concurring in part and dissenting in part.
I concur with the court's opinion in all respects except one: its conclusion that AS 12.61.120(d)'s ban on surreptitious recording is unconstitutional. On this issue, I believe the court strikes the wrong balance between a defendant's due process right to prepare for trial and a witness's or victim's right to privacy.
The court considers the correct question: "whether the interests served by a statute are of sufficient weight to justify the limitations imposed on [the defendant's] fair trial rights."1 But the court proceeds to conclude that there are "no substantial countervailing interests ... advanced by the bar on undisclosed recording."2 I respectfully disagree. The Alaska Constitution 3 establishes a right to privacy that witnesses and victims-indeed, all citizens-enjoy. Surreptitious recording of interviews with witnesses and vie-tims violates that right. In fact, our holding in Glass expressed not only a strong policy in favor of privacy, but also one particularly skeptical of surreptitious recording absent a warrant: "We believe that one who engages in a private conversation is similarly entitled to assume that his words will not be broadcast or recorded absent his consent or a warrant." 4
Surreptitious recording without a warrant has nonetheless been permitted in limited circumstances, namely in the scenario outlined in Quinto and its progeny. The court's heavy reliance on these cases to justify a supposed inclination toward surreptitious recording 5 mistakes the exception for the rule. According to the Quinto line of cases, war-*625rantless surreptitious recording is allowed by (1) law enforcement officials; (2) conducting a lawful stop or arrest; (8) in their conversations with criminal suspects; (4) when the suspect knows or reasonably should know he is talking to a police officer.6 Our holding in Stephan requiring police officers to record their custodial interrogations of defendants does not depart from these confines.7
The logic behind the Quinto exception is that criminal suspects lack a reasonable expectation of privacy when they know-or should know-that they are being stopped by a police officer in an official capacity. In a society widely cognizant of Miranda rights, people are quite aware that what they say to a police officer after a lawful stop or arrest can be held against them later. Because of this wide awareness, a post-stop or arrest expectation of privacy is unreasonable, and surreptitious recording is therefore permitted. As we noted in Quinto,
such case, one's candor and willingness to share personal confidences are unlikely to be any more effectively chilled than they already are by the added possibility that what is being said may be electronically recorded.8
But conversations with defense attorneys, investigators, or prosecutors do not fit this mold, and I disagree with the court that "the absence of a reasonable expectation of privacy of a person speaking with a known police officer investigating a crime applies equally to a person speaking to a known defense representative conducting an investigation."9
As the court's opinion recognizes, "Glass was designed to promote free discourse between citizens. ..."10 But the discourse described in Quinto was between a police officer and a citizen. Indeed, the Quinto court emphasized that the presence of the police was the crucial element that made surreptitious recording permissible: "The key element, in these cases, is the defendant's awareness that he is in the presence of the police."11 "The Public Defender Agency, appearing as amicus curiae, argues that it is the fact of recording, not police presence, which is critical to our decision. For the reasons stated in the text of this opinion, we disagree."12 And here, the interviewees are not suspects who have been stopped by the police-they are witnesses and victims. As Quinto recognized, suspects know or should know that what they say in the presence of police during a lawful stop or arrest can be held against them later. Because "the stop was lawful" and because "Quinto knew, or reasonably should have known, that he was speaking to a police officer," we concluded that it should have been clear to Quinto that the officer "was performing his official duties throughout the period covered by the recording." Thus, we held that "Quinto's expectation of privacy, ie. his assumed expectation that his conversation with [the police officer] would not be recorded, is not an expectation which society is willing to accept as reasonable."13
Such awareness cannot be attributed to witnesses and victims when they talk to defense investigators, and it is not safe to assume such a conversation will naturally be "guarded," as the court believes.14 A private conversation between a citizen and a defense attorney or defense investigator, whether private or public,15 does not fit within the Quinto exception. Nor, for that matter, do conversations between a citizen and a prosecutor or paralegal.
*626In summary, permitting surreptitious recording is the exeeption rather than the rule, and Quinto involved a limited cireumstance: a law enforcement official interrogating a suspect who knew or reasonably should have known that he was talking to a police officer in the course of a lawful stop. Although I agree with the court that the infringement on a defendant's right to prepare for trial must outweigh countervailing interests for the ban to be constitutional, in performing this balancing, the court has incorrectly dismissed the crucial privacy right advanced by the ban as "unsubstantial," characterizing it as nothing more than the protection from temporary feelings of affront that a witness or victim may experience.16 The protection of witnesses' and victims' privacy is not a trifling endeavor-the Alaska Constitution provides that "the right of the people to privacy is recognized and shall not be infringed.17 Because protection of privacy rights justifies and outweighs the statutory ban's limitation on the defendant's due process right, I believe that the bar on surreptitious recording is constitutional and should be upheld.
. Maj. at 609.
. Maj. at 619.
. Alaska Const. art. I, § 22. See also State v. Glass, 583 P.2d 872 (Alaska 1978); Anderson v. State, 555 P.2d 251 (Alaska 1976); Ravin v. State, 537 P.2d 494 (Alaska 1975).
. Glass, 583 P.2d at 875. See also Cowles v. State, 23 P.3d 1168, 1176 (Alaska 2001) (Fabe, J., dissenting) (noting that in Glass "we expressed grave concerns about electronic surveillance technologies and their effect on 'the right of persons to determine for themselves when, how, and to what extent information about them is communicated to others' " (citation omitted)).
. Maj. at 620-22.
. City & Borough of Juneau v. Quinto, 684 P.2d 127, 129 (Alaska 1984).
. Stephan v. State, 711 P.2d 1156, 1162 (Alaska 1985).
. Quinto, 684 P.2d at 129.
. Maj. at 622.
. Maj. at 622.
. Quinto, 684 P.2d at 129 n. 7.
. Id. at 129 n. 8.
. Id. at 129.
. Maj. at 622.
. See Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) (holding that a public defender "does not act 'under color of state law' when performing a lawyer's traditional functions as counsel to an indigent defendant in a state criminal proceeding").
. Maj. at 619, 620-22.
. Alaska Const. art. I, § 22.