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STATE v. PAGE3/3/1997
ORDER
IT IS ORDERED:
The petition for hearing previously granted on April 22, 1996, is hereby DISMISSED as improvidently granted.
Entered by direction of the court at Anchorage, Alaska on March 3, 1997.
I. Introduction
Edward Page is charged with selling cocaine to an undercover police informant. The sale took place in an apartment which had been furnished to the police and was videotaped by a hidden camera. No warrant was obtained authorizing the videotaping. The police officers did not record the audio portion of the transaction. The State sought to use the videotape as evidence. The trial court suppressed it because of the holding of State v. Glass, 583 P.2d 872 (Alaska 1978). The court of appeals affirmed in State v. Page, 911 P.2d 513 (Alaska App. 1996).
Glass held that the audio recording of a conversation in which a police agent was a participant could not be admitted as evidence at trial unless the recording was authorized by a warrant. Now the question is whether Glass applies to soundless videotaping. A majority of this court has decided to dismiss the petition in this case as improvidently granted. I would decide the case on the merits.
The central rationale of Glass rests on the high value placed on speech by our society. The Glass court was concerned with the possibility that secret tape recording by police would inhibit private discourse. As that rationale has no counterpart where only conduct, and not speech, is recorded, Glass is distinguishable and does not control the decision in this case.
As between Page and the police informant, the transaction in question was not private. The informant can testify in court as to what occurred. Admission of the video tape may serve to confirm or contradict the informant's testimony as to the visually observable details of what took place. It will assist in the discovery of the truth without threatening constitutionally protected values. Therefore, the tape should not have been suppressed.
II. Glass Does Not Apply to This Case
A. The Rationale of Glass
In Glass we held that police can not without a warrant secretly record a conversation even though a participant in the conversation consents to the recording. Audio recording by, or with the consent of, a participant to a conversation is permitted under federal law. The overwhelming majority of state courts also allow the practice. These jurisdictions accept the argument that because the police agent/participant can testify from memory as to what was said, the effect of the recording is to ensure the reliability of the testimony.
To be sure, such conversations are private, but the participant has the right, through oral testimony, to make public what was said. The tape recording adds veracity to the process.
This rationale was expressed by Mr. Justice White writing for the plurality of the United States Supreme Court in United States v. White, 401 U.S. 745, 751, 91 S.Ct. 1122, 1125-26, 28 L.Ed.2d 453 (1971) (citations omitted):
Concededly a police agent who conceals his police connections may write down for official use his conversations with a defendant and testify concerning them, without a warrant authorizing his encounters with the defendant and without otherwise violating the latter's Fourth Amendment rights. For constitutional purposes, no different result is required if the agent instead of immediately reporting and transcribing his conversations with defendant, either (1) simultaneously records them with electronic equipment which he is carrying on his person, (2) or carries radio equipment which simultaneously t
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