State v. Lee

686 P.2d 816, 67 Haw. 307, 1984 Haw. LEXIS 121
CourtHawaii Supreme Court
DecidedAugust 24, 1984
DocketNO. 8943
StatusPublished
Cited by7 cases

This text of 686 P.2d 816 (State v. Lee) is published on Counsel Stack Legal Research, covering Hawaii Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lee, 686 P.2d 816, 67 Haw. 307, 1984 Haw. LEXIS 121 (haw 1984).

Opinions

[308]*308OPINION OF THE COURT BY

LUM, C.J.

The State appeals from an order of the circuit court suppressing incriminating evidence which was used to charge Dr. Michael Keith Lee with promoting drugs in violation of Hawaii Revised Statutes (HRS) §§ 712-1242(l)(c) and 712-1245(l)(c). At the hearing below, the parties agreed that a law enforcement officer posing as a patient, while wearing a recording device, made three visits to Dr. Lee’s private office, and recorded their conversations without first obtaining a warrant. The lower court ruled that the audio recordings violated Article I, § 7 of the Hawaii State Constitution. It therefore granted the suppression of all tapes, transcripts and reports made from the audio recordings.

We consider two issues in this appeal: (1) whether the recordings made in defendant’s office violated Article I, § 7 of the Hawaii Constitution, and (2) whether the recordings violated HRS § 803-42(b)(3) of the Hawaii Wiretap Act. On both issues we answer no. Hence, we reverse.

[309]*309I.

We turn first to the question of whether the audio recordings violated Article I, § 7 of the Hawaii Constitution, which provides:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches, seizures and invasions of privacy shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized or the communication sought to be intercepted.

Article I, § 7 has been recently interpreted in State v. Okubo, 3 Haw. App. 396, 651 P.2d 494 (1982), aff'd, 67 Haw. 197, 682 P.2d 79 (1984) and State v. Lester, 64 Haw. 659, 649 P.2d 346 (1982). Okubo involved the consensual recording, monitoring, transmitting and videotaping of a conversation which took place in a public restaurant. The defendants knew they were conversing with police officers, although only the officers consented to the recording and monitoring. 67 Haw. at 198, 682 P.2d at 80. The conversation in Lester was recorded in a public park by a government agent who consented to the recording. Lester did not consent to the recording, and was not aware he was being recorded. 64 Haw. at 663, 649 P.2d at 350. In both cases, the warrantless consensual recordings were proper under the U.S. and Hawaii constitutions, because the defendants did not have reasonable expectations of privacy in the recorded conversations.

The rationale of the federal line of cases which we followed in Lester, is that there is no reasonable expectation of privacy in consensual recording; the agent may testify to what was said in the conversation, and the tape merely preserves the credibility of his testimony. For example, in Lopez v. United States, 373 U.S. 427 (1963), a government agent recorded a conversation of which he was a participant. There was no installation of a recording device in the defendant’s premises. The U.S. Supreme Court found that the recording did not violate the constitution, as it was the most reliable evidence of a conversation to which the agent could testify in court. Id. at 439. See Lester, 64 Haw. at 664-65, 649 P.2d at 350-52.

In Lester and Okubo, this court found that the words “invasions of privacy” in Article I, § 7 of the Hawaii Constitution, did not afford [310]*310defendants greater protection than that guaranteed in the Fourth Amendment to the U.S. Constitution. Lester, 64 Haw. at 665, 649 P.2d at 352; Okubo, 67 Haw. at 200, 682 P.2d at 81. As we said in State v. Roy, 54 Haw. 513, 516, 510 P.2d 1066, 1068 (1973), “government activities in listening to a person’s words constitute an unreasonable search and seizure only if those activities violate that person’s justifiable expectations of privacy.” In Roy, we held that there was no violation of Article I, § 51 of the Hawaii Constitution where an undercover police agent without a warrant participated in a marijuana transaction in the defendant’s home.

In the instant case, although Dr. Lee contends he has a reasonable expectation of privacy because the recorded conversations occurred in his office, we see no greater protection merely because it occurred in his office, even if his office could be considered a private place. The officer consented to the recordings, and was a participant in the conversations. Since the officer was free to testify in court to what was said between him and Dr. Lee, the recordings are merely reliable corroboration of the conversations. Therefore, although the conversations occurred in his office, Dr. Lee cannot have the recordings of them excluded. See Lester, supra, 64 Haw. at 664-668, 649 P.2d at 350-353.

II.

Lee next contends that all warrantless recordings, even consensual, are prohibited under Hawaii’s Wiretap Law, HRS § 803-42(b)(3), and State v. Lo, 66 Haw. 653, 675 P.2d 754 (1983).

HRS § 803-42(b)(3) provides:

It shall not be unlawful under this part for a person to intercept a wire or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such 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 of this state or for the purpose of committing any other injurious act; provided that [311]*311installation in any private place, without consent of the person or persons entitled to privacy therein, of any device for recording, amplifying, or broadcasting sounds or events in that place, or use of any such unauthorized installation, or installation or use outside a private place of such device to intercept sounds originating in that place which would not ordinarily be audible or comprehensible outside, without the consent of the person or persons entitled to privacy therein is prohibited. (Emphasis added.) We read § 803-42(b)(3) to mean that the use of a recording

device to monitor a conversation is allowed, except that (1) “installation in any private place, without consent of the person or persons entitled to privacy therein” is prohibited, and (2) “installation or use outside a private place” without such consent is prohibited. In situation (1), if the statute prohibited “installation or use”, the recordings in this case would be unlawful. However, absent such language, there is an ambiguity in the statute’s meaning that requires us to ascertain the legislative intent.

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Bluebook (online)
686 P.2d 816, 67 Haw. 307, 1984 Haw. LEXIS 121, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lee-haw-1984.