4. Criminal Law

393(1), 394.1(2)

In prosecution for two counts of delivering heroin, evidence consisting of videotapes and sound recordings made by police of the two transactions, which took place in motel room rented and controlled by police in which concealed microphone and twoway mirror were installed, did not violate defendant's constitutionally protectable expectation of privacy nor his right against self-incrimination, and was. admissible. U.S.C.A.Const. Amends. 4, 5.

Mark L. Clark of Kibler, Hamilton & Clark, Nampa, for defendant-appellant.

David H. Leroy, Atty. Gen., L. Mark Riddoch, Deputy Atty. Gen., Boise, for plaintiff-respondent.

BISTLINE, Justice.

Defendant-appellant Donald Jennings was convicted by a jury of two counts of delivering heroin. Before trial, the defendant moved to suppress videotapes and sound recordings made by the police of the two transactions. Defendant appeals from the judgment of conviction, challenging the order denying his motion to suppress.

For approximately six months (February to July 1977), the City-County Narcotics Division of Canyon County operated a "storefront" undercover operation at the Darling Motel in Caldwell. The Narcotics Division rented two adjacent rooms at the motel. One room (room no. 8) was set up as a normal motel room, but with a concealed microphone in the door jamb and a two-way mirror in the wall by which officers in the adjacent room could observe, videotape and record the transactions in room no. 8.

Mickey Parks, an undercover agent, used room no. 8 to conduct illegal activities, although he did not live there personally. The defendant and Parks both testified that the defendant had lived in room no. 8, but they disagreed as to when: defendant testified that as far as he knew he had lived there in March when the alleged transactions occurred, but he wasn't sure; Parks testified that the defendant lived there in

May or June, but not in March. Lt. Galland, one of the officers operating the videotape equipment, testified that to his knowledge defendant was not living in room no. 8 in March, although he felt that the defendant was living in another room in the motel.

Lt. Galland also testified that he had observed the defendant through the twoway mirror between fifteen and twenty times. No search warrant was ever obtained, although Officer Galland testified that he would have gotten a warrant if the prosecuting attorney had advised him that he needed one.

On March 4 and 16, 1977, the officers in the adjoining room observed, videotaped and recorded the defendant allegedly delivering heroin to Parks. The officers testified to observing the transactions, and the tapes were shown to the jury.

Defendant argues on appeal that admitting the videotapes and recordings into evidence violated both his Fourth and Fifth Amendment rights, and that they should have been suppressed. He does not argue on appeal that the testimony of Parks or the officers as to their observations of the transactions should also have been exclud

ed.

[1] The Fourth Amendment protects those claiming a "justifiable," a "reasonable," or a "legitimate" expectation of privacy from government-initiated electronic surveillance. Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979). See United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

[2, 3] A legitimate expectation of privacy "means more than a subjective expectation of not being discovered." Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 430 n.12, 58 L.Ed.2d 387 (1978). Thus the Fourth Amendment does not protect "a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." Hoffa v. United States, 385 U.S. 293, 302, 87 S.Ct. 408, 413,

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17 L.Ed.2d 374 (1966). Nor does it protect the defendant where a police informant records the conversation on electronic equipment he carries on his person, Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963), or where the informant carries electronic equipment "which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency." United States v. White, 401 U.S. 745, 751, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453 (1971). See also United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979). As stated in Lopez v. United States, 373 U.S. 427, 439, 83 S.Ct. 1381, 1388, 10 L.Ed.2d 462 (1963)

"[t]he Government did not use an electronic device to listen in on conversations it could 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.

"Stripped to its essentials, petitioner'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." In United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), the court was confronted with the issue of "whether the Fourth Amendment bars from evidence the testimony of governmental agents who related certain conversations which had occurred between defendant White and a government informant, Harvey Jackson, and which the agents overheard by monitoring the frequency of a radio transmitter carried by Jackson and concealed on his person." Id. at 746-47, 91 S.Ct. at 1123 (footnote omitted). Four of the conversations took place in Jackson's

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home, two took place in his car, one in a restaurant and one in defendant's home. The Court in a plurality opinion upheld the admissibility of the testimony as follows: "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] 408, 17 L.Ed.2d 374. 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 [343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270]. 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 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.

"Our problem is not what the privacy expectations of particular defendants in particular situations may be or the extent to which they may in fact have relied on the discretion of their companions. Very probably, individual defendants neither know nor suspect that their colleagues have gone or will go to the police or are carrying recorders or transmitters. Otherwise, conversation would cease and our problem with these encounters would be nonexistent or far different from those now before us. Our problem, in terms of the principles announced in Katz, is what

expectations of privacy are constitutionally 'justifiable'-what expectations the Fourth Amendment will protect in the absence of a warrant. So far, the law permits the frustration of actual expectations of privacy by permitting authorities to use the testimony of those associates who for one reason or another have determined to turn to the police, as well as by authorizing the use of informants in the manner exemplified by Hoffa and Lewis [Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312]. If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State's case. See Lopez v. United States, 373 U.S. 427, [83 S.Ct. 1381, 10 L.Ed.2d 462] (1963).

"Inescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police. If he sufficiently doubts their trustworthiness, the association will very probably end or never materialize. But if he has no doubts, or allays them, or risks what doubt he has, the risk is his. In terms of what his course will be, what he will or will not do or say, we are unpersuaded that he would distinguish between probable informers on the one hand and probable informers with transmitters on the other. Given the possibility or probability that one of his colleagues is cooperating with the police, it is only speculation to assert that the defendant's utterances would be substantially different or his sense of security any less if he also thought it possible that the suspected colleague is wired for sound. At least there is no persuasive evidence that the difference in this respect between the electronically equipped and the unequipped agent is substantial enough to require discrete constitutional recognition, particularly under the Fourth Amendment which is ruled by fluid concepts of 'reasonableness.'