State v. Reeves
| Decision Date | 01 March 1982 |
| Docket Number | No. 81-KA-0909,81-KA-0909 |
| Citation | 427 So.2d 403 |
| Parties | STATE of Louisiana v. Charles W. REEVES. |
| Court | Louisiana Supreme Court |
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Leonard K. Knapp, Dist. Atty., Larry J. Regan, Eugene Bouquet, Asst. Dist. Attys., for plaintiff-appellee.
Richard Ieyoub, Lake Charles, for defendant-appellant.
In this case we are called upon to decide whether eavesdropping by state government
agents on conversations between an accused and an informant by means of a radio transmitter concealed on the informant's person with his consent violates Article 1, § 5 of the 1974 Louisiana Constitution. 1 We hold that electronic surveillance must be conducted in full compliance with the warrant requirement. A person's "communications" are specifically protected by the state constitution against unreasonable searches, seizures or "invasions of privacy." La. Const.1974, Art. 1, § 5. Consequently, antecedent justification before a magistrate is a precondition of lawful electronic interception of private communications just as it is essential to the lawful search of a house or the seizure of papers and effects. This constitutional safeguard and its warrant requirement protect each person's private communications and privacy regardless of whether his communicatee has consented to an interception or invasion.
Defendant, Charles W. Reeves, an employee of the Department of Elections was convicted of two counts of perjury. He was sentenced concurrently on each count to six months in jail and fined $1000. Defendant was found guilty on evidence showing that in testifying before a grand jury he denied having had conversations about raising compaign contributions by false expense vouchers with a fellow employee, Alvin Pilley. Defendant moved unsuccessfully before trial to suppress tape recordings and transcripts of three face-to-face conversations that state agents had intercepted without his consent through the use of a wireless transmitter they had concealed on Pilley. At trial the state was permitted, over the defendant's objection, to introduce recordings and transcripts of the intercepted communications. It is undisputed that this evidence was obtained without a warrant but with Pilley's consent and cooperation.
Defendant contends on appeal that the secret monitoring and taping of his conversations by state agents without first securing a warrant, was an unreasonable invasion of his privacy, prohibited by Article 1, § 5 of the Louisiana Constitution of 1974. The state argues that Article 1, § 5 provides no greater protection against invasions of privacy than the Fourth Amendment of the United States Constitution, as interpreted by the United States Supreme Court in United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971). In White a plurality of the high court concluded that the Fourth Amendment does not require government agents to first secure a warrant before they secretly monitor private communications when one of the participants consents to the monitoring. We are called on to decide whether the affirmative right to privacy and specific protection of communications contained in Article 1, § 5 of the Louisiana Constitution of 1974, requires state agents to secure a search warrant before such electronic surveillance can be conducted.
Article 1, § 5 of the 1974 Louisiana Constitution says that:
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 seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.
By its clear terms the constitution explicitly protects every person's "communications" from unreasonable searches, seizures, and "invasions of privacy," thereby affirmatively establishing a right to privacy including a person's communications. The safeguard is unlimited and thus covers all of a person's private communications. Because the constitution expressly elevates communication as a protected interest to a position of equal stature with other expressly protected interests, invasions or interceptions of them may not be conducted without a warrant issued upon probable cause, particularly describing the communication to be invaded and the lawful purpose or reason for the interception. It is clear that the framers of the constitution sought a solution regulating but not prohibiting electronic surveillance of communications whereby the rights of individual liberty and the needs of law enforcement are fairly accommodated.
The genesis of this accommodation is recorded in the proceedings of the Bill of Rights and Elections Committee of the constitutional convention. Members of the committee urged the adoption of a safeguard more perfect than the Fourth Amendment against threats to the liberty of communications posed by technological advances in electronic wiretapping, eavesdropping and computer science. 2 An early draft of Section 5 provided: "No law shall permit the interception or inspection of any private communication or language." The committee decided to modify this outright ban, however, after realizing that it prohibited electronic surveillance even under court supervision. 3 To accommodate this perceived need, the committee altered its draft by placing communications on an equal footing with other expressly protected interests and by interposing the requirement of a warrant before any interception can be
conducted. 4 It is clear from the discussion and debate that the committee did not consider that the legitimate needs of law enforcement justified any exception to the warrant requirement for electronic surveillance other than, perhaps, specific exceptions similar to those which have been recognized for searches of other protected areas and interests. 5
The final committee proposal was adopted without change by the delegates to the constitutional convention and approved by the electorate. Because Article 1, § 5 explicitly and unqualifiedly protects a person's "communications" against warrantless "invasions of privacy," we cannot believe that any reasonable delegate or voter considered that the proposed constitution excluded any form of private communication from its safeguards. These safeguards for communications and privacy are not contained in either the Fourth Amendment or the 1921 Louisiana Constitution. Clearly, the constitutional aim is to elevate them as protected interests to the same rank as houses, papers and effects and to afford them equal defense by the warrant requirement. If the intention of the framers had been otherwise, it would have been an easy matter for them to except certain types of invasions of communications from the warrant requirement, e.g., those done with the consent of a party to the communication. Moreover, we are convinced that the vast majority of law abiding Louisianians regard warrantless surreptitious electronic monitoring of their conversations, even with the consent and collaboration of their communicatees, as unreasonable invasions of their private communications.
Applying these precepts to the present case, we conclude that the state government officials' activities in electronically listening to defendant's words violated his right to privacy and right to be secure in his private communications under Article 1, § 5 of the 1974 Louisiana Constitution. Accordingly, we must reverse the defendant's conviction, order that his intercepted communications be suppressed, and remand the case for further proceedings. The testimony of the informant, Alvin Pilley, however, will not be suppressed, and the state may introduce this evidence at a new trial. As we have noted, the specific constitutional provisions banning unreasonable invasions of communications and privacy were adopted because of the threat to the liberties of innocent citizens by technological advancements in electronic surveillance and computerization. There is no indication the delegates or the electorate sought to protect a person guilty of a crime against betrayal by his confidant or considered the introduction of an informant's testimony itself an unreasonable invasion of privacy and communications.
Several other states have recently adopted constitutional provisions affirmatively guaranteeing the right to privacy or specifically protecting communications against unreasonable invasion. Alaska Const. of 1959, Art. 1, § 22, as amended in 1972 ("The right of the people to privacy is recognized and shall not be infringed ..."); Florida Const. (1968 Revision) Art. 1, § 12 (); Montana Const. of 1972, Art. II, § 10 ("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."). The Supreme Court of each state has held that warrantless electronic surveillance of private communications by state officials is an unreasonable invasion of privacy even when one of the parties to the conversation consents to the surveillance.
In State v. Sarmiento, 397 So.2d 643 (Fla.1981) the Florida Supreme Court held that, although the defendant who discussed a sale of heroin with an undercover officer in his home, assumed the risk that the officer might reveal the contents of their conversation to the outside world, the defendant enjoyed a reasonable expectation of privacy that no one else was listening to...
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