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Ninth Circuit Holds Undercover Agent Can Record Illegal Transaction Without Warrant or Permission if Invited onto Premises – Las Vegas Criminal Defense and Business Law Attorney Andre Lagomarsino

The Ninth Circuit Court of Appeals held that an undercover agent can record an illegal transaction if invited onto the premises. Not having a warrant or requesting permission to record does not negate the legality of the recording. US v. Wahchumwah.

The U.S. Fish and Wildlife Service Agency began investigating Ricky Wahchumwah, after receiving several anonymous complaints that he was selling eagle parts. During the investigation, Special Agent Robert Romero cultivated a relationship with Wahchumwah, such that Wahchumwah sold Romero a set of eagle wings. When Romero later visited Wahchumwah in the latter’s home, Romero decided to wear a concealed audio video recording device. During Romero’s visit, Wahchumwah showed the undercover federal agent a blue spiral notebook which contained several eagle plumes. Wahchumwah also told Romero that he had recently purchased an eagle tail.

Based on the information seen and heard in the concealed audio video recorder, the U.S. Fish and Wildlife Service Agency executed a search warrant on Wahchumwah’s home and the property’s outbuildings. After his arrest, Wahchumwah was convicted of conspiracy, Lacey Act violations, and Bald and Golden Eagle Protection Act violations. (The Lacey Act creates civil and criminal penalties for persons who illegally take, transport, or sell wildlife, fish, and plants. Under the Bald and Golden Eagle Protection Act, a person who takes any part of a bald eagle without a permit will receive a criminal penalty.)

Wahchumwah appealed arguing a violation of his 4th Amendment rights.

The Ninth Circuit Court of Appeals, relying on the U.S. Supreme Court’s decision in Hoffa v. U.S., upheld the district court’s decision stating that “4th Amendment protection does not extend to information that a person voluntarily exposes to a government agent, including an undercover agent.”

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