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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