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Virginia Court Issues Important Decision Regarding Wiretap Act

An appellate court recently issued an opinion following a Virginia criminal defendant’s charges involving sexual internet conversations and videos with an undercover detective posing as a minor. The defendant was charged with four counts of using a communications system to procure a minor and one count of soliciting a child believed to be under fifteen years old. The trial court granted the defendant’s motion to strike two of the four charges, and the jury convicted him of the remaining charges. Among several issues, the defendant argued that the court violated the wiretapping act and erred in denying his motion to suppress the conversations.

According to the facts, an undercover detective created a fake profile purporting to be a thirteen-year-old girl, and he was randomly paired with the defendant. Throughout the conversation, the defendant sent explicit messages and videos of an adult male engaging in sexual acts. The detective took screenshots of the chat but could not capture the video. The detective identified the defendant with information the man gave him during the chat. Shortly afterward, the Virginia SWAT team executed a search warrant and handcuffed the defendant. However, they then removed the handcuffs and told the defendant he was not under arrest. The detective and defendant spoke about the conversations and then asked for an attorney. After requesting the attorney, the defendant voluntarily gave statements about his family and potential charges.

The defendant moved to suppress his chats’ contents with the detective, arguing that they were electronic communications obtained in violation of the wiretap act. He contended that only two parties could consent to the recording of the conversation, the persona of Lilly and the defendant, and as such, the detective was a third party. Further, he argued that the statements he made to the police were made during a custodial interrogation, and he should have received his Miranda rights.

Virginia’s wiretapping law defines a “person” as an agent of the Commonwealth and any individual, partnership, association, stock company, trust, or corporation. The law does not include a “persona” or virtual identity as a “person”. As such, because the girl’s persona was not a person, she was not a party to the chats; instead, the detective was the other party. Therefore, the detective did not violate the wiretapping act. Ultimately, the court found that the court did not err in denying the defendant’s motion to suppress.

Have You Been Charged with a Virginia Criminal Offense?

If you or someone you know has been charged with a Virginia sex crime, contact the attorneys at Robinson Law. The attorneys at our law firm understand how complex Virginia’s criminal justice system can be, and we work to ensure that our clients receive the best defense. Our law firm handles Virginia criminal offenses stemming from assault and battery, domestic assault, drug charges, DUI, expungements, federal crimes, traffic violations, and more. We have significant experience working with local judges and prosecutors and use our knowledge to prepare effective defenses, even in the toughest cases. Contact our firm at 703-542-4008, to schedule a free consultation with an attorney at our office.

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