CHARLESTON – Attorney General Darrell McGraw wants the West Virginia Supreme Court of Appeals to declare that police can secretly tape citizens in their homes.
McGraw assistant Barry Koerber told the Justices Nov. 14 that if a police informer secretly tapes someone at home, prosecutors can play the tape in a criminal trial.
Koerber argued that citizens give up any reasonable expectation of privacy when they invite guests into their homes.
Criminal defense attorney Benjamin Conaway of Madison pleaded with the Justices to uphold the principle that a man's home is his castle.
He said, "If people cannot speak privately in their homes they cannot speak privately anywhere."
He asked the Justices to exclude from evidence videotape and audiotape that an informer obtained in the home of suspected drug dealer Eddie Mullens.
Conaway relied on the Fourth Amendment to the U. S. Constitution, which prohibits unreasonable searches, and on the West Virginia Constitution.
Justice Brent Benjamin told him that recent decisions of the U. S. Supreme Court provide no support for Mullens under the Fourth Amendment.
Benjamin asked Conaway if the informer could testify about what he saw and heard in the home. Conaway said yes.
Benjamin asked how that testimony would be different from videotape and audiotape.
Conaway said Mullens knew the informer could repeat what Mullens said. Conaway said that if Justices excluded the tapes, the informer could still testify.
Benjamin said, "Your client invited the invasion of privacy."
When Koerber rose to argue for the state, Chief Justice Robin Davis asked him why the police did not obtain a court order for the taping.
Koerber said police do not seek a court order if the constitution does not require it.
Justice Joseph Albright said, "We have been more protective of the home than the federal government has been."
He said, "It sits wrong with me. Where are we going to start drawing lines that say your home is your castle?"
He said the U. S. Supreme Court has held that the Constitution protects people, not places.
Benjamin said Justices must balance privacy rights with government interest.
Koerber said when a person invites another into a home, the expectation of privacy cannot be reasonable.
Albright said, "What if I carry on a conversation in my home and it comes up two years later in a campaign commercial, in my voice. And I'm saying -"
His voice dropped to a sinister tone and he said, "My name is Big Daddy."
Koerber froze. Albright barked, "That's okay. You like that."
Benjamin asked Koerber if police could take drug sniffing dogs around the perimeter of a home.
Koerber said he was not aware of a case like that.
Chief Justice Robin Davis snapped, "That's not what he asked."
Koerber said it was no different from a police officer knocking on a door and seeing through a window.
Albright asked Koerber whether the tapes would be permissible as evidence if Mullens had said, "You are welcome to come in but don't bring any recording devices."
Koerber said that would preclude the permissibility of the tapes.
Davis said, "So every house in West Virginia should have a little plaque: Leave all recording devices outside."
Koerber said Justices should follow federal case law.
Albright said, "Just cede that part of our Constitution to those nine people in Washington and declare that it has no meaning for West Virginia."
The seats of Justices Spike Maynard and Larry Starcher remained empty throughout oral arguments on the Mullens case and other appeals.
Davis said Maynard and Starcher would participate in deciding all cases.