United States v. Wahchumwah

When an undercover agent is invited into the home by a suspect, the warrantless use of a concealed audio-video recording device does not violate the Fourth Amendment.

Ricky Wahchumwah appealed his conviction for offenses related to the sale of eagle parts. United States Fish and Wildlife Services began an investigation of Wahchumwah based on anonymous tips that he was selling eagle parts. Special Agent Robert Romero went undercover to investigate. Wearing a concealed audio-video recorder, Romero stopped by Wahchumwah’s house and was invited inside by Wahchumwah. Subsequently, Wahchumwah sold a pair of eagle plumes to Romero. On a later date, Fish and Wildlife agents executed a search warrant on Wahchumwah’s home, and Wahchumwah was arrested. On appeal, Wahchumwah argued that a Fourth Amendment violation occurs when an undercover agent uses an audio device to record an illegal transaction without a warrant. The Court, however, held that when an undercover agent is invited into the home, the suspect forfeits his expectation of privacy as to the areas that were knowingly exposed. The Court reasoned that the audio recording did not violate any privacy expectation, because it revealed no more than what was revealed to Romero himself. The Court stated that this case was different from the warrantless installation of a hidden camera that would continue to record activities without the presence of an agent. The Court also distinguished this case from Kyllo v. United States, because Wahchumwah invited Romero into his home and voluntarily exposed its contents. Further, the Court held that Wahchumwah’s conviction was multiplicious and two of the counts must be vacated. Last, the Court rejected Wahchumwah’s Confrontation Clause claim, because the anonymous statements admitted were not offered for the truth of the matter asserted therein, and, therefore, did not amount to hearsay. AFFIRMED in part and REVERSED AND REMANDED in part.