"Nor should we be too ready to erect constitutional barriers to relevant and probative evidence which is also accurate and reliable. An electronic recording will many times produce a more reliable rendition of what a defendant has said than will the unaided memory of a police agent." 401 U.S. at 751-53, 91 S.Ct. at 1125-1126.

[4] Although the United States Supreme Court has not specifically dealt with the question before us, we find the reasoning in White controlling. The only other case dealing with a similar videotaping issue which we find,' Avery v. State, 15 Md. App. 520, 292 A.2d 728 (1972), cert. denied 410 U.S. 977, 93 S.Ct. 1499, 36 L.Ed.2d 173 (1973), also held White controlling. In that case, Miss Hall reported to the police that the defendant, a doctor, had sexually molested her. With the agreement of Miss Hall and her neighbor, the police installed a close-circuit television camera in Miss Hall's apartment and a monitor in the adjoining apartment. When defendant again visited Miss Hall in her apartment, he injected her intravenously, causing her to lose consciousness, and he then began sexually molesting her. This time, however the whole incident was taped and observed by those watching the monitor. The court held that the tape was admissible:

1.

"[I]n the instant case we have an electronic interception and video transmission of the conduct of the accused toward the victim while in the victim's house which

was transmitted to the police with the full cooperation and consent of the victim as a party to that conduct. The situation here is comparable to one where the conversations between a government agent and the accused are transmitted to police authority by a radio transmitter secreted on the person of the government agent (informer) with the cooperation and ap

Defendant cites People v. Teicher, 90 Misc.2d 638, 395 N.Y.S.2d 587 (Sup. 1977), in support of his contention that a warrant is required. In that case the state obtained a warrant and installed videotape equipment in a dentist's office, and subsequently taped the defendant-dentist sexually molesting a patient. The court held that the videotape was admissible, and the

Idaho 1053

proval of the agent. If the transmittal of the verbal conversation to the police through the cooperation of an informer does not constitute an unreasonable seizure in violation of a 'justifiable expectation of privacy' in White, we see no good or sufficient reason to conclude that a video transmittal of the accused's conduct brought about by the cooperation of Miss Hall should be interpreted as constituting an unreasonable seizure in violation of the appellant's 'justifiable expectation of privacy' in the instant case." 292 A.2d at 742-43.

Defendant attempts to distinguish White on two grounds: (1) White dealt with electronic monitoring of a conversation rather than videotaping, and (2) unlike in White, none of the electronic devices used here were on the person of the government agent. As to the first distinction, we can see no reason why a person's justifiable expectations of privacy would be greater where videotapes are made than where just sound recordings are made. It is not the nature of the recording that is at issue but whether the defendant has an expectation of privacy such that any recording would violate the Fourth Amendment. The defendant is relying on the discretion of the person to whom he is talking, and just as that person can testify as to statements made by the defendant, Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963), so he can testify as to physical actions of the defendant. The videotapes, just like the sound recordings, simply produce the most reliable evidence of the actual transaction, and there is no apparent reason why a sound recording should be admissible and a videotape inadmissible.

The second distinction drawn by the defendant, although much more troublesome.

defendant urges that this illustrates the neces sity of obtaining a search warrant before installing video equipment. That case is distinguishable, however, because the court never discussed whether a warrant was required and because it involved entering the defendant's office in order to install the taping equipment.

1054 Idaho

is also not controlling. Although we are aware of the dangerous potential of an Orwellian state inherent in universal uncontrolled electronic monitoring and videotaping by the State, see, e. g., Fried, Privacy, 77 Yale L.J. 475 (1968); H. Schwartz, Taps, Bugs and Fooling the People (1977); Electronic Visual Surveillance and the Fourth Amendment: The Arrival of Big Brother?, 3 Hastings Const.L.Q. 261 (1976), we do not feel that the use of recordings by the police in their "storefront operations" where they control the rooms and where their agent is involved in the transaction poses such a threat. This is not a case of electronic snooping, where the police indiscriminately monitor motel rooms to discover what is happening in them. See, e. g., 3 Hastings Const.L.Q., supra. Nor is this a case where the police had to surreptitiously enter the abode of another in order to install the recording equipment See, e. g., United States v. Ford, 553 F.2d 146 (D.C. Cir. 1977); Judicial Acceptance of Video Tape as Evidence, 16 Am.Crim.L. Rev. 183, 192-93 (1978) This is simply a case where the defendant entered a room controlled by the police and sold heroin to a police agent in that room. The defendant's expectation of privacy was that Parks would not tell the police of the transaction; just as that expectation is not constitutionally protectable, so there is no constitutional prohibition against admission of the tape where Parks consented to the filming.

Defendant also argues that his Fifth Amendment rights against self-incrimination were violated. Defendant cites no authority to support his position; instead he simply argues that allowing the jury to watch and listen to the defendant on film for approximately one hour where defendant had not freely consented to the filming violated his Fifth Amendment rights.

2. Defendant argues that his expectation of privacy is greater here because he was living in the room no. 8 and paying rent to Mickey Parks. However, his testimony was very indefinite as to whether or when he was living in room no. 8, while Parks testified that defendant was not living there at the times that the recordings were made, and Lt. Galland testified

In United States v. Craig, 573 F.2d 455 (7th Cir. 1977), cert. denied 439 U.S. 820, 99 S.Ct. 82, 58 L.Ed.2d 110 (1978), the court held admissible a recording made of a phone conversation where one party had consented to the recording. With regard to defendant's argument that his Fifth Amendment rights had been violated, the court held as follows:

"Further, Walker's contention that his Fifth Amendment rights were violated since he should have been made aware of his rights prior to making any statement is of no avail. Advice of rights is required in custodial situations where the inherent pressures to speak in the face of governmental authority are present. Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1; United States v. Gardner, 516 F.2d 334 (7th Cir. 1975), cert. denied, 423 U.S. 861, 96 S.Ct. 118, 46 L.Ed.2d 89 (1975). As Judge Bauer stated in United States v. Bastone, supra, 526 F.2d at 977:

'A person is not entitled to warnings simply because an investigation has focused upon him. The test is not focus alone, but rather, focus plus custodial interrogation. Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).'

"While it is clear the investigation had focused upon defendant Walker, his recorded conversations with Carpentier involved no confrontation with governmental authority in the context of a custodial interrogation calling for Miranda warnings. Consequently, we must reject Walker's contention that the recordings violated his Fifth Amendment rights." 573 F.2d at 474.

that to his knowledge defendant was not living there at the time the tapes were made, but was living in another room in the motel. Since the police originally rented the room and apparently had control over it, this argument fails to persuade us that the trial court erred in denying the motion to suppress.

In People v. Fenelon, 14 Ill.App.3d 622, 303 N.E.2d 38 (1973), the court held that the waiver of Miranda rights is not a prerequisite to the admission of a video recording of physical tests to determine intoxication. The court reasoned that where the evidence of the tests themselves is admissible, then the recording of those tests is admissible. The United States Supreme Court in Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), although not concerned with electronic surveillance, held that "a necessary element of compulsory self-incrimination is some kind of compulsion." Id. at 304, 87 S.Ct. at 414. As noted in that case, "[i]n the present case no claim has been or could be made that the petitioner's incriminating statements were the product of any sort of coercion, legal or factual." Id. Defendant here acted volun

Idaho 1055

(1) district judge was justified in ordering trial de novo of divorce action wherein house in which parties resided was determined to be community property, where magistrate's memorandum opinion was conclusory and failed to set forth rationale underlying his decision, notwithstanding fact that district court also conducted appellate review and eventually concluded that magistrate's disposition was not supported by substantial evidence and was not in conformity with applicable law, and (2) order for trial de novo precluded appeal of district court's decision.

Appeal dismissed.

McFadden, J., filed specially concurring

opinion.

Bistline, J., filed dissenting opinion.

Affirmed.

DONALDSON, C. J., and SHEPARD, BAKES and MCFADDEN, JJ., concur.

KEY NUMBER SYSTEM

101 Idaho 270

Virgil George WINN, Plaintiff-Respondent,

V.

Alfreda E. WINN, Defendant-Appellant.

No. 12951.

Supreme Court of Idaho.

June 2, 1980.

Wife appealed from an order of the District Court, Fourth Judicial District, Ada County, Jesse R. Walters, J., which reversed magistrate's decision in a divorce action and ordered a trial de novo in the district court. The Supreme Court, Bakes, J., held that:

147(1)

Decisions by district court dismissing. affirming, or reversing or remanding appeal are appealable. Appellate Rules, Ruie 11(a)(1).

2. Justices of the Peace 171(1)

District court may conduct appellate review of magistrate's decision or district court may choose to wipe slate clean by ordering trial de novo and beginning case anew. Rules of Civil Procedure, Rule 83b, u); I.C. § 1-2213(2).

3. Justices of the Peace

171(1)

District court, having undertaken task of conducting appellate review of magstrate's decision, is not as a result precluded from conducting trial de novo. Rules of Civil Procedure, Rule 83(b, u).

4. Justices of the Peace 164(4)

When circumstances prevent decisive, complete, or meaningful appellate review of magistrate's decision, it may be advisable for district court to augment trial record or create new record in order completely to resolve the controversy; this occurs where trial court's findings of fact are confused or in conflict, or where findings on particular issue are lacking, and resort to record does not show clearly what findings are correct. Rules of Civil Procedure, Rule 83(b, u)