Belmer v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Frank and Senior Judge Hodges
Argued at Chesapeake, Virginia

AKEIM ELIJAH BELMER
OPINION BY
v. Record No. 2344-00-1 JUDGE ROBERT P. FRANK
OCTOBER 2, 2001
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
A. Bonwill Shockley, Judge

Michael F. Fasanaro, Jr. (Abrons, Fasanaro &
Sceviour, P.L.L.C., on brief), for appellant.

(Mark L. Earley, Attorney General; Leah A.
Darron, Assistant Attorney General, on
brief), for appellee.

Akeim Elijah Belmer (appellant) was convicted by a jury of

robbery, in violation of Code § 18.2-58, use of a firearm during

the commission of a felony, in violation of Code § 18.2-53.1,

and conspiracy to commit robbery, in violation of Code

§ 18.2-22. On appeal, appellant contends the trial court erred

in denying his motion to suppress a statement he made to his

mother in the police interrogation room. For the reasons that

follow, we affirm the convictions.

I. BACKGROUND

In November 1999, Jason Bonelli and appellant were students

at Tallwood High School in the City of Virginia Beach. Bonelli
told appellant he wanted to purchase stereo equipment for his

car.

On November 16, 1999, appellant told Bonelli that

appellant's brother, Shaheed Williams, had a compact disc player

for sale. Appellant arranged with Bonelli to meet at Brandon

Middle School at 6:00 p.m. that evening, where Williams would

sell Bonelli the stereo. Appellant told Bonelli to bring

"around $200.00."

Bonelli drove to the school, where he met appellant and

Demetrius Norman, appellant's friend. A "masked man" approached

Bonelli, and when appellant attempted to intervene, the

assailant ran after appellant, chasing him behind some

dumpsters. Norman drove away, and as Bonelli attempted to do

the same, the assailant entered Bonelli's vehicle, shoved a gun

in Bonelli's ribs, and said, "I'm going to spray you." The

assailant then took $214 from Bonelli's pants pocket and fled.

Appellant came from behind the dumpsters after the

assailant left and asked Bonelli what had happened. Appellant

appeared "not very scared." Bonelli believed he had been set

up. He told appellant he knew appellant was involved in the

robbery and that he would contact the police. Appellant told

Bonelli to "drop it." Bonelli asked appellant "where his

brother was." Appellant did not give him an answer. Appellant

then said, "Oh, well, he's at home."

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 Norman testified that he picked appellant up at appellant's

house and drove him to Brandon Middle School where appellant

planned to rob Bonelli, but Norman admitted telling the police

at least two or three different versions of the incident.

Appellant, a juvenile, was arrested and taken to police

headquarters. Appellant entered through the rear door of the

detective bureau.

Detective J.L. Gandy met appellant's mother and her

boyfriend in the lobby where a posted sign stated that the

interview rooms were "electronically monitored and may be

recorded." The sign is six to twelve inches in size. The

interview room is permanently equipped with a glass window

through which interviews can be heard and observed.

It is uncontroverted that appellant did not pass the notice

sign, although his mother and her boyfriend passed through the

lobby to enter the interview room. The wall on which the notice

sign was posted also contained a telephone, a large mural, and

other posted items. The detective did not point out the sign to

appellant's mother or her boyfriend. The interview room

contained no signs warning of any monitoring.

In the interview room, the detective read appellant his

Miranda rights. The mother's boyfriend, who identified himself

as appellant's stepfather, indicated appellant would make no

statements until he consulted with an attorney. Detective Gandy

"felt it would be best if [appellant] consulted a lawyer before

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anything was said." The detective then left the interview room

and went to the "monitoring room," which contained equipment

that allowed him to overhear conversations in the interview

room. The detective testified he allowed appellant, his mother

and the mother's boyfriend to remain in the interview room

because the detective had "some paperwork to complete" and he

wanted to see if they would talk to each other.

Detective Gandy then electronically overheard a "whispered"

conversation between appellant and his mother's boyfriend. The

detective testified he overheard appellant say that "their other

son may be involved also." Appellant whispered that "he didn't

know how the police found out." He said, "Demetrius must have

told them." Detective Gandy indicated it appeared appellant was

trying to "hide" the conversation.

Appellant filed a motion to suppress the statements

"overheard" by Detective Gandy. The trial court denied the

motion, finding appellant had no reasonable expectation of

privacy in a police station, "especially in an interrogation

room."

II. ANALYSIS

The Commonwealth contends that the issue on appeal is

procedurally defaulted under Rule 5A:18. When the trial court

denied appellant's motion to suppress, defense counsel

responded, "Yes, sir." The Commonwealth maintains that

counsel's response did not preserve appellant's claim on appeal.

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 "The primary function of [Rule 5A:18] 'is to alert the

trial judge to possible error so that the judge may consider the

issue intelligently and take any corrective actions necessary to

avoid unnecessary appeals, reversals and mistrials.'" Johnson

v. Commonwealth, 20 Va. App. 547, 553, 458 S.E.2d 599, 601

(1995) (en banc) (citation omitted).

In this case, the hearing on the motion to suppress clearly

alerted the trial court to the issue. Evidence was presented

and arguments were heard. Requiring appellant to "except" to

the court's denial of his motion "would, in effect, recreate the

requirement of noting an exception to a final adverse ruling of

the trial judge." Martin v. Commonwealth, 13 Va. App. 524, 530,

414 S.E.2d 401, 404 (1992) (en banc). "As we stated in Martinez

v. Commonwealth, 10 Va. App. 664, 668, 395 S.E.2d 467, 470

(1990), aff'd as modified, 241 Va. 557, 403 S.E.2d 358 (1991),

'the requirement for an exception [has been] eliminated.'" Id.

We, therefore, conclude this issue is not procedurally defaulted

under Rule 5A:18.

While neither appellant nor the Commonwealth directly

addressed Code §§ 19.2-61 to 19.2-70.3, Interception of Wire,

Electronic or Oral Communications, we find it necessary to

address this chapter of the Code. 1

1
Appellant's argument in the trial court was sufficient to
preserve for appeal the question of application of this chapter
of the Code. Although appellant did not cite a particular code
section, he argued, "the law is clear. It's against the law to

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 In general, Chapter 6 of Title 19.2
regulates (1) the interception, by any
electronic, mechanical, or other device, of
certain "wire or oral communications" as
defined in the chapter, and (2) the
disclosure by any person of the contents of
any such wire or oral communication which
has been so intercepted. Except as
permitted by the terms of the chapter, it is
unlawful, constituting a felonious offense,
for any person willfully to intercept, or
willfully to disclose the contents of, any
wire or oral communication. Va. Code
§ 19.2-62.

Wilks v. Commonwealth, 217 Va. 885, 887, 234 S.E.2d 250, 251

(1977).

Code §§ 19.2-66 and 19.2-68 establish a procedure under

which the Attorney General may apply for an order authorizing

the interception of a wire or oral communication. In this case,

it is not claimed that such an order was entered.

intercept an oral conversation -- and this is clearly an oral
conversation [--] by electronic means . . . without the consent
of one of the participants in the conversation where the
participants are in a situation where there is a reasonable
expectation of privacy." Furthermore, as long as an issue is
properly preserved, we are not required to disregard controlling
statutes or rules of court merely because the trial court or
counsel failed to take cognizance of them. As long as the issue
was properly preserved, an appellate court shall decide the
issue according to controlling legal principles. Rule 5A:18
"does [not] prevent this Court, on its own initiative, from
relying on statutory or judicial authority that was not
presented to the trial court or referred to in the briefs
submitted by the parties." Lash v. County of Henrico, 14 Va.
App. 926, 929, 421 S.E.2d 851, 853 (1992) (en banc) (citing R.
Martineau, Modern Appellate Practice § 3.9 (1983)).
Nevertheless, the analysis is the same under the statutory
scheme as under the Fourth Amendment. Wilks v. Commonwealth,
217 Va. 885, 889, 234 S.E.2d 250, 252 (1977).

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 Code § 19.2-65 creates an "exclusionary rule" for any

information obtained in violation of the chapter.

Whenever any wire or oral communication has
been intercepted, no part of the contents of
such communication and no evidence derived
therefrom may be received in evidence in any
trial, hearing or other proceeding in or
before any court, grand jury, department,
officer, commission, regulatory body,
legislative committee or other agency of
this Commonwealth or a political subdivision
thereof if the disclosure of that
information would be in violation of this
chapter.

Code § 19.2-65.

Code § 19.2-63.1 requires the Chief of Police to have

direct control over any such device which is in the possession

of the police department. See Code § 19.2-63.1.

We begin our analysis with the definition of "oral

communication" under Code § 19.2-61. Code § 19.2-61 states,

"'Oral communication' means any oral communication uttered by a

person exhibiting an expectation that such communication is not

subject to interception under circumstances justifying such

expectations but does not include any electronic

communication . . . ." "Thus, an oral communication is not

protected by Chapter 6 unless (1) the speaker exhibits the

expectation that his conversation will not be intercepted, and

(2) the circumstances justify the expectation of

noninterception." Wilks, 217 Va. at 888, 234 S.E.2d at 252.

"[T]he justifiable expectation of noninterception contained in

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the statutory definition of the term 'oral communication' is

equivalent to the constitutional expectation of privacy." Id.

at 889, 234 S.E.2d at 252.

In a Fourth Amendment context, protection is afforded "if,

first, a person has exhibited an actual, subjective expectation

of privacy in the subject area and, second, if that expectation

is one that society is prepared to recognize as 'reasonable.'"

Wellford v. Commonwealth, 227 Va. 297, 301, 315 S.E.2d 235, 237

(1984) (citing Katz v. United States, 389 U.S. 347, 361 (1967);

United States v. Knotts, 460 U.S. 276 (1983); Rakas v. Illinois,

439 U.S. 128, 143 n.12 (1978); Patler v. Slayton, 503 F.2d 472

(4th Cir. 1974); State v. Brady, 406 So.2d 1093 (Fla. 1982),

cert. granted sub nom. Florida v. Brady, 456 U.S. 988 (1982)).

The record clearly establishes that appellant manifested a

subjective expectation of privacy in the interview room at the

time he made the statements. It was uncontroverted that

appellant, a juvenile, entered police headquarters through the

rear door of the detective bureau and, thus, did not pass a sign

posted in the lobby which indicated that conversations in the

interview rooms were "electronically monitored and may be

recorded." Although appellant's mother and her boyfriend may

have had an opportunity to see those signs, the record

establishes that they made no statements to appellant about the

signs.

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 Further, the record provides no indication that appellant

said anything to Detective Gandy about the offense for which he

had been arrested. When Detective Gandy, appellant, appellant's

mother, and her boyfriend, Carl Gray, met in the interview room,

Gray told Detective Gandy that appellant would not make any

statements until they had consulted a lawyer. Appellant said

nothing to contradict Gray's statement. When Detective Gandy

left the room, appellant whispered to Gray at a level indicating

to Detective Gandy that appellant was "trying to hide what [he]

was saying" and that appellant's whispers likely would not have

been heard outside the interview room if not for the electronic

monitoring equipment located inside the room.

Thus, the only conclusion from the evidence is that

appellant manifested a subjective expectation of privacy in the

closed interview room. The only issue in dispute is whether

this expectation of privacy is one that society is prepared to

recognize as reasonable. See Wellford, 227 Va. at 301, 315

S.E.2d at 237.

Most courts considering the issue have held that prisoners

generally have no expectation of privacy in conversations with

visitors because routine monitoring and recording of such

conversations is a reasonable means of maintaining prison

security. See, e.g., United States v. Hearst, 563 F.2d 1331,

1345-46 (9th Cir. 1977), cert. denied, 435 U.S. 1000 (1978). In

dicta in Lanza v. New York, 370 U.S. 139 (1962), the United

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States Supreme Court addressed the Fourth Amendment implications

of a jail communication that was electronically intercepted.

Lanza spoke to his brother, who was an inmate in a New York

jail, in a jail visiting room, and the conversation was recorded

by the police, unknown to Lanza or his brother. Id. at 139.

The recorded conversation was transcribed. Id. at 141. A copy

of that transcript was given to a committee of the New York

legislature investigating possible corruption in the state

parole system. Id.

Lanza was called to testify before the legislative

committee, which posed a number of questions to Lanza based on

the transcript of the taped jail conversation. Id. at 140.

Lanza refused to answer the questions and subsequently was

indicted, tried and convicted for failure to testify before the

legislative committee. Id.

Lanza argued before the United States Supreme Court that

the interception of his conversation violated his Fourth

Amendment rights and, therefore, that the committee's use of the

transcript was impermissible. Id. at 141-42. Essentially,

Lanza argued that the visitors' room in the jail was a

constitutionally protected area and that the eavesdropping was

an unreasonable search and seizure. Id. at 142.

The Supreme Court noted that "a jail shares none of the

attributes of privacy of a home, an automobile, an office or a

hotel room." Id. at 143. The Court further stated, "In prison,

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official surveillance has traditionally been the order of the

day." Id. However, the Court continued, "[I]t may be assumed

that even in a jail, or perhaps especially there, the

relationships which the law has endowed with particularized

confidentiality must continue to receive unceasing

protection . . . ." Id. at 143-44.

This language in Lanza suggests that a privileged

relationship can affect the determination of whether a

reasonable expectation of privacy exists in a particular

situation. However, appellant did not argue to the trial court

nor in his brief that any privilege 2 applied here.

Only at oral argument, in response to specific questions

from the Court, did counsel mention the parent-child

relationship as a factor to consider in the analysis of a

reasonable expectation of privacy. No argument or case law was

presented, however, to support the existence of a parent-child

privilege.

Therefore, we cannot now consider the issue of privilege on

appeal and address only whether appellant had a reasonable

expectation of privacy in the police interview room. "We do not

address" issues that the parties failed to raise at trial and

failed to present or develop on appeal. Powell v. Commonwealth,

36 Va. App. 231, 232, 548 S.E.2d 926, 927 (2001).

2
While the dissent's discussion of a parent-child privilege
is compelling, we do not feel we can reach that issue.

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 In Ahmad A. v. Superior Court, 263 Cal. Rptr. 747, cert.

denied, 498 U.S. 834 (1990), the California Court of Appeal

considered the secret recording of a conversation between a boy

and his mother in a police interrogation room. That court

explained the continuing viability of Lanza:

Although "Lanza epitomized the 'protected
areas' type of analysis repudiated in [Katz
v. United States (1967) 389 U.S. 347, 88
S. Ct. 507, 19 L.Ed.2d 576]," federal courts
"have consistently followed Lanza and upheld
admission of monitored conversations in
jails or police stations. 'It still appears
to be good law that so far as the Fourth
Amendment is concerned, jail officials are
free to intercept conversations between a
prisoner and a visitor. This was the
ruling in Lanza v. New York [citation] and
it appears to have survived Katz v. United
States [citation].' [Citations.]" (Id., at
pp. 29-30, 196 Cal. Rptr. 704, 672 P.2d
110.) "[N]o federal case has repudiated the
Lanza dictum or excluded a jail or police
station conversation from evidence.
[Citation.] If occasional state court cases
such as [De Lancie v. Superior Court, supra,
31 Cal.3d 865, 183 Cal. Rptr. 866, 647 P.2d
142] take a different course, they do so on
state, not federal grounds. Bound in
matters of federal law by the United States
Supreme Court, which has never rejected its
dictum in Lanza v. New York, and influenced
by decisions of the lower federal courts, we
are impelled to conclude that the Lanza
dictum continues to control in federal law."
(Id., at p. 30, 196 Cal. Rptr. 704, 672 P.2d
110.)
Beyond the sparse and uncontested facts
attested to by the investigating officer,
the record contains no evidence of a
subjective expectation of privacy as to the
minor's conversation with his mother.
Moreover, any such belief would not have
been objectively reasonable in a police
station given the conclusions reached in

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 Donaldson v. Superior Court, supra. (Ibid.)
Indeed, in the jail house the age-old truism
still obtains: "Walls have ears." Thus, we
hold the minor had no right to exclusion of
the evidence under the Fourth Amendment.
(See also People v. Lucero (1987) 190 Cal.
App.3d 1065, 1067-1069, 235 Cal. Rptr. 751.)

Id. at 751-52.

Generally, the federal courts continue to find a suspect

has no reasonable expectation of privacy in areas controlled by

the police. As the Court of Appeals for the Eighth Circuit

explained when finding the surreptitious recording of a

defendant's conversation in a police vehicle did not violate a

reasonable expectation of privacy:

A marked police car is owned and operated by
the state for the express purpose of
ferreting out crime. It is essentially the
trooper's office, and is frequently used as
a temporary jail for housing and
transporting arrestees and suspects. The
general public has no reason to frequent the
back seat of a patrol car, or to believe
that it is a sanctuary for private
discussions. A police car is not the kind
of public place, like a phone booth, where a
person should be able to reasonably expect
that his conversation will not be monitored.

United States v. Clark, 22 F.3d 799, 801-02 (8th Cir. 1994).

The whispered conversation between appellant, his mother,

and her boyfriend occurred in the police station's interview

room, a room designed for the disclosure, not the hiding, of

information. The room had a one-way glass mirror. Detective

Gandy did not suggest appellant could speak freely to his mother

and her boyfriend without fear of eavesdropping. The police

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were in the middle of an investigation into an armed robbery,

and appellant knew he was an object of that inquiry. He had no

reason to believe this interrogation room was a "sanctuary for

private discussions."

Some courts have found a reasonable expectation of privacy,

independent of a privilege, if, while in police custody, the

officers "lull" a suspect into believing the conversation will

be private. See People v. A.W., 982 P.2d 842, 848-49 (Colo.

1999) (detective's assurances that "nobody was behind the

two-way mirror" and "he would not be listening" gave rise to a

reasonable expectation of privacy regarding A.W.'s conversation

with his father in an interrogation room); People v. Plyler, 22

Cal. Rptr. 2d 772, 775 (1993) (trial court appropriately found

deputy did not lull Plyler into believing his phone calls would

not be recorded).

In People v. Hammons, 5 Cal. Rptr. 2d 317, 320 (1991),

after questioning by the police the defendant requested an

opportunity to talk to the codefendant who was also at the

police station answering questions. Both men were taken in an

interview room. Id. at 319. The officer told the codefendants,

"we're leaving" and they could "talk by [them]selves." Id. The

officer acknowledged in his testimony that he "led them to

believe that this was in fact a private conversation between

just the [two codefendants]." Id. He then secretly recorded

their incriminating conversation.

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 Here, Detective Gandy made no statements to appellant

regarding his ability to converse with his mother and her

boyfriend. Appellant did not ask to speak privately with his

mother. 3 When the boyfriend indicated to Detective Gandy that

appellant wanted to talk to a lawyer, the detective simply left

the room. Detective Gandy did not tell them to feel free to

discuss the incident privately. He simply left them alone in

the room.

Simply leaving a suspect alone with another individual

while in police custody does not create a reasonable expectation

of privacy that society is prepared to recognize. Hearst, 563

F.2d at 1345 (Lanza remains good law); State v. Strohl, 587

N.W.2d 675, 682 (Nebr. 1999) ("The greater weight of authority

[follows] Lanza and [allows covert monitoring of conversations]

in police stations, jail visiting rooms, or jail cells."); State

v. Howard, 728 A.2d 1178, 1182-83 (Del. Super. Ct. 1998) (courts

generally find no reasonable expectation of privacy "for

overheard or monitored conversations in police cars, police

interview rooms, or in prisons"); State v. Smith, 641 So.2d 849,

851-52 (Fla. 1994) (a person has no reasonable expectation of

privacy in a conversation in a police car); Plyler, 22 Cal.

Rptr. 2d at 775 (ordinarily, a detained person has no reasonable

3
In addition, the record provides no information addressing
the reasonability of defendant's assumption that his mother and
her boyfriend would not repeat the substance of this
conversation.

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expectation that the police will not monitor and record

incriminating statements).

Because the only "lulling" done by the detective was

leaving appellant with his mother and her boyfriend, we cannot

find as a matter of law that appellant's expectation of privacy

was reasonable.

For these reasons, we hold that the trial court did not err

when it denied the motion to suppress.

Affirmed.

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Elder, J., dissenting.

I would hold that a right of family privacy protecting

certain communications between parents and children is implicit

in Virginia law and protects the conversation at issue in this

case. 4 Even in the absence of such a privacy right, I would hold

that appellant's subjective expectation of privacy in the

interview room was one that society should be prepared to

recognize as reasonable under the facts of this case.

Therefore, I respectfully dissent.

As the majority observes, the United States Supreme Court

noted in Lanza v. New York, 370 U.S. 139 (1962), that "it may be

assumed that even in a jail, or perhaps especially there, the

relationships which the law has endowed with particularized

confidentiality must continue to receive unceasing

protection . . . ." Id. at 143-44.

4
The majority holds in footnote 2 that appellant did not
preserve for appeal the issue of whether a parent-child
privilege exists. As set out infra in the dissent, I would
recognize a right of privacy rather than a true privilege.
Thus, I would hold that the existence of a parent-child
relationship which gives rise to a right of privacy is merely a
factor for consideration in determining whether appellant had a
reasonable expectation of privacy. Because appellant properly
preserved for appeal the reasonable expectation of privacy
issue, I would hold we also may consider the impact of the
parent-child relationship on that expectation. This is
precisely the approach appellant advanced in oral argument
before this Court. As the majority acknowledges in footnote 1,
"[a]s long as [an] issue [is] properly preserved, an appellate
court shall decide the issue according to controlling legal
principles."

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 Although the Supreme Court's discussion of prisoners'

privacy and confidential relationships in Lanza was dicta, see

id. (noting that Lanza did not claim violation of any special

relationship), other courts have relied upon the language in

Lanza to recognize exceptions to the generally accepted

principle that no Fourth Amendment reasonable expectation of

privacy exists in prisoners' conversations with their visitors,

see, e.g., North v. Super. Ct., 502 P.2d 1305, 1309-12 (Cal.

1972) (en banc).

In North, for example, the Supreme Court of California held

that North had a reasonable expectation of privacy in a

conversation with his wife under the circumstances of that case.

Id. at 1311-12. The evidence established that the conversation

occurred during ordinary visiting hours in a detective's office

and that it was "a frequent and normal practice to permit such

visits to take place in a detective's office." Id. at 1307.

During the five-minute visit, police secretly monitored and

recorded North's conversation with his wife. Id.

In holding the contents of the conversation should have

been suppressed, the court emphasized that the conduct of a

police detective in "surrendering to petitioner and his wife

[the detective's] own private office so that they might converse

and then by exiting and shutting the door, leaving them entirely

alone," "spoke as clearly as words" and had the effect of

"lull[ing]" North and his wife "into believing that their

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conversation would be confidential." Id. at 1311. Those

circumstances, "coupled with the statutory presumption that a

conversation between spouses is . . . made in confidence

constituted a sufficient showing by [North] to establish a

reasonable expectation of privacy." 5 Id. (citation omitted).

But see Ahmad A. v. Super. Ct., 215 Cal. App. 3d 528, 535-36 &

n.5 (Cal. Ct. App. 1989) (refusing to apply North to jailhouse

conversation between minor and parent because California law

does not recognize a parent-child privilege of confidentiality).

In People v. Hammons, 235 Cal. App. 3d 1710 (Cal. Ct. App.

1991), a case involving codefendants, the California Court of

Appeal expanded the holding in North to conclude that "one [may]

. . . reasonably expect privacy in a police station [even]

absent a privileged relationship" when that "expectation of

privacy [is] based upon express representations by police

officers." Id. at 1716-17. Under the facts of that case,

defendant Darby invoked his right to remain silent, but

codefendant Hammons asked to speak to Darby before talking to

police. Id. at 1714. Officer Bourke put the codefendants in an

interview room together and left them alone. Id. Although

Bourke could not precisely recall everything he said to the

5
Since the decision in North, California's legislature has
expanded the list of rights retained by prisoners and
specifically "guarantees that prisoners shall retain all rights
except to the extent that restrictions are necessary for public
safety or institutional security." DeLancie v. Sup. Ct., 647
P.2d 142, 147 n.8 (Cal. 1982).

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codefendants, he said, "[W]e're leaving," and admitted that he

"led [the codefendants] to believe that this was in fact a

private conversation between just the [two codefendants]." Id.

The officers then "surreptitiously monitored and tape recorded"

the conversation, in which the codefendants incriminated

themselves. Id.

The Court of Appeal held that Bourke's statement, although

its precise content was uncertain, constituted "an express

representation that [the] conversation [would] be private" and

that it "create[d] a legitimate and reasonable expectation of

privacy" which rendered "the surreptitious monitoring and

recording of that conversation . . . violative of the Fourth

Amendment." Id. at 1717. Compare Kirkpatrick v. Joseph A. (In

re Joseph A.), 30 Cal. App. 3d 880, 885-86 (Cal. Ct. App. 1973)

(holding that North did not apply because no privileged

relationship existed between juvenile and his uncle but that

even if lack of privilege did not defeat claim, officer's

actions in granting uncle's request to see juvenile "by himself"

in an interrogation room did not amount to implied

representation of privacy because request was subject to

multiple meanings and trial court construed it to mean "away

from other persons in custody" rather than "in private").

Although the issue has not previously been addressed by an

appellate court in this state, I would hold that Virginia's

statutory scheme compels the protection of a child's

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confidential communications with his parent, guardian, legal

custodian or other person standing in loco parentis. The

statutes governing juvenile and domestic relations district

courts require that any proceedings against a juvenile originate

in juvenile court, Code § 16.1-241, and that any petition filed

in such a court must be served on "at least one parent,

guardian, legal custodian or other person standing in loco

parentis," Code § 16.1-263(A); see Code § 16.1-269.1 (requiring

notice of transfer hearing to member of this group or to

juvenile's attorney). Similarly, the United States Supreme

Court recognizes that "[d]ue process . . . does not allow a

hearing to be held in which a youth's freedom and his parents'

right to his custody are at stake without giving them timely

notice, in advance of the hearing, of the specific issues that

they must meet." In re Gault, 387 U.S. 1, 33-34 (1967).

Numerous other legal principles acknowledge the importance of

the role of a parent as a confidante and counselor to his minor

child. See, e.g., Grogg v. Commonwealth, 6 Va. App. 598, 613,

371 S.E.2d 549, 557 (1988) ("[I]t is desirable to have a parent

. . . or some other interested adult or guardian present when

the police interrogate a juvenile, and it is even more desirable

to have an interested adult present when a juvenile waives

fundamental constitutional rights and confesses to a serious

crime."); Williams v. Williams, 24 Va. App. 778, 783, 485 S.E.2d

651, 653 (1997), aff'd as modified, 256 Va. 19, 501 S.E.2d 417

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(1998) (recognizing right of parents to raise their children as

both a fundamental liberty interest and a component of privacy

rights); cf. Code § 16.1-283 (permitting termination of parental

rights only under extreme circumstances and after efforts by the

Commonwealth to provide services necessary to permit continued

custody).

A New York court has concluded that protection for certain

communications between parents and children, although not

technically a statutory or common-law privilege like the

generally accepted privileges for attorney-client and

interspousal communications, arises from a constitutional "right

of family privacy" established by "a host of [United States

Supreme Court] cases." People v. Doe (In re A and M), 403

N.Y.S.2d 375, 378 (N.Y. App. Div. 1978), quoted with approval in

People v. Harrell, 450 N.Y.S.2d 501, 504 (N.Y. App. Div. 1982),

aff'd on other grounds, 449 N.E.2d 1263 (N.Y. 1983).

It would be difficult to think of a
situation which more strikingly embodies the
intimate and confidential relationship which
exists among family members than that in
which a troubled young person, perhaps beset
with remorse and guilt, turns for counsel
and guidance to his mother and father.
There is nothing more natural, more
consistent with our concept of the parental
role, than that a child may rely on his
parents for help and advice. Shall it be
said to those parents, "Listen to your son
at the risk of being compelled to testify
about his confidences?" 6

6
As another commentator has questioned, "[W]hen a child
comes to Mom or Dad for advice, do parents need to issue the

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 * * * * * *

[T]here can be no doubt what the effect on
that relationship would be if the state
could compel parents to disclose information
given to them in the context of that
confidential setting. Surely the thought of
the State forcing a mother and father to
reveal their child's alleged misdeeds, as
confessed to them in private, to provide the
basis for criminal charges is shocking to
our sense of decency, fairness and
propriety. It is inconsistent with the way
of life we cherish and guard so carefully
and raises the specter of a regime which
encourages betrayal of one's offspring. And
if, as seems likely, the parents refuse to
divulge the child's confidences, the
alternatives faced by the parents, i.e.,
risk of prosecution for contempt or
commission of perjury, could seriously
undermine public trust in our system of
justice.
The course of constitutional law is
filled with instances wherein the interests
of the State in achieving a legitimate goal
have been balanced against the rights of
individual privacy guaranteed by the
Constitution. . . . [Thus], if it is
determined that the information sought here
was divulged by the boy in the context of
the familial setting for the purpose of
obtaining support, advice or guidance, we
believe that the interest of society in
protecting and nurturing the parent-child
relationship is of such overwhelming
significance that the State's interest in
fact-finding must give way.

A and M, 403 N.Y.S.2d at 378-80 (footnote added).

classic warning, 'Anything you say may be used against you in a
court of law'? Such an intrusion seems contrary to the
political focus on family values." Margaret Graham Tebo, Parent
Privilege: Lawmakers Seek to Protect Parent-Child Conversation,
86 A.B.A. J. 18 (2000).

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 In light of the approach of Virginia law to the

relationship between juveniles and their parents and the

constitutional principles outlined so cogently in A and M, I

would hold that the right of family privacy protected

appellant's communications with his mother and her partner in

much the same way a formal privilege would have. 7 Under the

reasoning of the California Supreme Court in North, Detective

Gandy's conduct in "surrendering" the interview room to

appellant, his mother and her partner, Carl Gray, after Gray's

indication that appellant would make no statement without a

lawyer, "so that they might converse and then by exiting and

shutting the door, leaving them entirely alone," "spoke as

7
Formal privileges may be "waived" or "broken" if the
communication occurs in the presence of a third party to whom
the privilege does not apply. See, e.g., Harris v.
Commonwealth, 19 Va. App. 518, 521-22, 453 S.E.2d 292, 294-95
(1995). As such, if a formal privilege existed here, it could
be argued that the presence of Gray, who was merely appellant's
mother's partner rather than appellant's father or stepfather,
would defeat any assertion of a privilege. However, in the
context of the right to privacy and the principles which support
that right, I would conclude that Gray was present as a de facto
parent in whom appellant confided just as he likely would have
if Gray had been his biological father or stepfather. Gray
described himself to Detective Gandy as appellant's stepfather,
and Gandy's testimony about appellant's statements indicated
that appellant's mother and Gray treated both appellant and
Williams as "their . . . son[s]." Cf. Code § 16.1-241 (granting
juvenile and domestic relations district court jurisdiction over
"[a]ll offenses in which one family or household member is
charged with an offense in which another family or household
member is the victim"); Code § 16.1-228 (defining "[f]amily or
household member" to include, inter alia, "any individual who
cohabits . . . with the person, and any children of either of
them then residing in the same home with the person").

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clearly as words" and had the effect of "lull[ing]" appellant

"into believing that their conversation would be confidential."

North, 502 P.2d at 1311. Those circumstances, "coupled with

[the right of family privacy akin to] the statutory presumption

that a conversation between spouses is . . . made in confidence

constituted a sufficient showing by [appellant] to establish a

reasonable expectation of privacy." Id. (citation omitted).

Thus, admission of Detective Gandy's testimony regarding

appellant's whispered statements violated both the Fourth

Amendment and Code § 19.2-65.

Even if no right of family privacy existed under the facts

of this case to protect appellant's communications with his

mother and her partner, I would hold that Detective Gandy's

statements and actions, standing alone, constituted a

representation sufficient to afford appellant an objectively

reasonable expectation of privacy. See Hammons, 235

Cal. App. 3d at 1716-17; see also People v. A.W., 982 P.2d 842,

848-49 (Colo. 1999) (en banc) (holding officer's explicit

assurances that no one was behind the two-way mirror and that he

would not be listening in gave rise to objectively reasonable

expectation of privacy for juvenile in interview room

communications with his father). When Carl Gray told Detective

Gandy in appellant's presence that appellant would not make a

statement until after they consulted a lawyer, appellant did not

contradict Gray, and Gandy acquiesced to the request by leaving

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the room. Gandy testified that he thought "it would be best if

[appellant] consulted a lawyer before anything was said."

Nevertheless, Gandy "wanted to see if they said anything," so he

went to the monitoring room in an effort to overhear any

conversation appellant, appellant's mother and Gray might have.

Under these circumstances, I would hold that appellant's

subjective expectation of privacy in the interview room he

occupied with only his mother and her boyfriend was one society

was prepared to recognize as reasonable even if Detective Gandy

was not so prepared. Thus, under this approach, as well,

admission of Detective Gandy's testimony regarding appellant's

whispered statements violated both the Fourth Amendment and Code

§ 19.2-65. 8

For these reasons, I would hold that the trial court

erroneously denied the motion to suppress, and I would reverse

and remand for additional proceedings. Therefore, I

respectfully dissent.

8
In the absence of a family privilege, appellant's mother
and Gray could be called to testify and could be held in
contempt for refusing to appear. However, if both took the
stand and testified that appellant spoke to them about the
weather rather than the offense for which appellant had been
arrested, the Fourth Amendment and Code § 19.2-65 would bar
admission of the exchange recorded and overheard by Detective
Gandy.

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