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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 

January 2014 Term 

_______________ FILED 

April 17, 2014 No. 13-0733 released at 3:00 p.m. 

RORY L. PERRY II, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 

STATE OF WEST VIRGINIA ex rel.
 

STATE OF WEST VIRGINIA,
 

Petitioner
 

v. 

THE HONORABLE ROBERT A. BURNSIDE, JR.,
 

Judge of the Circuit Court of Raleigh County; and
 

RICHARD E. HARDISON, JR.,
 

Respondents
 

Appeal from the Circuit Court of Raleigh County
 

The Honorable Robert A. Burnside, Jr., Judge
 

Criminal Case No. 12-F-293-B
 

WRIT GRANTED
 

Submitted: March 26, 2014
 

Filed: April 17, 2014
 

Patrick Morrisey Timothy J. LaFon, Esq.
 

Attorney General Ciccarello, DelGuidice & LaFon, PLLC
 

Scott E. Johnson, Esq. Charleston, West Virginia
 

Senior Assistant Attorney General Counsel for the Respondent
 

Charleston, West Virginia Richard E. Hardison, Jr.
 

Counsel for the Petitioner
 

JUSTICE KETCHUM delivered the Opinion of the Court.
 

JUSTICE BENJAMIN concurs and reserves the right to file a concurring Opinion.
 

JUSTICE LOUGHRY concurs and reserves the right to file a concurring Opinion.
 

JUDGE SIMS dissents and reserves the right to file a dissenting Opinion.
 

CHIEF JUSTICE DAVIS, deeming herself disqualified, did not participate.
 
 

 

 

JUSTICE WORKMAN, deeming herself disqualified, did not participate.
 

JUDGE HATCHER, sitting by temporary assignment.
 

JUDGE SIMS, sitting by temporary assignment.
 
 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT 

W.Va. Code § 62-1D-9(d) of the West Virginia Wiretapping and Electronic 

Surveillance Act, W.Va. Code § 62-1D-1, et. seq. [1987], is intended to prevent attorneyclient privileged communications from being monitored by wiretapping or through 

electronic surveillance. The third clause of W.Va. Code § 62-1D-9(d), considered in 

conjunction with the first two clauses of the statute, and within the West Virginia 

Wiretapping and Electronic Surveillance Act and Title III of the Omnibus Crime Control 

and Safe Streets Act, 18 U.S.C. § 2510, et. seq., was intended to prohibit the interception 

of all attorney-client privileged communications “emanating from the place of 

employment of any attorney at law licensed to practice law in this state.” The third 

clause of W.Va. Code § 62-1D-9(d) was not intended to prevent law-enforcement officers 

from intercepting wire, oral or electronic communications occurring within or emanating 

from a law office that involve criminal conduct. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Justice Ketchum: 

The Petitioner, the State of West Virginia, invokes this Court’s original 

jurisdiction in prohibition to challenge the June 26, 2013, order of the Circuit Court of 

Raleigh County suppressing an audio recording which the State sought to introduce in its 

criminal prosecution of Respondent Richard E. Hardison, Jr., a licensed lawyer in West 

Virginia (“Lawyer Hardison”). The Raleigh County Sheriff’s Department sent a 

confidential informant, equipped with a body wire, to meet with and attempt to purchase 

cocaine from Lawyer Hardison. The confidential informant allegedly discussed and 

purchased cocaine from Lawyer Hardison in his Beckley, West Virginia law office. 

After being indicted on two criminal counts related to this alleged drug 

transaction, Lawyer Hardison moved to suppress the audio recording of his conversation 

with the confidential informant arguing that the recording violated the West Virginia 

Wiretapping and Electronic Surveillance Act, W.Va. Code § 62-1D-9(d) [1987]. The 

circuit court agreed and granted Lawyer Hardison’s motion to suppress the audio 

recording. 

The State subsequently filed the present writ arguing that the circuit court’s 

interpretation of W.Va. Code § 62-1D-9(d) was erroneous. The State argues that the 

purpose of W.Va. Code § 62-1D-9(d) is to prevent attorney-client privileged 

communications from being intercepted by wiretapping or through electronic 

surveillance. Because there is no claim that the conversation between Lawyer Hardison 

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and the confidential informant was protected under the attorney-client privilege, the State 

argues that the circuit court’s order suppressing the audio recording was in error. 

After review, we agree with the State and conclude that W.Va. Code § 62­

1D-9(d) is intended to prevent attorney-client privileged communications from being 

intercepted by wiretapping or through electronic surveillance. There is no claim that the 

recorded conversation between Lawyer Hardison and the confidential informant was 

attorney-client in nature. Because Lawyer Hardison was not acting as an attorney during 

his conversation with the confidential informant, we grant the requested writ of 

prohibition. 

I. Factual & Procedural Background 

On April 6, 2012, the Raleigh County Sheriff’s Department sent a 

confidential informant, equipped with a body wire, to meet with and attempt to obtain 

cocaine from Lawyer Hardison. The confidential informant was an acquaintance and 

client of Lawyer Hardison.1 The State alleges that the confidential informant picked 

Lawyer Hardison up at his residence and drove to Lawyer Hardison’s law office. The 

1

According to the appendix-record, Lawyer Hardison represented the confidential 

informant on two matters, one criminal and one civil. The criminal matter was dismissed 

on March 13, 2012, prior to the April meeting in which the audio recording was made. 

The civil matter was pending when the April meeting occurred. It was dismissed on May 

15, 2012. 

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audio recording allegedly includes conversations between the confidential informant and 

Lawyer Hardison that occurred in the confidential informant’s automobile and continued 

as the two men entered Lawyer Hardison’s law office. The State alleges that the 

confidential informant purchased cocaine from Lawyer Hardison and that the sale 

occurred in Lawyer Hardison’s law office.2 They did not discuss legal matters or matters 

that were attorney-client in nature. 

The confidential informant agreed to wear the body wire that recorded his 

conversation with Lawyer Hardison. The West Virginia Wiretapping and Electronic 

Surveillance Act (“West Virginia Wiretapping Act” or “the Act”), W.Va. Code § 62-1D-1 

[1987], et. seq., permits the use of an electronic surveillance device when one party to the 

communication consents to the use of a recording device. W.Va. Code § 62-1D-3(e) of 

the West Virginia Wiretapping Act states: 

(e) It is lawful under this article for a person to intercept a 

wire, oral or electronic communication where the person is a 

party to the communication or where one of the parties to the 

communication has given prior consent to the interception 

unless the communication is intercepted for the purpose of 

committing any criminal or tortious act in violation of the 

constitution or laws of the United States or the constitution or 

laws of this state[.] 

2

The parties disagree on the quantity of cocaine that was allegedly purchased. The 

State’s brief asserts that the transaction was an attempt to obtain “two 8-balls [of cocaine 

worth] approximately five hundred dollars[.]” Lawyer Hardison’s brief states “the alleged 

drug transaction was for approximately .93 of a gram of cocaine and not two 8-balls.” 

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This one-party consent rule is an exception to the Act’s general requirement that the 

interception of wire, oral or electronic communications is only permissible when 

authorized by a designated circuit court judge. The procedure for designating specific 

circuit court judges to authorize electronic surveillance is set forth in W.Va. § 62-1D-7 

[1987] of the Act. It states: 

The chief justice of the supreme court of appeals shall, 

on an annual basis, designate five active circuit court judges 

to individually hear and rule upon applications for orders 

authorizing the interception of wire, oral or electronic 

communications: Provided, That no designated circuit judge 

may consider any application for such an order if he or she 

presides as judge of the circuit court of the county wherein 

the applied for installation would occur or of the county 

wherein the communications facility, line or device to be 

monitored is located. 

Pursuant to the West Virginia Wiretapping Act, a prosecutor (W.Va. Code § 62-1D-8) or 

an authorized member of the state police (W.Va. Code §§ 62-1D-11(a)(1)) may make an 

application to a designated circuit court judge for a warrant to intercept a communication 

with an electronic surveillance device. The Act permits a designated circuit court judge 

to issue a warrant ONLY IF the evidence and argument presented by the applicant 

establishes that: 

(1) There is probable cause to believe that one or more 

individuals are committing, have committed, or are about to 

commit one or more of the particular offenses enumerated in 

section eight of this article; 

(2) There is probable cause for belief that particular 

communications concerning such offense or offenses will be 

obtained through the interception; 

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(3) Normal investigative procedures have been tried and have 

failed and reasonably appear to be unlikely to succeed if 

attempted again, or that to do so would be unreasonably 

dangerous and likely to result in death or injury or the 

destruction of property; and 

(4) There is probable cause to believe that the facilities from 

which, or the place where, the wire, oral or electronic 

communications are to be intercepted are being used, or are 

about to be used, in connection with the commission of the 

offense, or offenses are leased to, listed in the name of, or 

commonly used by this person. 

W.Va. Code § 62-1D-11(c). 

Lawyer Hardison was indicted on two felony counts related to the alleged 

cocaine transaction with the confidential informant: (1) delivery of a controlled substance 

(cocaine) in violation of W.Va. Code § 60A-4-401 [1983]; and (2) conspiracy to commit 

the felony offense of delivering a controlled substance (cocaine) in violation of W.Va. 

Code § 61-10-31 [1971]. 

Lawyer Hardison filed a motion to suppress the audio recording of the 

conversation between himself and the confidential informant, asserting that the recording 

was made in violation of W.Va. Code § 62-1D-9(d) of the West Virginia Wiretapping Act. 

W.Va. Code § 62-1D-9(d) states: 

An otherwise privileged wire, oral or electronic 

communication intercepted in accordance with, or in violation 

of, the provisions of this article does not lose its privileged 

character: Provided, That when an investigative or lawenforcement officer, while engaged in intercepting wire, oral 

or electronic communications in the manner authorized by 

this article, intercepts a wire, oral or electronic 

communication and it becomes apparent that the conversation 

is attorney-client in nature, the investigative or law5 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

enforcement officer shall immediately terminate the 

monitoring of that conversation: Provided, however, That 

notwithstanding any provision of this article to the contrary, 

no device designed to intercept wire, oral or electronic 

communications shall be placed or installed in such a manner 

as to intercept wire, oral or electronic communications 

emanating from the place of employment of any attorney at 

law licensed to practice law in this state. 

The circuit court held a suppression hearing on Lawyer Hardison’s motion. 

The State argued that W.Va. Code § 62-1D-9(d) was intended to protect attorney-client 

privileged communications and “not [the] misconduct of lawyers[.]” Further, the State 

contended that Lawyer Hardison’s reading of the statute would lead to an absurd result: it 

would prevent the use of audio and video recordings of individuals engaging in criminal 

conduct from being admitted into evidence merely because the criminal conduct occurred 

in a law office. Conversely, counsel for Lawyer Hardison argued that the plain language 

of the statute barred the audio recording because the conversation occurred in Lawyer 

Hardison’s law office. 

The circuit court agreed with Lawyer Hardison and ruled that “[t]he 

statute’s proviso prohibits the type of recordings that occurred in this case. . . . It is 

ORDERED that audio, video3 or both recordings made in defendant’s law office are 

3

There is no video recording of the meeting between the confidential informant and 

Lawyer Hardison. According to Lawyer Hardison’s brief, the confidential informant was 

equipped with an audio and video recording device, but the video recording device 

malfunctioned. 

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SUPPRESSED and the state may not use them at trial.” While the circuit court’s order 

suppressed the audio recording, it denied Lawyer Hardison’s request to suppress the 

confidential informant’s testimony relating to the conversation at issue. 

After entry of the circuit court’s June 26, 2013, order suppressing the audio 

recording, the State filed the present writ. 

II. Standard of Review 

This Court addressed our standard of review for a writ of prohibition in a 

criminal matter in Syllabus Point 5 of State v. Lewis, 188 W.Va. 85, 422 S.E.2d 807 

(1992): 

The State may seek a writ of prohibition in this Court 

in a criminal case where the trial court has exceeded or acted 

outside of its jurisdiction. Where the State claims that the 

trial court abused its legitimate powers, the State must 

demonstrate that the court’s action was so flagrant that it was 

deprived of its right to prosecute the case or deprived of a 

valid conviction. In any event, the prohibition proceeding 

must offend neither the Double Jeopardy Clause nor the 

defendant’s right to a speedy trial. Furthermore, the 

application for a writ of prohibition must be promptly 

presented. 

“The writ of prohibition will issue only in clear cases, where the inferior 

tribunal is proceeding without, or in excess of, jurisdiction.” Syllabus, State ex rel. 

Vineyard v. O’Brien, 100 W.Va. 163, 130 S.E. 111 (1925). See also Syllabus Point 1, 

Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953) (“Prohibition lies only to 

restrain inferior courts from proceeding in causes over which they have no jurisdiction, 

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or, in which, having jurisdiction, they are exceeding their legitimate powers and may not 

be used as a substitute for writ of error, appeal or certiorari.”); Syllabus Point 2, State ex 

rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977) (“A writ of 

prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will 

only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its 

legitimate powers. W.Va. Code 53-1-1.”). 

Further, in Syllabus Point 4 of State ex rel. Hoover v. Berger, 199 W.Va. 

12, 483 S.E.2d 12 (1996), we set forth the following standard for issuance of a writ of 

prohibition when it is alleged a lower court is exceeding its authority: 

In determining whether to entertain and issue the writ 

of prohibition for cases not involving an absence of 

jurisdiction but only where it is claimed that the lower 

tribunal exceeded its legitimate powers, this Court will 

examine five factors: (1) whether the party seeking the writ 

has no other adequate means, such as direct appeal, to obtain 

the desired relief; (2) whether the petitioner will be damaged 

or prejudiced in a way that is not correctable on appeal; (3) 

whether the lower tribunal’s order is clearly erroneous as a 

matter of law; (4) whether the lower tribunal’s order is an oft 

repeated error or manifests persistent disregard for either 

procedural or substantive law; and (5) whether the lower 

tribunal’s order raises new and important problems or issues 

of law of first impression. These factors are general 

guidelines that serve as a useful starting point for determining 

whether a discretionary writ of prohibition should issue. 

Although all five factors need not be satisfied, it is clear that 

the third factor, the existence of clear error as a matter of law, 

should be given substantial weight. 

With the foregoing in mind, we turn to the parties’ arguments. 

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III. Analysis 

In this writ, we are asked to examine W.Va. Code § 62-1D-9(d) which is 

contained in the West Virginia Wiretapping Act, W.Va. Code § 62-1D-1, et. seq. By way 

of background, the West Virginia Wiretapping Act was enacted by the West Virginia 

Legislature in 1987. The Act was patterned after Title III of the Omnibus Crime Control 

and Safe Streets Act, 18 U.S.C. § 2510, et. seq. (“Title III”). See State v. Mullens, 221 

W.Va. 70, 86, n.34, 650 S.E.2d 169, 185, n.34 (2007). Title III was enacted by Congress 

in 19684 and it “sets forth comprehensive standards governing the use of . . . electronic 

surveillance by both governmental and private agents.” Mullens, 221 W.Va. at 74, 650 

S.E.2d at 173. Pursuant to Title III, 18 U.S.C.A. § 2516(2), states are authorized to 

“adopt coordinate statutes permitting the interception of wire, oral or electronic 

communications, and to grant greater, but not lesser, protection than that available under 

federal law.” Id. at 79, 650 S.E.2d at 178. As one legal scholar observed, “Congress did 

not intend to preempt the field of wiretap legislation [through Title III], but rather, it 

4

In 1986, Congress amended Title III through the enactment of the Electronic 

Communications Privacy Act, 18 U.S.C.A. § 3121, et. seq., in an effort to reflect 

technological advancements in the area of electronic surveillance. See Snow v. DirecTv, 

Inc., 450 F.3d 1314, 1320 (11th Cir. 2006). Congress amended Title III again with the 

enactment of the Communications Assistance for Law Enforcement Act of 1994, 47 

U.S.C.A. § 1001, et. seq. This Act “requires telecommunications carriers to ensure that 

their systems are technically capable of enabling law enforcement agencies operating 

with proper legal authority to intercept individual telephone calls and to obtain certain 

call-identifying information.” Mullens, 221 W.Va. at 74, n. 12, 650 S.E.2d at 173, n.12 

(internal citation omitted). 

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intended to allow states to enact legislation in this area as long as state laws are not more 

permissive than the federal scheme.” Angela M. Burdine, Criminal Procedure; 

Electronic Surveillance, 27 Pac. L.J. 614, 620-21 (1996). 

Turning to the West Virginia Wiretapping Act, W.Va. Code § 62-1D-6 

provides that “evidence obtained in violation of the provisions of this article shall not be 

admissible in any proceeding.”5 The issue we must resolve is whether the audio 

recording of the conversation between the confidential informant and Lawyer Hardison 

was made in violation of W.Va. Code § 62-1D-9(d) of the West Virginia Wiretapping Act. 

Lawyer Hardison argues that this Court should apply the plain language of 

the final clause of W.Va. Code § 62-1D-9(d) and find that the circuit court correctly 

suppressed the audio recording at issue. By contrast, the State argues that the final clause 

of W.Va. Code § 62-1D-9(d) cannot be construed in a vacuum and must be considered 

within the context and purpose of the entire statute. The purpose of W.Va. Code § 62­

5

Title III contains a similar provision to W.Va. Code § 62-1D-6. This provision is 

set forth at 18 U.S.C. § 2515, which states: 

Whenever any wire or oral communication has been 

intercepted, no part of the contents of such communication 

and no evidence derived therefrom may be received in 

evidence in any trial, hearing or other proceeding in or before 

any court, grand jury, department, officer, agency, regulatory 

body, legislative committee, or other authority of the United 

States, a State, or a political subdivision thereof if the 

disclosure of that information would be in violation of this 

chapter. 

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1D-9(d), according to the State, is to protect attorney-client privileged communications. 

The State contends that applying the plain language of the final clause of W.Va. Code § 

62-1D-9(d) without considering the context of the entire statute would produce an absurd 

result – it would transform a law office “into a sanctuary for criminal activity.” 

This Court has held that in deciding the meaning of a statutory provision, 

“[w]e look first to the statute’s language. If the text, given its plain meaning, answers the 

interpretive question, the language must prevail and further inquiry is foreclosed.” 

Appalachian Power Co. v. State Tax Dep’t, 195 W.Va. 573, 587, 466 S.E.2d 424, 438 

(1995). See also Syllabus Point 2, Crockett v. Andrews, 153 W.Va. 714, 172 S.E.2d 384 

(1970) (“Where the language of a statute is free from ambiguity, its plain meaning is to 

be accepted and applied without resort to interpretation.”); and Syllabus Point 2, State v. 

Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951) (“A statutory provision which is clear and 

unambiguous and plainly expresses the legislative intent will not be interpreted by the 

courts but will be given full force and effect.”). 

Additionally, this Court has held that “[a] statute is open to construction 

only where the language used requires interpretation because of ambiguity which renders 

it susceptible of two or more constructions or of such doubtful or obscure meaning that 

reasonable minds might be uncertain or disagree as to its meaning.” Sizemore v. State 

Farm Gen. Ins. Co., 202 W.Va. 591, 596, 505 S.E.2d 654, 659 (1998) (internal 

quotations and citation omitted). With these rules of statutory construction in mind, we 

turn to W.Va. Code § 62-1D-9(d). 

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The first clause of W.Va. Code § 62-1D-9(d) – “[a]n otherwise privileged 

wire, oral or electronic communication intercepted in accordance with, or in violation of, 

the provisions of this article does not lose its privileged character”– is straightforward 

and states that a privileged communication does not lose its privileged status simply 

because it is intercepted pursuant to the West Virginia Wiretapping Act. 

The second clause of W.Va. Code § 62-1D-9(d) states: 

That when an investigative or law-enforcement officer, while 

engaged in intercepting wire, oral or electronic 

communications in the manner authorized by this article, 

intercepts a wire, oral or electronic communication and it 

becomes apparent that the conversation is attorney-client in 

nature, the investigative or law-enforcement officer shall 

immediately terminate the monitoring of that conversation[.] 

The second clause contemplates a scenario in which a law-enforcement officer is engaged 

in intercepting wire, oral or electronic communications between a lawyer and his/her 

client. The second clause does not place an absolute bar on a law-enforcement officer 

intercepting a communication between a lawyer and his/her client, rather, it only bars 

intercepting such a conversation when it “becomes apparent that the conversation is 

attorney-client in nature.” 

While the first and second clauses of W.Va. Code § 62-1D-9(d) are 

straightforward, we find that an ambiguity arises in the third clause of the statute. The 

third clause of W.Va. Code § 62-1D-9(d) states: 

Provided, however, That notwithstanding any provision of 

this article to the contrary, no device designed to intercept 

wire, oral or electronic communications shall be placed or 

installed in such a manner as to intercept wire, oral or 

12 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

electronic communications emanating from the place of 

employment of any attorney at law licensed to practice law in 

this state. 

The first clause of W.Va. Code § 62-1D-9(d) addresses privileged 

communications generally. The second clause addresses attorney-client privileged 

communications. The final clause appears to place a prohibition on any communication, 

privileged or otherwise, occurring between any persons located in a law office. As 

demonstrated by the differing interpretations given the final clause by the parties to this 

appeal, the final clause’s intended meaning is not abundantly clear when considered 

within the context of the first two clauses of the statute.6 Because the final clause of this 

statute is preceded by two clauses addressing privileged communications, we find that the 

final clause is susceptible to differing constructions, and that “reasonable minds might be 

uncertain or disagree as to its intended meaning.” Sizemore, 202 W.Va. at 596, 505 

S.E.2d at 659. Accordingly, we find that W.Va. Code § 62-1D-9(d) is ambiguous. 

“A statute that is ambiguous must be construed before it can be applied.” 

Syllabus Point 1, Farley v. Buckalew, 186 W.Va. 693, 414 S.E.2d 454 (1992). “The 

primary object in construing a statute is to ascertain and give effect to the intent of the 

Legislature.” Syllabus Point 1, Smith v. State Workmen’s Comp. Comm’r, 159 W.Va. 

6

We note, however, that “the fact that parties disagree about the meaning of a 

statute does not itself create ambiguity or obscure meaning.” State v. Gibson, 226 W.Va. 

568, 571, 703 S.E.2d. 539, 542 (2010) (internal citation omitted). 

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108, 219 S.E.2d 361 (1975). Similarly, this Court has held that “the initial step in such 

interpretative inquiry [of a statute] is to ascertain legislative intent.” Syllabus Point 1, in 

part, Ohio County Comm’n v. Manchin, 171 W.Va. 552, 301 S.E.2d 183 (1983). Further, 

“[w]hen a statute’s language is ambiguous, a court often must venture into extratextual 

territory in order to distill an appropriate construction. Absent explicatory legislative 

history for an ambiguous statute . . . this Court is obligated to consider the . . . 

overarching design of the statute.” State ex rel. McGraw v. Scott Runyon Pontiac-Buick, 

Inc., 194 W.Va. 770, 777, 461 S.E.2d 516, 523 (1995). 

In ascertaining the legislative intent behind W.Va. Code § 62-1D-9(d), we 

find that the legislative history7 of the West Virginia Wiretapping Act provides a general 

7

The Acts of the Legislature of West Virginia states that W.Va. Code § 62-1D-1, et. 

seq., is 

AN ACT to amend chapter sixty-two of the code of West 

Virginia, one thousand nine hundred thirty-one, as amended, 

by adding thereto a new article, designated article one-d, 

relating to wiretapping and certain electronic surveillance; 

authorizing the interception of certain oral, electronic and 

wire communications under specified controlled 

circumstances; providing certain definitions of terms with 

respect thereto; establishing certain limits and procedures 

relating thereto; requiring court orders as a condition 

precedent to any such interception or installation of any 

wiretap, pen register, trap and trace device or similar device; 

designated judges; providing for civil immunities with respect 

thereto; providing exceptions; and providing criminal and 

civil penalties for violation of certain sections. 

1987 W.Va. Acts 1000-1001. 

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description of the statute, but it does not address the specific meaning or purpose of 

W.Va. Code § 62-1D-9(d). Because the Act’s legislative history does not provide 

guidance, we examine the law the West Virginia Wiretapping Act was patterned after, 

Title III. 

The first two clauses of W.Va. Code § 62-1D-9(d) have analogous 

provisions in Title III. Like the first clause of W.Va. Code § 62-1D-9(d), Title III states 

that a privileged communication does not lose its privileged status simply because it is 

intercepted. See 18 U.S.C. § 2517(4) [1986] (“No otherwise privileged wire, oral or 

electronic communication intercepted in accordance with, or in violation of, the 

provisions of this chapter, shall lose its privileged character.”). 

The second clause of W.Va. Code § 62-1D-9(d) and 18 U.S.C. § 2518(5) of 

Title III recognize that some privileged communications may be overheard in the course 

of wiretapping or electronic surveillance and both take steps to minimize this type of 

interception. The second clause of W.Va. Code § 62-1D-9(d) directs such surveillance to 

cease when it becomes apparent that a communication is attorney-client in nature. 

Similarly, when electronic surveillance is authorized pursuant to Title III, 18 U.S.C. § 

2518(5) requires that efforts be made to minimize the interception of communications 

that are not intended to be intercepted. Further, Title III “requires the temporary 

termination of surveillance when the intercepted communication is not relevant to the 

investigation . . . this minimization provision . . . diminishes the interception of privileged 

communications as much as possible.” Terrence Kossegi and Barbara Phair, The Clergy15
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Communication Privilege in the Age of Electronic Surveillance, 12 St. John’s J. Legal 

Comment, 241, 253 (1996). See also Clifford S. Fishman and Anne T. McKenna, 

Wiretapping and Eavesdropping, § 8:125 (2d ed. 1995) (stating that the effect of Title III 

minimization language severely limits interception of privileged communications). 

Unlike the first two clauses of W.Va. Code § 62-1D-9(d), Title III does not 

contain an analogous provision to the third clause of the statute. Title III contains no 

prohibition on the use of wiretapping or electronic surveillance of all communications 

emanating from a law office. The absence of such a provision in Title III demonstrates 

that Congress chose not to treat communications emanating from a law office differently 

than communications emanating from other locations. 

One rationale for this lack of a provision in Title III prohibiting wiretapping 

or electronic surveillance of all communications emanating from a law office is the 

recognition that lawyers engaging in alleged criminal activity should be investigated and 

prosecuted to the same extent as non-lawyers: 

A license to practice law is not a license to commit 

crime. When an attorney uses his position to aid an organized 

crime client in ongoing criminal activity or in running a 

criminal enterprise, few would disagree that the government 

has the right, indeed the duty, to investigate and prosecute 

that person to at least the same extent they would his 

principal. 

Steven Chananie and Ronald Goldstock, ‘Criminal’ Lawyers: The Use of Electronic 

Surveillance and Search Warrants in the Investigation and Prosecution of Criminal 

Wrongdoing, 136 U. Pa. L. Rev. 1855 (1988). 

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Based on the foregoing, we find that Title III contains no provision barring 

the use of wiretapping or electronic surveillance of all communications emanating from a 

law office. This lack of a corresponding provision in Title III weighs in favor of the 

State’s argument that the third clause of W.Va. Code § 62-1D-9(d) must be read and 

interpreted within the context of the other two clauses of the statute, i.e., the third clause 

is meant to protect communications emanating from a law office that are attorney-client 

privileged in nature; the final clause is not meant to protect communications emanating 

from a law office that involve a lawyer engaging in criminal conduct. 

Having determined that Title III does not contain an analogous provision to 

the third clause of W.Va. Code § 62-1D-9(d), we next examine the statute in light of the 

purpose and context of the other statutory provisions contained within the West Virginia 

Wiretapping Act. The purpose of Title III, which the West Virginia Wiretapping Act was 

patterned after, is to achieve the dual goals of “protecting individual privacy, while 

permitting limited government surveillance in accordance with uniform standards.” 

Mullens, 221 W.Va. at 75, 650 S.E.2d at 174. These dual goals of Title III are applicable 

to the West Virginia Wiretapping Act. We find that these goals are not furthered by 

affording the third clause of W.Va. Code § 62-1D-9(d) the broad reading urged by 

Lawyer Hardison. Under Lawyer Hardison’s suggested construction of the statute, the 

West Virginia Wiretapping Act would prevent law-enforcement surveillance of all 

communications emanating from a law office, including the alleged criminal 

communications that occurred in the present case – a lawyer selling cocaine. Further, if 

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this Court adopted Lawyer Hardison’s suggested construction of W.Va. Code § 62-1D9(d), law offices in West Virginia could become staging areas for criminal conduct. We 

find no support for this construction of W.Va. Code § 62-1D-9(d) in any corresponding 

provision of the Act or in any provision of Title III. 

Finally, we note that when construing an ambiguous statute, “[w]e need not 

leave our common sense at the doorstep[.]” Price Waterhouse v. Hopkins, 490 U.S. 228, 

241 (1989). This Court has long recognized that 

[i]t is the duty of a court to construe a statute according to its 

true intent, and give it such construction as will uphold the 

law and further justice. It is as well the duty of a court to 

disregard a construction, though apparently warranted by the 

literal sense of the words in a statue, when such construction 

would lead to injustice and absurdity. 

Syllabus Point 2, Click v. Click, 98 W.Va. 419, 127 S.E. 194 (1925). Lawyer Hardison’s 

suggested construction of W.Va. Code § 62-1D-9(d) would lead to such an absurdity – it 

would shield a lawyer, and any other person involved in criminal activity in a law office, 

from being subject to wiretapping or electronic surveillance simply because the criminal 

activity was occurring in a law office. We do not believe the Legislature intended such 

an absurd result. Rather, we find that the State’s suggested interpretation of the third 

clause of W.Va. Code § 62-1D-9(d) – that it is meant to protect attorney-client privileged 

communications occurring within or emanating from a law office – is a sound and 

reasonable construction of the statute that is in accordance with the goals of the West 

Virginia Wiretapping Act and of Title III. 

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Based on all of the above, we hold that W.Va. Code § 62-1D-9(d) of the 

West Virginia Wiretapping and Electronic Surveillance Act, W.Va. Code § 62-1D-1, et. 

seq. [1987], is intended to prevent attorney-client privileged communications from being 

monitored by wiretapping or through electronic surveillance. The third clause of W.Va. 

Code § 62-1D-9(d), considered in conjunction with the first two clauses of the statute, 

and within the West Virginia Wiretapping and Electronic Surveillance Act and Title III of 

the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510, et. seq., was intended 

to prohibit the interception of all attorney-client privileged communications “emanating 

from the place of employment of any attorney at law licensed to practice law in this 

state.” The third clause of W.Va. Code § 62-1D-9(d) was not intended to prevent lawenforcement officers from intercepting wire, oral or electronic communications occurring 

within or emanating from a law office that involve criminal conduct. 

Applying this holding to the present case, we find that the circuit court 

erred when it suppressed the audio recording made by the confidential informant. The 

conversation between the confidential informant and Lawyer Hardison should only have 

been suppressed pursuant to W.Va. Code § 62-1D-9(d) if it was attorney-client in nature. 

In Syllabus Point 2 of State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979), this Court 

set forth a three-factor test to determine whether the attorney-client privilege may be 

asserted: 

In order to assert an attorney-client privilege, three 

main elements must be present: (1) both parties must 

contemplate that the attorney-client relationship does or will 

exist; (2) the advice must be sought by the client from the 

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attorney in his capacity as a legal advisor; (3) the 

communication between the attorney and client must be 

intended to be confidential. 

The second and third factors cannot be satisfied. Lawyer Hardison was not acting in his 

capacity as a lawyer during his April 6, 2012, conversation with the confidential 

informant. The confidential informant was not seeking legal advice from Lawyer 

Hardison; he was allegedly only seeking to purchase cocaine from him. Further, the 

confidential informant, having agreed to wear a recording device, did not intend that this 

conversation be kept confidential. Finally, the attorney-client privilege “belongs to the 

client.” State ex rel. Allstate Ins. Co. v. Gaughan, 203 W.Va. 358, 372, n.21, 508 S.E.2d 

75, 89, n. 21 (1998). The confidential informant, as the putative client in this case, has 

not asserted the privilege. Because the conversation was not attorney-client in nature, the 

circuit court erred by suppressing the audio recording under W.Va. Code § 62-1D-9(d). 

We therefore grant the State’s requested writ. 

IV. Conclusion 

For the foregoing reasons, we find that the State is entitled to the requested 

writ of prohibition to prohibit the circuit court from suppressing the audio recording 

made by the confidential informant. We therefore vacate the June 26, 2013, order of the 

Circuit Court of Raleigh County. 

Writ Granted. 

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