State v. Glass

BURKE, Justice,

dissenting.

The Supreme Court of the United States has consistently held that the Fourth Amendment does not prevent the use, as evidence, of statements electronically monitored or recorded under circumstances similar to those present in the case at bar. See, e. g., Lopez v. United States, 373 U.S. 427 , 83 S.Ct. 1381 , 10 L.Ed.2d 462 (1963); On Lee v. United States, 343 U.S. 747 , 72 S.Ct. 967 , 96 L.Ed. 1270 (1952). See also United States v. White, 401 U.S. 745 , 91 S.Ct. 1122 , 28 L.Ed.2d 453 (1971). Other federal courts and a multitude of state courts interpreting similar provisions found in their own state constitutions have expressed the same view. See Annot., 97 A.L.R.2d 1283 (1964). Thus, the overwhelming weight of authority holds that evidence secured by means of a mechanical or electronic monitoring device is admissible, where it appears that one of the parties to the conversation consented to or cooperated in its interception. Id.

In On Lee v. United States, supra, a narcotics agent overheard a conversation by means of a microphone and radio transmitter carried by an informant with whom the defendant spoke. The agent’s testimony relating what he had heard was held properly admitted against the defendant in his trial for selling opium. Rejecting the defendant’s argument that such conduct was analogous to illegal wiretapping, the Supreme Court of the United States held that there was no violation of his Fourth Amendment rights, saying;

The presence of a radio set is not sufficient to suggest more than the most attenuated analogy to wiretapping. Petitioner was talking confidentially and indiscreetly with one he trusted, and he was overheard. This was due to aid from a transmitter and receiver, to be sure, but with the same effect on his privacy as if agent Lee had been eavesdropping outside an open window. The use of bifocals, field glasses or the telescope to magnify the object of a witness’ vision is not a forbidden search or seizure, even if they focus without his knowledge or consent upon what one supposes to be private indiscretions. It would be a dubious service to the genuine liberties protected by the Fourth Amendment to make them bedfellows with spurious liberties impro *883 vised by farfetched analogies which would liken eavesdropping on a conversation, with the connivance of one of the parties, to an unreasonable search or seizure. We find no violation of the Fourth Amendment. . . . 1

In Lopez v. United States, supra, the Supreme Court gave its approval to use of a wire recording of a conversation between the defendant and an Internal Revenue agent in which the defendant offered the agent a bribe. During a visit to the defendant’s office the agent recorded the conversation on a small recording device carried in his pocket. Noting, as did the superior court in this case, that the agent himself could testify about the conversation, the Court said:

Once it is plain that [agent] Davis could properly testify about his conversation with Lopez, the constitutional claim relating to the recording of that conversation emerges in proper perspective. The Court has in the past sustained instances of “electronic eavesdropping” against constitutional challenge, when devices have been used to enable government - agents to overhear conversations which would have been beyond the reach of the human ear. See, e. g., Olmstead v. United States, 277 U.S. 438 , 48 S.Ct. 564 , 72 L.Ed. 944 [ 66 A.L.R. 376 ]; Goldman v. United States, 316 U.S. 129 , 62 S.Ct. 993 , 86 L.Ed. 1322 . It has been insisted only that the electronic device not be planted by an unlawful physical invasion of a constitutionally protected area. Silverman v. United States [ 365 U.S. 505 , 81 S.Ct. 679 ], 5 L.Ed.2d 734 , supra. The validity of these decisions is not in question here. Indeed this case involves no “eavesdropping” whatever in any proper sense of that term. The Government did not use an electronic device to listen in on conversations it would not otherwise have heard. Instead, the device was used only to obtain the most reliable evidence possible of a conversation in which the Government’s own agent was a participant and which that agent was fully entitled to disclose. And the device was not planted by means of an unlawful physical invasion of petitioner’s premises under circumstances which would violate the Fourth Amendment. It was carried in and out by an agent who was there with petitioner’s assent, and it neither saw nor heard more than the agent himself. 2

More recently, in United States v. White, supra, the Supreme Court reversed a decision of the United States Court of Appeals for the Seventh Circuit which held that it was error to admit the testimony of a government agent relating a conversation between the defendant and an informant overheard by monitoring transmissions from a radio transmitter concealed upon the person of the informant. Four members of the Court saw no necessity for a warrant. In a plurality opinion, Mr. Justice White stated:

Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter’s Fourth Amendment rights. Hoffa v. United States, 385 U.S. [293] at 300-303, 87 S.Ct. 408 at 412-414 [ 17 L.Ed.2d 374 at 381, 382 ]. For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, Lopez v. United States, supra; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v. United States, supra. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant’s constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the *884 same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks. 3

The view reflected by the foregoing authorities has been incorporated in § 4.1 of the American Bar Association’s Standards Relating to Electronic Surveillance (Approved Draft, 1971). The standard provides: .

The use of electronic surveillance techniques by law enforcement officers for the overhearing or recording of wire or oral communications with the consent of one of the parties should be permitted. 4

*885 One of the two decisions called to our attention holding directly to the contrary is from the Supreme Court of Michigan, People v. Beavers, 398 Mich. 554 , 227 N.W.2d 511 (1975), cert. denied, 423 U.S. 878 , 96 S.Ct. 152 , 46 L.Ed.2d 111 (1975). In that case the court held that in the absence of a search warrant, electronic monitoring of a defendant’s conversation with an informant constituted an unreasonable search and seizure, under a provision of the Michigan Constitution similar to our own art. I, § 14. However, the Michigan court held, as did the superior court in the case at bar:

The admissibility of the informant’s testimony is in no way affected by ruling inadmissible the testimony of the two police officers [who monitored the conversation], The warrantless monitoring and subsequent testimony of these two witnesses renders tainted the transmitted account of the conversation, but does not in any way prevent the informant from testifying as to the statement spoken to him directly. 5

In a well-reasoned dissent, Justice Coleman of the Michigan court, criticized the position taken by her colleagues, stating:

By federal standards and, I assume, by the standards of the majority of this Court, a record from a device taped to [the informant’s] body would be admissible in' evidence as would be testimony by people listening from a closet or at an open window or viewing the premises with binoculars. Conversations can be written down or related to third parties. As a practical matter, monitoring the same consensual conversation through a “walkie-talkie” provides no greater degree of “intrusion.”

It serves to encourage defendant’s honesty and to protect the life of the agent or informant. He plays a deadly game and the microphone allows him speedy access to help.

More importantly, it provides a means to protect the courtroom against degrading and flagrant use of perjury.

Further, the very nature of the narcotics trade renders it subject to need for quick action. Otherwise, the “bird will have flown,” the opportunity to listen to a “buy” will have been lost. The requirement that the officer first find a magistrate and then try to describe the conversation to be “seized” and the place (under Katz, it could be anyplace, including some sidewalk) where it is to be “seized” and then to go with the warrant (if any) to the scene is designed for self-defeat. 6

Like Justice Coleman I believe the better view is that favored by the great weight of authority. Accordingly, in the case at bar, I would hold that the recording of respondent Glass’ conversations with the informant Baker was not a violation of any right guaranteed to Glass by art. I, § 14 of the Constitution of the State of Alaska, and that the superior court erred in suppressing evidence of that tape recording on the grounds stated.

Similar reasoning leads me to the further conclusion that there was no violation of Glass’ rights under art. I, § 22 of the State Constitution. That section provides:

The right of the people to privacy is recognized and shall not be infringed. The legislature shall implement this section.

*886 Unquestionably, as recognized by the superior court, and even respondent, Baker would be entitled to testify concerning her own dealings with Glass and to relate the conversations surrounding those dealings to the best of her recollection. Therefore, the electronic recording of those conversations was not an invasion of respondent’s privacy. The electronic recording simply provided an accurate record of the incriminating statements made to Baker and it is undisputed that Baker could testify personally as to these statements. As stated in Lopez v. United States, supra:

Stripped to its essentials [respondent’s] argument amounts to saying that he has a constitutional right to rely on possible flaws in the agent’s memory or to challenge the agent’s credibility without being beset by corroborating evidence that is not susceptible of impeachment. For no other argument can justify excluding an accurate version of a conversation that the agent could testify to from memory. 7

I consider that argument to be without merit. Like the Supreme Court of the United States in Lopez, I think that the risk respondent took in dealing with Baker included the risk that the words spoken “would be accurately reproduced in court, whether by faultless memory or mechanical recording.” 8 See also State v. Roy, 54 Haw. 513 , 510 P.2d 1066 (1973).

The majority’s reliance on White v. Davis, 13 Cal.3d 757 , 120 Cal.Rptr. 94 , 533 P.2d 222 (1975), is, I believe, completely unwarranted. I see little similarity between the surveillance done in the case at bar and that done in White, where police officers engaged in wholesale secret recording of university class discussions in order to compile dossiers on those present, rather than as part of an investigation of specific criminal activity. Central to the California Supreme Court’s condemnation of the surveillance in that case was the obvious threat posed to First Amendment freedoms, and its recognition that, “ ‘The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’ ” 120 Cal.Rptr. at 101 , 533 P.2d at 229 , quoting the Supreme Court of the United States in Shelton v. Tucker, 364 U.S. 479, 487 , 81 S.Ct. 247, 251 , 5 L.Ed.2d 231 (1960). In short, any governmental interest that might have been furthered by the type of surveillance carried on in that case was held to be outweighed by a free society’s interest in having the university classroom remain a forum for the free exchange of ideas. I certainly applaud the decision in White, but what that all has to do with the situation in the case at bar is beyond my ken.

I would reverse the superior court’s suppression order.

. 343 U.S. at 753-54 , 72 S.Ct. at 972 .

. 373 U.S. at 438-39 , 83 S.Ct. at 1387-88 .

. 401 U.S. at 751 , 91 S.Ct. at 1125 . Mr. Justice Black concurred in the judgment of the Court for the reasons set forth in his dissent in Katz v. United States, 389 U.S. 347, 364 , 88 S.Ct. 507, 518 , 19 L.Ed.2d 576, 589 (1967), namely: that eavesdropping carried out by electronic means involves no “search” or “seizure.” In Katz the Court held that there was a Fourth Amendment violation where government agents attached a listening device to the outside of a telephone booth and recorded the defendant’s end of a telephone conversation. Unlike the facts in this case, no party to that conversation had consented to its being monitored and recorded by the police. Mr. Justice Brennan concurred in the result in White, stating that reversal was required by Desist v. United States, 394 U.S. 244 , 89 S.Ct. 1030 , 22 L.Ed.2d 248 (1969). In Desist the Court held that Katz, supra, would apply prospectively, i. e., only to those electronic surveillances occurring after the date of that decision in 1969. (The surveillance in White v. United States occurred in 1965.) However, Mr. Justice Brennan further expressed the belief that the Fourth Amendment imposes a warrant requirement both where an informant secretly records a conversation with the accused and where he transmits that conversation as was done in the case at bar.

. The commentary to § 4.1 states:

Ultimately, the standard . . . rests on the proposition that the “function of a trial is to seek out and determine the truth or falsity of the charges brought against the defendant.” Lopez v. United States, 373 U.S. 427, 440 [ 83 S.Ct. 1381 , 10 L.Ed.2d 462 ] (1963). To that end, the law must always seek to obtain the best and most reliable evidence. Traditionally, that evidence has consisted mainly of the testimony of witnesses who saw or heard what they later reveal in court. No man knows better, however, the fallibility of human testimony than that man who is trained in the law. The prospect that science through electronic surveillance techniques can provide us with evidence not subject to the frailties of human nature ought, therefore, to be applauded. The use of such techniques in this area, in short, should be encouraged, not discouraged, and they should not be encumbered with administrative procedure. Where trained investigators are conducting routine interviews, reliance may properly be placed in the agents’ memories aided by notes taken contemporaneously. See Campbell v. United States, 373 U.S. 487 [ 83 S.Ct. 1356 , 10 L.Ed.2d 501 ] (1963). But where informants, whose credibility may be suspect, are used, see, e. g., Osborn v. United States, 385 U.S. 323 [ 87 S.Ct. 429 , 17 L.Ed.2d 394 ] (1966), where victims of crimes are engaged in key conversations with the perpetrators themselves, see, e. g., Rathbun v. United States, 355 U.S. 107 [ 78 S.Ct. 161 , 2 L.Ed.2d 134 ] (1957), or where the investigators as such are individually involved and their credibility will be a significant factor in the subsequent trial, see, e. g., Lopez v. United States, 373 U.S. 427 [ 83 S.Ct. 1381 , 10 L.Ed.2d 462 ] (1963), every effort should be made to record the conversations through the best available means. For a recording will reproduce the very words spoken with all the added significance that comes from inflection, emphasis and the other aspects of oral speech. See State v. Reyes, 209 Ore. [Or.] 595, 308 P.2d 182 (1957). The goal of finding the truth in the criminal trial demands no less. The defendant, too, has a stake in the best evidence being presented to the court and jury. Thus, recording as such “involves no ‘eavesdropping’ whatever in any proper sense of that term.” Lopez v. United States, 373 U.S. 427, 439 [ 83 S.Ct. 1381 , 10 L.Ed.2d 462 ], It should not be unthinkingly placed in the same category with wiretapping or bugging. Williams, The Wiretapping-Eavesdropping Problem: A Defense Counsel’s View, 44 Minn.L.Rev. 855, 866 (1960); Schwartz, On Current Proposals To Legalize Wiretapping, 103 U.Pa.L.Rev. 157, 166-67 (1954). Overhearing too, is not eavesdropping. “When one man speaks to another he takes all the risks ordinarily inherent in so doing, including the risk that the man to whom he speaks will make public what he has heard. * * * It is but a logical and reasonable extension of this principle that a man take the risk that his hearer, free to memorize what he hears for later verbatim repetitions, is instead recording or transmitting to another.” Katz v. United States, 389 U.S. 347 , 363 n* [ 88 S.Ct. 507 , 19 L.Ed.2d 576 ] (1967) (White, J. concurring).

The crucial issue in any overhearing or recording situation is instead the right of the *885 witness himself to testify. Where he is entitled to testify, there can be no valid objection to the use of an overhearing or recording device, and the introduction of its product at trial. No one should have the right to exclude the testimony of a third party or a recording and “rely on possible flaws in the [witness’s] . . . memory, or to challenge [his] . . . credibility without being beset by corroborating evidence that is not susceptible of impeachment.” Lopez v. United States, 373 U.S. at 439 [ 83 S.Ct. 1381 ]. Overhearing, too, may be necessary for the protection of an informant. Only the most serious reasons grounded in the most fundamental policy considerations should warrant the failure to use or the suppression of relevant and reliable evidence. Nardone v. United States, 308 U.S. 338, 340 [ 60 S.Ct. 266 , 84 L.Ed. 307 ] (1939). Overhearing or recording involves none of those reasons or considerations.

A.B.A. Standards Relating to Electronic Surveillance (Approved Draft, 1971) at 126-27.

. 227 N.W.2d at 516 . (Emphasis in original.)

. Id. at 522 .

. 373 U.S. at 439, 83 S.Ct. at 1388.

. Id.