13-0733 — State of West Virginia ex rel. State of West Virginia v. The Honorable Robert
A. Burnside, Jr., Judge of the Circuit Court of Raleigh County, and Richard E. Hardison,
Jr.
FILED
April 17, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
Benjamin, Justice, concurring:
I agree with the majority opinion in this case. I write separately to
emphasize that today’s holding fully protects legitimate claims of attorney-client
privilege. Indeed, when viewed within the constitutional, statutory and common law
framework in which electronic surveillance by the state must operate in West Virginia, I
believe this decision not only ensures the preservation of important personal and
professional privileges, but also recognizes the importance of the state’s duty to properly
investigate and prosecute serious criminal misconduct, thereby protecting our families
and communities.
I cannot fault my dissenting colleague for raising concerns about the
importance and preservation of the attorney-client privilege. Indeed, it is, I suggest, a
good thing in today’s environment for judges to closely scrutinize any state action which
may impair the legitimate expectation of privacy citizens may have in the day-to-day
performance of their lives. Here, however, I simply disagree with the dissenting opinion
about the extent to which today’s holding will impair the legitimate exercise of the
attorney-client privilege, particularly when viewed within the framework of West
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Virginia’s electronic surveillance jurisprudence and the many protections for individual
rights and privileges found within this jurisprudence.
The dissenting opinion suggests a series of horribles which may emerge as
a result of the majority’s interpretation of W. Va. Code § 62-1D-9(d). The dissent posits
that the majority’s holding will “steadily and relentlessly erode” “the indispensable trust
that must exist between attorneys and clients.” I disagree. When read along with the other
protections provided by the entirety of the West Virginia Wiretapping and Electronic
Surveillance Act (“the Act”), W. Va. Code §§ 62-1D-1 to -16, I suggest that there is no
likelihood—absent felonious misconduct on the part of law enforcement—that harm will
befall the attorney-client privilege.
The dissenting opinion posits four scenarios, each having in common a
paralegal employed by a large West Virginia law firm who engages in illegal activity. In
all four scenarios, “law enforcement has probable cause and places a device to intercept
oral conversations/telephone calls/email (pick one or more) in paralegal’s office.”
I suggest that the dissenting opinion’s initial scenario is missing a crucial
element of judicial oversight in its fact pattern: Law enforcement could only have
lawfully placed an electronic surveillance device in the paralegal’s office if it had already
received a specific authorization to do so from one of five circuit judges appointed by the
West Virginia Supreme Court of Appeals. W. Va. Code § 62-1D-11; W. Va. Code § 62
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1D-7. Such judicial oversight is an important aspect to the protections contained with the
jurisprudence of electronic surveillance devices in West Virginia. Before one of the five
circuit court judges may issue an authorization order to law enforcement, the court must
find that
(1) There is probable cause to believe that one or more
individuals are committing, has committed, or are about to
commit one or more of the particular offenses enumerated in
section eight [§ 62-1D-8] of this article;
(2) There is probable cause for believe that particular
communications concerning such offense or offenses will be
obtained through the interception;
(3) Normal investigative procedures have been tried
and have failed and reasonably appear to be unlikely to
succeed if attempted again, or that to do so would be
unreasonably dangerous and likely to result in death or injury
or the destruction of property; and
(4) There is probable cause to believe that the facilities
from which, or the place where, the wire, oral or electronic
communications are to be intercepted are being used, or are
about to be used, in connection with the commission of the
offense or offenses are leased to, listed in the name of, or
commonly used by this person.
Id. § 62-1D-11(c). If an authorization order does issue, the circuit court judge must then
narrowly tailor that order, specifying
(i) the identity of the person, if known, whose
communications are to be intercepted; (ii) the nature and
location of the communications facilities as to which, or the
place where, authority to intercept is granted, (iii) a particular
description of the type of communication sought to be
intercepted and a statement of the particular offense to which
it relates, (iv) the identity of members of the Department of
Public Safety [West Virginia State Police] authorized to
intercept the communications and of the person authorizing
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the applications and (v) the period of time during which the
interception is authorized, including a statement as to whether
or not the interception automatically terminates when the
described communication is first obtained.
Id. § 62-1D-11(d)(1). “Every order and extension thereof shall contain a provision that
the authorization to intercept . . . be conducted in such a way as to minimize the
interception of communications not otherwise subject to interception under this article
and terminate upon attainment of the authorized objective.” Id. § 62-1D-11(e).
Furthermore, after the order is issued, reports must “be made to the judge who issued the
order showing what progress has been made toward achievement of the authorized
objective and the need for continued interception.” Id. § 62-1D-11(f).
As the above sampling of the Act makes clear, the courts of our State play a
significant and continuing role in the ordering of and supervising of surveillance obtained
by the use of electronic devices under the Act. Our decision today does not empower law
enforcement to place surveillance devices in law offices on a whim; law enforcement
must make a strong case for the need of that surveillance, and the circuit court must then
grant permission for that surveillance, subject to specific limitations and supervision,
before surveillance may take place.
Looking more specifically at the four scenarios presented in the dissenting
opinion, a common thread is apparent as to each: the investigating law enforcement
officer reveals non-criminal information gathered from the surveillance that is not the
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subject of the surveillance. Under the Act, such misbehavior would be a felony. The
disclosure of information obtained through surveillance is only permitted “to the extent
that the disclosure is required for proper performance of the official duties of the officer
making or receiving the disclosure.” Id. § 62-1D-9(a) (emphasis added). When a law
enforcement officer shares information gathered from surveillance and it is not in
furtherance of the proper performance of that officer’s official duties, the officer “is
guilty of a felony.” Id. § 62-1D-3(b). The officer would also be subject to civil liability.
Id. § 62-1D-12.
In my view, the weighty disincentives and protections which are part of the
framework of electronic surveillance jurisprudence in this state, as well as the on-going
judicial oversight present in such cases, are more than adequate measures to safeguard
individual privileges and rights while ensuring that the State may properly do its duty to
investigate and prosecute serious criminal misconduct, thereby protecting our families
and communities. I therefore concur.
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