Search
Close this search box.

Audio and video recordings with CI do not require a warrant

Facts

On February 24, 2021, John Netherland was indicted by a Neshoba County grand jury and charged as follows:

John Edward Netherland . . . on or about May 2, 2019, did wilfully, unlawfully, feloniously and knowingly sell and deliver to MBN confidential informant #104-2019, a Schedule II controlled substance, namely Methamphetamine, in the amount of less than two (2) grams, in Neshoba County, Mississippi, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Mississippi.

The indictment further charged Netherland as a second-time drug offender under Mississippi Code Annotated section 41-29-147 (Rev. 2018) because Netherland had been previously convicted of the felony crime of the sale of methamphetamine on March 14, 2011, for which he was sentenced to serve ten years in the custody of the Mississippi Department of Corrections. In addition, because he was also convicted in federal court on January 5, 2001, for the felony crime of possession with intent to distribute methamphetamine and sentenced to a term of thirty-two months in the custody of the MDOC, Netherland was charged as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2020).

On the day of the trial, June 22, 2021, Netherland changed his plea and pleaded guilty to the charges. The State stated that part of its proof against Netherland was an audio and video recording of the informant’s purchase of the methamphetamine from Netherland. The circuit court accepted Netherland’s plea as freely and voluntarily given and sentenced him as a second-time drug offender and a habitual offender to a term of twelve years with four years suspended and eight years to serve in the custody of the MDOC

Netherland, pro se, filed a post conviction relief (PCR) motion, alleging that his Fourth Amendment privacy rights were violated when the informant’s drug purchase was videotaped without a warrant. MCOA affirmed.

Analysis

Despite Netherland allegations of constitutional violations, the transcript of Netherland’s plea and sentencing hearing reveals that he was explained his constitutional rights but chose to waive them and plead guilty. By doing so, Netherland waived his constitutional challenges to the evidence the State had against him.

In addition, notwithstanding the waiver, we find no merit to Netherland’s claim that the videotape evidence constituted an unreasonable search. Even if Netherland had not pleaded guilty, the circuit court was correct that the audio and video recordings did not violate Netherland’s constitutional rights.

In Casas, law enforcement recorded conversations between an informant and the defendant discussing the details of the delivery and purchase price of marijuana and cocaine. In Casas’s challenge to the admission of these conversations on appeal, we stated: The Mississippi Supreme Court has held that electronic surveillance, ‘bugging,’ does not tread upon the constitutional rights of the Fourth Amendment when the consent of one of the parties is first obtained. The expectation of privacy, though perhaps shaken by the mistaken belief that a person to whom one voluntarily confides will not reveal the conversation does not reach constitutional proportions. See MSC Everett v. State, 248 So. 2d 439  (Miss. 1971). Price consented to the officers eavesdropping on the conversations; therefore, the agents did not have to seek a court order to record the exchange between the Casas and Price.

Moreover, in Bankston, we noted that a defendant had no reasonable expectation of privacy in a phone conversation with the victim of his crime. We cited Casas and reiterated that one contemplating illegal activities must realize and risk that his companions may be reporting to the police.

In the case at hand, Netherland ran the similar risk of selling drugs to an individual who turned out to be an informant wired to record the transaction. Accordingly, the circuit court was correct in finding that the audio and video recordings in Netherland’s case did not violate any of his constitutional rights.

 

https://courts.ms.gov/images/Opinions/CO173685.pdf