IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2014 Term
_______________ FILED
April 17, 2014
No. 13-0733 released at 3:00 p.m.
RORY L. PERRY II, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA ex rel.
STATE OF WEST VIRGINIA,
Petitioner
v.
THE HONORABLE ROBERT A. BURNSIDE, JR.,
Judge of the Circuit Court of Raleigh County; and
RICHARD E. HARDISON, JR.,
Respondents
____________________________________________________________
Appeal from the Circuit Court of Raleigh County
The Honorable Robert A. Burnside, Jr., Judge
Criminal Case No. 12-F-293-B
WRIT GRANTED
____________________________________________________________
Submitted: March 26, 2014
Filed: April 17, 2014
Patrick Morrisey Timothy J. LaFon, Esq.
Attorney General Ciccarello, DelGuidice & LaFon, PLLC
Scott E. Johnson, Esq. Charleston, West Virginia
Senior Assistant Attorney General Counsel for the Respondent
Charleston, West Virginia Richard E. Hardison, Jr.
Counsel for the Petitioner
JUSTICE KETCHUM delivered the Opinion of the Court.
JUSTICE BENJAMIN concurs and reserves the right to file a concurring Opinion.
JUSTICE LOUGHRY concurs and reserves the right to file a concurring Opinion.
JUDGE SIMS dissents and reserves the right to file a dissenting Opinion.
CHIEF JUSTICE DAVIS, deeming herself disqualified, did not participate.
JUSTICE WORKMAN, deeming herself disqualified, did not participate.
JUDGE HATCHER, sitting by temporary assignment.
JUDGE SIMS, sitting by temporary assignment.
SYLLABUS BY THE COURT
W.Va. Code § 62-1D-9(d) of the West Virginia Wiretapping and Electronic
Surveillance Act, W.Va. Code § 62-1D-1, et. seq. [1987], is intended to prevent attorney-
client privileged communications from being monitored by wiretapping or through
electronic surveillance. The third clause of W.Va. Code § 62-1D-9(d), considered in
conjunction with the first two clauses of the statute, and within the West Virginia
Wiretapping and Electronic Surveillance Act and Title III of the Omnibus Crime Control
and Safe Streets Act, 18 U.S.C. § 2510, et. seq., was intended to prohibit the interception
of all attorney-client privileged communications “emanating from the place of
employment of any attorney at law licensed to practice law in this state.” The third
clause of W.Va. Code § 62-1D-9(d) was not intended to prevent law-enforcement officers
from intercepting wire, oral or electronic communications occurring within or emanating
from a law office that involve criminal conduct.
Justice Ketchum:
The Petitioner, the State of West Virginia, invokes this Court’s original
jurisdiction in prohibition to challenge the June 26, 2013, order of the Circuit Court of
Raleigh County suppressing an audio recording which the State sought to introduce in its
criminal prosecution of Respondent Richard E. Hardison, Jr., a licensed lawyer in West
Virginia (“Lawyer Hardison”). The Raleigh County Sheriff’s Department sent a
confidential informant, equipped with a body wire, to meet with and attempt to purchase
cocaine from Lawyer Hardison. The confidential informant allegedly discussed and
purchased cocaine from Lawyer Hardison in his Beckley, West Virginia law office.
After being indicted on two criminal counts related to this alleged drug
transaction, Lawyer Hardison moved to suppress the audio recording of his conversation
with the confidential informant arguing that the recording violated the West Virginia
Wiretapping and Electronic Surveillance Act, W.Va. Code § 62-1D-9(d) [1987]. The
circuit court agreed and granted Lawyer Hardison’s motion to suppress the audio
recording.
The State subsequently filed the present writ arguing that the circuit court’s
interpretation of W.Va. Code § 62-1D-9(d) was erroneous. The State argues that the
purpose of W.Va. Code § 62-1D-9(d) is to prevent attorney-client privileged
communications from being intercepted by wiretapping or through electronic
surveillance. Because there is no claim that the conversation between Lawyer Hardison
1
and the confidential informant was protected under the attorney-client privilege, the State
argues that the circuit court’s order suppressing the audio recording was in error.
After review, we agree with the State and conclude that W.Va. Code § 62
1D-9(d) is intended to prevent attorney-client privileged communications from being
intercepted by wiretapping or through electronic surveillance. There is no claim that the
recorded conversation between Lawyer Hardison and the confidential informant was
attorney-client in nature. Because Lawyer Hardison was not acting as an attorney during
his conversation with the confidential informant, we grant the requested writ of
prohibition.
I. Factual & Procedural Background
On April 6, 2012, the Raleigh County Sheriff’s Department sent a
confidential informant, equipped with a body wire, to meet with and attempt to obtain
cocaine from Lawyer Hardison. The confidential informant was an acquaintance and
client of Lawyer Hardison.1 The State alleges that the confidential informant picked
Lawyer Hardison up at his residence and drove to Lawyer Hardison’s law office. The
1
According to the appendix-record, Lawyer Hardison represented the confidential
informant on two matters, one criminal and one civil. The criminal matter was dismissed
on March 13, 2012, prior to the April meeting in which the audio recording was made.
The civil matter was pending when the April meeting occurred. It was dismissed on May
15, 2012.
2
audio recording allegedly includes conversations between the confidential informant and
Lawyer Hardison that occurred in the confidential informant’s automobile and continued
as the two men entered Lawyer Hardison’s law office. The State alleges that the
confidential informant purchased cocaine from Lawyer Hardison and that the sale
occurred in Lawyer Hardison’s law office.2 They did not discuss legal matters or matters
that were attorney-client in nature.
The confidential informant agreed to wear the body wire that recorded his
conversation with Lawyer Hardison. The West Virginia Wiretapping and Electronic
Surveillance Act (“West Virginia Wiretapping Act” or “the Act”), W.Va. Code § 62-1D-1
[1987], et. seq., permits the use of an electronic surveillance device when one party to the
communication consents to the use of a recording device. W.Va. Code § 62-1D-3(e) of
the West Virginia Wiretapping Act states:
(e) It is lawful under this article for a person to intercept a
wire, oral or electronic communication where the person is a
party to the communication or where one of the parties to the
communication has given prior consent to the interception
unless the communication is intercepted for the purpose of
committing any criminal or tortious act in violation of the
constitution or laws of the United States or the constitution or
laws of this state[.]
2
The parties disagree on the quantity of cocaine that was allegedly purchased. The
State’s brief asserts that the transaction was an attempt to obtain “two 8-balls [of cocaine
worth] approximately five hundred dollars[.]” Lawyer Hardison’s brief states “the alleged
drug transaction was for approximately .93 of a gram of cocaine and not two 8-balls.”
3
This one-party consent rule is an exception to the Act’s general requirement that the
interception of wire, oral or electronic communications is only permissible when
authorized by a designated circuit court judge. The procedure for designating specific
circuit court judges to authorize electronic surveillance is set forth in W.Va. § 62-1D-7
[1987] of the Act. It states:
The chief justice of the supreme court of appeals shall,
on an annual basis, designate five active circuit court judges
to individually hear and rule upon applications for orders
authorizing the interception of wire, oral or electronic
communications: Provided, That no designated circuit judge
may consider any application for such an order if he or she
presides as judge of the circuit court of the county wherein
the applied for installation would occur or of the county
wherein the communications facility, line or device to be
monitored is located.
Pursuant to the West Virginia Wiretapping Act, a prosecutor (W.Va. Code § 62-1D-8) or
an authorized member of the state police (W.Va. Code §§ 62-1D-11(a)(1)) may make an
application to a designated circuit court judge for a warrant to intercept a communication
with an electronic surveillance device. The Act permits a designated circuit court judge
to issue a warrant ONLY IF the evidence and argument presented by the applicant
establishes that:
(1) There is probable cause to believe that one or more
individuals are committing, have committed, or are about to
commit one or more of the particular offenses enumerated in
section eight of this article;
(2) There is probable cause for belief that particular
communications concerning such offense or offenses will be
obtained through the interception;
4
(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.
W.Va. Code § 62-1D-11(c).
Lawyer Hardison was indicted on two felony counts related to the alleged
cocaine transaction with the confidential informant: (1) delivery of a controlled substance
(cocaine) in violation of W.Va. Code § 60A-4-401 [1983]; and (2) conspiracy to commit
the felony offense of delivering a controlled substance (cocaine) in violation of W.Va.
Code § 61-10-31 [1971].
Lawyer Hardison filed a motion to suppress the audio recording of the
conversation between himself and the confidential informant, asserting that the recording
was made in violation of W.Va. Code § 62-1D-9(d) of the West Virginia Wiretapping Act.
W.Va. Code § 62-1D-9(d) states:
An otherwise privileged wire, oral or electronic
communication intercepted in accordance with, or in violation
of, the provisions of this article does not lose its privileged
character: Provided, That when an investigative or law-
enforcement officer, while engaged in intercepting wire, oral
or electronic communications in the manner authorized by
this article, intercepts a wire, oral or electronic
communication and it becomes apparent that the conversation
is attorney-client in nature, the investigative or law
5
enforcement officer shall immediately terminate the
monitoring of that conversation: Provided, however, That
notwithstanding any provision of this article to the contrary,
no device designed to intercept wire, oral or electronic
communications shall be placed or installed in such a manner
as to intercept wire, oral or electronic communications
emanating from the place of employment of any attorney at
law licensed to practice law in this state.
The circuit court held a suppression hearing on Lawyer Hardison’s motion.
The State argued that W.Va. Code § 62-1D-9(d) was intended to protect attorney-client
privileged communications and “not [the] misconduct of lawyers[.]” Further, the State
contended that Lawyer Hardison’s reading of the statute would lead to an absurd result: it
would prevent the use of audio and video recordings of individuals engaging in criminal
conduct from being admitted into evidence merely because the criminal conduct occurred
in a law office. Conversely, counsel for Lawyer Hardison argued that the plain language
of the statute barred the audio recording because the conversation occurred in Lawyer
Hardison’s law office.
The circuit court agreed with Lawyer Hardison and ruled that “[t]he
statute’s proviso prohibits the type of recordings that occurred in this case. . . . It is
ORDERED that audio, video3 or both recordings made in defendant’s law office are
3
There is no video recording of the meeting between the confidential informant and
Lawyer Hardison. According to Lawyer Hardison’s brief, the confidential informant was
equipped with an audio and video recording device, but the video recording device
malfunctioned.
6
SUPPRESSED and the state may not use them at trial.” While the circuit court’s order
suppressed the audio recording, it denied Lawyer Hardison’s request to suppress the
confidential informant’s testimony relating to the conversation at issue.
After entry of the circuit court’s June 26, 2013, order suppressing the audio
recording, the State filed the present writ.
II. Standard of Review
This Court addressed our standard of review for a writ of prohibition in a
criminal matter in Syllabus Point 5 of State v. Lewis, 188 W.Va. 85, 422 S.E.2d 807
(1992):
The State may seek a writ of prohibition in this Court
in a criminal case where the trial court has exceeded or acted
outside of its jurisdiction. Where the State claims that the
trial court abused its legitimate powers, the State must
demonstrate that the court’s action was so flagrant that it was
deprived of its right to prosecute the case or deprived of a
valid conviction. In any event, the prohibition proceeding
must offend neither the Double Jeopardy Clause nor the
defendant’s right to a speedy trial. Furthermore, the
application for a writ of prohibition must be promptly
presented.
“The writ of prohibition will issue only in clear cases, where the inferior
tribunal is proceeding without, or in excess of, jurisdiction.” Syllabus, State ex rel.
Vineyard v. O’Brien, 100 W.Va. 163, 130 S.E. 111 (1925). See also Syllabus Point 1,
Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953) (“Prohibition lies only to
restrain inferior courts from proceeding in causes over which they have no jurisdiction,
7
or, in which, having jurisdiction, they are exceeding their legitimate powers and may not
be used as a substitute for writ of error, appeal or certiorari.”); Syllabus Point 2, State ex
rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977) (“A writ of
prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will
only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its
legitimate powers. W.Va. Code 53-1-1.”).
Further, in Syllabus Point 4 of State ex rel. Hoover v. Berger, 199 W.Va.
12, 483 S.E.2d 12 (1996), we set forth the following standard for issuance of a writ of
prohibition when it is alleged a lower court is exceeding its authority:
In determining whether to entertain and issue the writ
of prohibition for cases not involving an absence of
jurisdiction but only where it is claimed that the lower
tribunal exceeded its legitimate powers, this Court will
examine five factors: (1) whether the party seeking the writ
has no other adequate means, such as direct appeal, to obtain
the desired relief; (2) whether the petitioner will be damaged
or prejudiced in a way that is not correctable on appeal; (3)
whether the lower tribunal’s order is clearly erroneous as a
matter of law; (4) whether the lower tribunal’s order is an oft
repeated error or manifests persistent disregard for either
procedural or substantive law; and (5) whether the lower
tribunal’s order raises new and important problems or issues
of law of first impression. These factors are general
guidelines that serve as a useful starting point for determining
whether a discretionary writ of prohibition should issue.
Although all five factors need not be satisfied, it is clear that
the third factor, the existence of clear error as a matter of law,
should be given substantial weight.
With the foregoing in mind, we turn to the parties’ arguments.
8
III. Analysis
In this writ, we are asked to examine W.Va. Code § 62-1D-9(d) which is
contained in the West Virginia Wiretapping Act, W.Va. Code § 62-1D-1, et. seq. By way
of background, the West Virginia Wiretapping Act was enacted by the West Virginia
Legislature in 1987. The Act was patterned after Title III of the Omnibus Crime Control
and Safe Streets Act, 18 U.S.C. § 2510, et. seq. (“Title III”). See State v. Mullens, 221
W.Va. 70, 86, n.34, 650 S.E.2d 169, 185, n.34 (2007). Title III was enacted by Congress
in 19684 and it “sets forth comprehensive standards governing the use of . . . electronic
surveillance by both governmental and private agents.” Mullens, 221 W.Va. at 74, 650
S.E.2d at 173. Pursuant to Title III, 18 U.S.C.A. § 2516(2), states are authorized to
“adopt coordinate statutes permitting the interception of wire, oral or electronic
communications, and to grant greater, but not lesser, protection than that available under
federal law.” Id. at 79, 650 S.E.2d at 178. As one legal scholar observed, “Congress did
not intend to preempt the field of wiretap legislation [through Title III], but rather, it
4
In 1986, Congress amended Title III through the enactment of the Electronic
Communications Privacy Act, 18 U.S.C.A. § 3121, et. seq., in an effort to reflect
technological advancements in the area of electronic surveillance. See Snow v. DirecTv,
Inc., 450 F.3d 1314, 1320 (11th Cir. 2006). Congress amended Title III again with the
enactment of the Communications Assistance for Law Enforcement Act of 1994, 47
U.S.C.A. § 1001, et. seq. This Act “requires telecommunications carriers to ensure that
their systems are technically capable of enabling law enforcement agencies operating
with proper legal authority to intercept individual telephone calls and to obtain certain
call-identifying information.” Mullens, 221 W.Va. at 74, n. 12, 650 S.E.2d at 173, n.12
(internal citation omitted).
9
intended to allow states to enact legislation in this area as long as state laws are not more
permissive than the federal scheme.” Angela M. Burdine, Criminal Procedure;
Electronic Surveillance, 27 Pac. L.J. 614, 620-21 (1996).
Turning to the West Virginia Wiretapping Act, W.Va. Code § 62-1D-6
provides that “evidence obtained in violation of the provisions of this article shall not be
admissible in any proceeding.”5 The issue we must resolve is whether the audio
recording of the conversation between the confidential informant and Lawyer Hardison
was made in violation of W.Va. Code § 62-1D-9(d) of the West Virginia Wiretapping Act.
Lawyer Hardison argues that this Court should apply the plain language of
the final clause of W.Va. Code § 62-1D-9(d) and find that the circuit court correctly
suppressed the audio recording at issue. By contrast, the State argues that the final clause
of W.Va. Code § 62-1D-9(d) cannot be construed in a vacuum and must be considered
within the context and purpose of the entire statute. The purpose of W.Va. Code § 62
5
Title III contains a similar provision to W.Va. Code § 62-1D-6. This provision is
set forth at 18 U.S.C. § 2515, which states:
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, agency, regulatory
body, legislative committee, or other authority of the United
States, a State, or a political subdivision thereof if the
disclosure of that information would be in violation of this
chapter.
10
1D-9(d), according to the State, is to protect attorney-client privileged communications.
The State contends that applying the plain language of the final clause of W.Va. Code §
62-1D-9(d) without considering the context of the entire statute would produce an absurd
result – it would transform a law office “into a sanctuary for criminal activity.”
This Court has held that in deciding the meaning of a statutory provision,
“[w]e look first to the statute’s language. If the text, given its plain meaning, answers the
interpretive question, the language must prevail and further inquiry is foreclosed.”
Appalachian Power Co. v. State Tax Dep’t, 195 W.Va. 573, 587, 466 S.E.2d 424, 438
(1995). See also Syllabus Point 2, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384
(1970) (“Where the language of a statute is free from ambiguity, its plain meaning is to
be accepted and applied without resort to interpretation.”); and Syllabus Point 2, State v.
Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951) (“A statutory provision which is clear and
unambiguous and plainly expresses the legislative intent will not be interpreted by the
courts but will be given full force and effect.”).
Additionally, this Court has held that “[a] statute is open to construction
only where the language used requires interpretation because of ambiguity which renders
it susceptible of two or more constructions or of such doubtful or obscure meaning that
reasonable minds might be uncertain or disagree as to its meaning.” Sizemore v. State
Farm Gen. Ins. Co., 202 W.Va. 591, 596, 505 S.E.2d 654, 659 (1998) (internal
quotations and citation omitted). With these rules of statutory construction in mind, we
turn to W.Va. Code § 62-1D-9(d).
11
The first clause of W.Va. Code § 62-1D-9(d) – “[a]n otherwise privileged
wire, oral or electronic communication intercepted in accordance with, or in violation of,
the provisions of this article does not lose its privileged character”– is straightforward
and states that a privileged communication does not lose its privileged status simply
because it is intercepted pursuant to the West Virginia Wiretapping Act.
The second clause of W.Va. Code § 62-1D-9(d) states:
That when an investigative or law-enforcement officer, while
engaged in intercepting wire, oral or electronic
communications in the manner authorized by this article,
intercepts a wire, oral or electronic communication and it
becomes apparent that the conversation is attorney-client in
nature, the investigative or law-enforcement officer shall
immediately terminate the monitoring of that conversation[.]
The second clause contemplates a scenario in which a law-enforcement officer is engaged
in intercepting wire, oral or electronic communications between a lawyer and his/her
client. The second clause does not place an absolute bar on a law-enforcement officer
intercepting a communication between a lawyer and his/her client, rather, it only bars
intercepting such a conversation when it “becomes apparent that the conversation is
attorney-client in nature.”
While the first and second clauses of W.Va. Code § 62-1D-9(d) are
straightforward, we find that an ambiguity arises in the third clause of the statute. The
third clause of W.Va. Code § 62-1D-9(d) states:
Provided, however, That notwithstanding any provision of
this article to the contrary, no device designed to intercept
wire, oral or electronic communications shall be placed or
installed in such a manner as to intercept wire, oral or
12
electronic communications emanating from the place of
employment of any attorney at law licensed to practice law in
this state.
The first clause of W.Va. Code § 62-1D-9(d) addresses privileged
communications generally. The second clause addresses attorney-client privileged
communications. The final clause appears to place a prohibition on any communication,
privileged or otherwise, occurring between any persons located in a law office. As
demonstrated by the differing interpretations given the final clause by the parties to this
appeal, the final clause’s intended meaning is not abundantly clear when considered
within the context of the first two clauses of the statute.6 Because the final clause of this
statute is preceded by two clauses addressing privileged communications, we find that the
final clause is susceptible to differing constructions, and that “reasonable minds might be
uncertain or disagree as to its intended meaning.” Sizemore, 202 W.Va. at 596, 505
S.E.2d at 659. Accordingly, we find that W.Va. Code § 62-1D-9(d) is ambiguous.
“A statute that is ambiguous must be construed before it can be applied.”
Syllabus Point 1, Farley v. Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992). “The
primary object in construing a statute is to ascertain and give effect to the intent of the
Legislature.” Syllabus Point 1, Smith v. State Workmen’s Comp. Comm’r, 159 W.Va.
6
We note, however, that “the fact that parties disagree about the meaning of a
statute does not itself create ambiguity or obscure meaning.” State v. Gibson, 226 W.Va.
568, 571, 703 S.E.2d. 539, 542 (2010) (internal citation omitted).
13
108, 219 S.E.2d 361 (1975). Similarly, this Court has held that “the initial step in such
interpretative inquiry [of a statute] is to ascertain legislative intent.” Syllabus Point 1, in
part, Ohio County Comm’n v. Manchin, 171 W.Va. 552, 301 S.E.2d 183 (1983). Further,
“[w]hen a statute’s language is ambiguous, a court often must venture into extratextual
territory in order to distill an appropriate construction. Absent explicatory legislative
history for an ambiguous statute . . . this Court is obligated to consider the . . .
overarching design of the statute.” State ex rel. McGraw v. Scott Runyon Pontiac-Buick,
Inc., 194 W.Va. 770, 777, 461 S.E.2d 516, 523 (1995).
In ascertaining the legislative intent behind W.Va. Code § 62-1D-9(d), we
find that the legislative history7 of the West Virginia Wiretapping Act provides a general
7
The Acts of the Legislature of West Virginia states that W.Va. Code § 62-1D-1, et.
seq., is
AN ACT to amend chapter sixty-two of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
by adding thereto a new article, designated article one-d,
relating to wiretapping and certain electronic surveillance;
authorizing the interception of certain oral, electronic and
wire communications under specified controlled
circumstances; providing certain definitions of terms with
respect thereto; establishing certain limits and procedures
relating thereto; requiring court orders as a condition
precedent to any such interception or installation of any
wiretap, pen register, trap and trace device or similar device;
designated judges; providing for civil immunities with respect
thereto; providing exceptions; and providing criminal and
civil penalties for violation of certain sections.
1987 W.Va. Acts 1000-1001.
14
description of the statute, but it does not address the specific meaning or purpose of
W.Va. Code § 62-1D-9(d). Because the Act’s legislative history does not provide
guidance, we examine the law the West Virginia Wiretapping Act was patterned after,
Title III.
The first two clauses of W.Va. Code § 62-1D-9(d) have analogous
provisions in Title III. Like the first clause of W.Va. Code § 62-1D-9(d), Title III states
that a privileged communication does not lose its privileged status simply because it is
intercepted. See 18 U.S.C. § 2517(4) [1986] (“No otherwise privileged wire, oral or
electronic communication intercepted in accordance with, or in violation of, the
provisions of this chapter, shall lose its privileged character.”).
The second clause of W.Va. Code § 62-1D-9(d) and 18 U.S.C. § 2518(5) of
Title III recognize that some privileged communications may be overheard in the course
of wiretapping or electronic surveillance and both take steps to minimize this type of
interception. The second clause of W.Va. Code § 62-1D-9(d) directs such surveillance to
cease when it becomes apparent that a communication is attorney-client in nature.
Similarly, when electronic surveillance is authorized pursuant to Title III, 18 U.S.C. §
2518(5) requires that efforts be made to minimize the interception of communications
that are not intended to be intercepted. Further, Title III “requires the temporary
termination of surveillance when the intercepted communication is not relevant to the
investigation . . . this minimization provision . . . diminishes the interception of privileged
communications as much as possible.” Terrence Kossegi and Barbara Phair, The Clergy
15
Communication Privilege in the Age of Electronic Surveillance, 12 St. John’s J. Legal
Comment, 241, 253 (1996). See also Clifford S. Fishman and Anne T. McKenna,
Wiretapping and Eavesdropping, § 8:125 (2d ed. 1995) (stating that the effect of Title III
minimization language severely limits interception of privileged communications).
Unlike the first two clauses of W.Va. Code § 62-1D-9(d), Title III does not
contain an analogous provision to the third clause of the statute. Title III contains no
prohibition on the use of wiretapping or electronic surveillance of all communications
emanating from a law office. The absence of such a provision in Title III demonstrates
that Congress chose not to treat communications emanating from a law office differently
than communications emanating from other locations.
One rationale for this lack of a provision in Title III prohibiting wiretapping
or electronic surveillance of all communications emanating from a law office is the
recognition that lawyers engaging in alleged criminal activity should be investigated and
prosecuted to the same extent as non-lawyers:
A license to practice law is not a license to commit
crime. When an attorney uses his position to aid an organized
crime client in ongoing criminal activity or in running a
criminal enterprise, few would disagree that the government
has the right, indeed the duty, to investigate and prosecute
that person to at least the same extent they would his
principal.
Steven Chananie and Ronald Goldstock, ‘Criminal’ Lawyers: The Use of Electronic
Surveillance and Search Warrants in the Investigation and Prosecution of Criminal
Wrongdoing, 136 U. Pa. L. Rev. 1855 (1988).
16
Based on the foregoing, we find that Title III contains no provision barring
the use of wiretapping or electronic surveillance of all communications emanating from a
law office. This lack of a corresponding provision in Title III weighs in favor of the
State’s argument that the third clause of W.Va. Code § 62-1D-9(d) must be read and
interpreted within the context of the other two clauses of the statute, i.e., the third clause
is meant to protect communications emanating from a law office that are attorney-client
privileged in nature; the final clause is not meant to protect communications emanating
from a law office that involve a lawyer engaging in criminal conduct.
Having determined that Title III does not contain an analogous provision to
the third clause of W.Va. Code § 62-1D-9(d), we next examine the statute in light of the
purpose and context of the other statutory provisions contained within the West Virginia
Wiretapping Act. The purpose of Title III, which the West Virginia Wiretapping Act was
patterned after, is to achieve the dual goals of “protecting individual privacy, while
permitting limited government surveillance in accordance with uniform standards.”
Mullens, 221 W.Va. at 75, 650 S.E.2d at 174. These dual goals of Title III are applicable
to the West Virginia Wiretapping Act. We find that these goals are not furthered by
affording the third clause of W.Va. Code § 62-1D-9(d) the broad reading urged by
Lawyer Hardison. Under Lawyer Hardison’s suggested construction of the statute, the
West Virginia Wiretapping Act would prevent law-enforcement surveillance of all
communications emanating from a law office, including the alleged criminal
communications that occurred in the present case – a lawyer selling cocaine. Further, if
17
this Court adopted Lawyer Hardison’s suggested construction of W.Va. Code § 62-1D
9(d), law offices in West Virginia could become staging areas for criminal conduct. We
find no support for this construction of W.Va. Code § 62-1D-9(d) in any corresponding
provision of the Act or in any provision of Title III.
Finally, we note that when construing an ambiguous statute, “[w]e need not
leave our common sense at the doorstep[.]” Price Waterhouse v. Hopkins, 490 U.S. 228,
241 (1989). This Court has long recognized that
[i]t is the duty of a court to construe a statute according to its
true intent, and give it such construction as will uphold the
law and further justice. It is as well the duty of a court to
disregard a construction, though apparently warranted by the
literal sense of the words in a statue, when such construction
would lead to injustice and absurdity.
Syllabus Point 2, Click v. Click, 98 W.Va. 419, 127 S.E. 194 (1925). Lawyer Hardison’s
suggested construction of W.Va. Code § 62-1D-9(d) would lead to such an absurdity – it
would shield a lawyer, and any other person involved in criminal activity in a law office,
from being subject to wiretapping or electronic surveillance simply because the criminal
activity was occurring in a law office. We do not believe the Legislature intended such
an absurd result. Rather, we find that the State’s suggested interpretation of the third
clause of W.Va. Code § 62-1D-9(d) – that it is meant to protect attorney-client privileged
communications occurring within or emanating from a law office – is a sound and
reasonable construction of the statute that is in accordance with the goals of the West
Virginia Wiretapping Act and of Title III.
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Based on all of the above, we hold that W.Va. Code § 62-1D-9(d) of the
West Virginia Wiretapping and Electronic Surveillance Act, W.Va. Code § 62-1D-1, et.
seq. [1987], is intended to prevent attorney-client privileged communications from being
monitored by wiretapping or through electronic surveillance. The third clause of W.Va.
Code § 62-1D-9(d), considered in conjunction with the first two clauses of the statute,
and within the West Virginia Wiretapping and Electronic Surveillance Act and Title III of
the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510, et. seq., was intended
to prohibit the interception of all attorney-client privileged communications “emanating
from the place of employment of any attorney at law licensed to practice law in this
state.” The third clause of W.Va. Code § 62-1D-9(d) was not intended to prevent law-
enforcement officers from intercepting wire, oral or electronic communications occurring
within or emanating from a law office that involve criminal conduct.
Applying this holding to the present case, we find that the circuit court
erred when it suppressed the audio recording made by the confidential informant. The
conversation between the confidential informant and Lawyer Hardison should only have
been suppressed pursuant to W.Va. Code § 62-1D-9(d) if it was attorney-client in nature.
In Syllabus Point 2 of State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979), this Court
set forth a three-factor test to determine whether the attorney-client privilege may be
asserted:
In order to assert an attorney-client privilege, three
main elements must be present: (1) both parties must
contemplate that the attorney-client relationship does or will
exist; (2) the advice must be sought by the client from the
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attorney in his capacity as a legal advisor; (3) the
communication between the attorney and client must be
intended to be confidential.
The second and third factors cannot be satisfied. Lawyer Hardison was not acting in his
capacity as a lawyer during his April 6, 2012, conversation with the confidential
informant. The confidential informant was not seeking legal advice from Lawyer
Hardison; he was allegedly only seeking to purchase cocaine from him. Further, the
confidential informant, having agreed to wear a recording device, did not intend that this
conversation be kept confidential. Finally, the attorney-client privilege “belongs to the
client.” State ex rel. Allstate Ins. Co. v. Gaughan, 203 W.Va. 358, 372, n.21, 508 S.E.2d
75, 89, n. 21 (1998). The confidential informant, as the putative client in this case, has
not asserted the privilege. Because the conversation was not attorney-client in nature, the
circuit court erred by suppressing the audio recording under W.Va. Code § 62-1D-9(d).
We therefore grant the State’s requested writ.
IV. Conclusion
For the foregoing reasons, we find that the State is entitled to the requested
writ of prohibition to prohibit the circuit court from suppressing the audio recording
made by the confidential informant. We therefore vacate the June 26, 2013, order of the
Circuit Court of Raleigh County.
Writ Granted.
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