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Private person recording conversation using police equipment before subject charged

Facts

A 10th grade female basketball player was sexually abused by Leslie Dewitt, who was her coach, on more than 20 occasions. The minor eventually told her mother, Monique, who took her to police. Monique told police she was going to confront Dewitt and record the conversation using her cell phone. Police asked if she would use a police recorder instead and she agreed.

Police observed the meeting from a distance and did not offer Monique any advice for techniques to use during the conversation. During the meeting, Dewitt made incriminating statements to Monique. She was convicted of touching a child for lustful purposes and sentenced to 30 years.  On appeal, she argued Monique was an agent of the government and thus should have been Mirandized by Monique. MCOA affirmed.

Analysis

A.  6th amendment

The 6th amendment comes into play once the subject is charged. In Tolbert v State, 511 So. 2d 1368 (Miss. 1987), MSC said that a charge may be formally made when a warrant is issued for the arrest of the accused. It may be made less formally when, acting without a warrant, law enforcement authorities place an accused under arrest.

Once charged, police may not, directly or clandestinely, undertake interrogation in the absence of the accused’s attorney without the accused’s consent. However, in this case, when the recording was made, Dewitt had not yet been charged with a crime. Thus, she did not have 6th amendment protection for this recording by Monique.

B.  4th amendment

Although the Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on her own initiative, the Amendment protects against such intrusions if the private party acted as an instrument or agent of the Government. In order to determine if a private party has reached the level of an agent of the government, the court should look to the extent of the government’s participation in the activities of the private party.

However, the presence of law enforcement officers who do not take an active role in encouraging or assisting an otherwise private search has been held insufficient to implicate Fourth Amendment interests, especially where the private party has had a legitimate independent motivation for conducting the search.

Monique had a legitimate independent motivation all along to conduct this search and speak with Dewitt about what her daughter told her had happened. Even though Monique was asked by the police to use their equipment to record the conversation and police were present, the police did “not take an active role in encouraging or assisting” Monique’s search.

Dewitt’s case is similar to Fisackerly where conversations were secretly recorded between two private parties, and the court determined that Fisackerly had not been deprived of his freedom of action in any significant way. Like Fisackerly, Dewitt voluntarily spoke with an independently motivated private party and gave statements which were recorded. Although confronted unexpectedly by Monique, Dewitt’s statements were freely and voluntarily given.

Accordingly, we do not find that she was acting as an agent of the police. Dewitt’s alleged constitutional rights were not violated. Additionally, there is nothing in the record to indicate Dewitt’s statement was obtained through any means of coercion or force. Therefore, we find that this issue is without merit.

 

https://courts.ms.gov/Images/Opinions/CO129134.pdf