person.¹⁵ Title III also contains an evidentiary suppression remedy that provides for the suppression of unlawfully intercepted communications.¹⁶

One of the exceptions to the prohibition on unauthorized electronic surveillance is found in 18 U.S.C.A. § 2511(2)(c). This statute provides:

(c) It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.

(Emphasis added).¹⁷

Under this statute, "consent of one party to a conversation is sufficient to permit a person acting under color of law to [lawfully] intercept a wire, oral, or electronic communication." United States v. Pratt, 913 F.2d 982, 986 (1st Cir.1990) (internal quotations omitted). Federal "[c]ourts have established that informants who record private conversations at the direction of government...