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No Warrant Required for Undercover Agent to Use Concealed Recording Device, Says Ninth Circuit

Fourth Amendment
United States v. Wahchumwah By Pio Szamel – Edited by Geng Chen United States v. Wahchumwah, No. 11-30101 (9th Cir. Nov. 27, 2012) Slip opinion (hosted by the Electronic Frontier Foundation) The Ninth Circuit affirmed a ruling by the Eastern District of Washington which held that the United States Fish and Wildlife Service’s use of a concealed audiovisual recording device on the person of an undercover agent to record inside a defendant’s home without a warrant did not violate the defendant’s Fourth Amendment rights. In inviting the undercover agent into his home, the defendant “forfeited his expectation of privacy as to those areas that were knowingly expose[d] to” the undercover agent. Wahchumwah, No. 11-30101 at 8. Since the recording device “reveal[ed] no more than what was already visible to the agent,” it implicated no additional privacy concerns. Id. FindLaw provides an overview of the case. The Electronic Frontier Foundation (“EFF”), which had filed an amicus brief in support of Wahchumwah, criticizes the decision for opening the door to government surveillance and recording of “every intimate detail” of a person’s home. The defendant in the case, Ricky Wahchumwah, was convicted of illegally selling golden eagle parts to an undercover agent of the U.S. Fish and Wildlife Service. Acting on a tip, the Fish and Wildlife Service had the agent befriend Wahchumwah and express interest in purchasing eagle parts from him. The agent, wearing a concealed buttonhole audiovisual recording device, was invited into Wahchumwah’s home where he inspected and purchased eagle feathers. In reviewing de novo the admissibility of evidence obtained as a result of the recording, the Ninth Circuit found no Fourth Amendment violation “because the Fourth Amendment’s protection does not extend to information that a person voluntarily exposes to a government agent, including an undercover agent.” Wahchumwah at 4. The court noted that in United States v. White, 401 U.S. 745 (1971), the Supreme Court had approved the warrantless use of audio recording devices, and that other circuits have found the use of a concealed audiovisual recording device similarly valid. It also distinguished United States v. Nerber, 222 F.3d 597 (9th Cir. 2000), as that case involved “the warrantless installation of a hidden video camera,” Wahchumwah at 8, and Kyllo v. United States, 533 U.S. 27 (2001), since in Kyllo the defendant hadn’t invited any government agents into his home. In its amicus brief, the EFF analogized the use of the recording device in this case to the use of a GPS tracking device to track a suspect’s car in United States v. Jones, 132 S. Ct. 945 (2012). The EFF argued that as with the GPS tracker in the Jones case, the audiovisual recording device in this case allowed the government to aggregate much more information than any agent could remember unaided, even though all of the individual pieces of information were available to the agent. The Ninth Circuit rejected this comparison, noting that the Jones majority rested its ruling on the trespass involved in placing the GPS tracking device, and that moreover Jones involved twenty-eight continuous days of GPS surveillance whereas the recording in this case lasted only for the few hours the undercover agent was present in the defendant’s home. In this case the audiovisual recording device merely documented the presence and sale of eagle tail plumes which were openly and obviously presented to the undercover agent, making it arguably a poor vehicle for the EFF’s concerns about the capability of electronic recording equipment to capture details a person would miss. It would be interesting to see a court consider a case in which a concealed audiovisual recording device captured relevant details its wearer had missed, or better yet, relevant details not perceptible at all to its wearer in real time. Pio Szamel is a 1L at Harvard Law School.