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Can an Undercover Agent or Informant Record Conversations in your House?

A government agent may use an audio/video device to record observations and conversations once consensually allowed into your home. At least, that is what the United States Court of Appeals for the Ninth Circuit decided in the case of U.S. v. Wahchumwah, 704 F.3d 606 (9th Cir. 2012). The legal analysis as to whether the Fourth Amendment permits surreptitious recordings to be made by agents of the government whether undercover police or informants facilitated by police, is simply whether the person complaining has a reasonable expectation of privacy (objective) and has exhibited an actual expectation of privacy (subjective). So, does society recognize the situation as providing an expectation of privacy and has the individual taken steps to preserve his privacy so that he or she expects the observable behavior or conversation to be private, e.g. whispering on the phone away from others, etc.?

Well, the Ninth Circuit says there is no reasonable expectation of privacy when you let an unknown government agent into your house to also surreptitiously record you. That Court, and previously the Supreme Court in U.S. v. Hoffa, 87 S.Ct. 408 (1966), reasoned that there is no privacy interest in that which you voluntary reveal to a government agent, and the government does not need a warrant to obtain those recordings. The Ninth Circuit has made a distinction between installation of a hidden camera or recording device in the home by a government agent to record generally to only while he or she is present. See United States v. Nerber, 222 F.3d 597 (9th Cir. 2000). The reason is linked to the issue that a homeowner is voluntarily revealing information to the informant or other agent while he or she is present in the home, but is not undermining his or her objective and subjective expectation of privacy when revealing it to a surreptitious recording device present when the government agent is not. So, one situation is o.k., while the other is not.

Is this a fair result? It is certainly an arguable extension of existing Fourth Amendment jurisprudence, outside the home, in which there can be no complaint about observations, eavesdropping and recording, if either society would not bless the circumstance with an expectation of privacy or the target did not take reasonable steps to make those observations or statements private. However, has this line of cases gone too far?

The U.S. Supreme Court has no problem determining that a government agent posing as a non-government agent (e.g. disguised as a drug addict/user/buyer or dealer) to trick the target into making a transaction and even letting that agent into their home (without the necessity of obtaining a warrant) did not offend either the Fourth Amendment or Fifth Amendment self-incrimination clauses. Now, you can unwittingly let that person into your home and they can record you too and that's o.k. with our Constitution and our Courts. They just can't install anything for recording after they depart.

This is a very interesting way to circumvent the Fourth Amendment's warrant requirement. Ordinarily, the government must obtain a warrant in order to search your home. However, since you are unwittingly inviting the agent into your home (who is deceitful about his or her true identity in order to get into your home or achieve similar goals) and there is no probable cause to believe contraband is present inside (not a stale belief, but actually present on that occasion) to even get a warrant if the government tried, the agent gets to enter and get a good look into your home without violating your constitutional rights. Now, to add insult to injury, that agent or informant gets to make a documentary film about everything available to his or her senses and gets to record incriminating statements made to him or her only because of the target's reliance upon the agent's deceitful representation of his or her identity.

Can the agent also seize evidence (not just contraband) while present in your home without a warrant? Or is it only o.k. if he or she cajoles you into giving consent to take the item? When does the stomping on the Fourth Amendment end here? Stay tuned.