DENNIS, Justice.[fn*] [fn*] The Honorables Ned E. Doucet, Jr., of the Court of Appeal, Third Circuit, and Thomas J. Kliebert and Robert J. Klees of the Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Calogero, Dennis and Watson.

In this case we are called upon to decide whether eavesdropping by state government agents on conversations between an accused and an informant by means of a radio transmitter concealed on the informant's person with his consent violates Article 1, § 5 of the 1974 Louisiana Constitution. We hold that electronic surveillance must be conducted in full compliance with the warrant requirement. A person's "communications" are specifically protected by the state constitution against unreasonable searches, seizures or "invasions of privacy." La.Const. 1974, Art. 1, § 5. Consequently, antecedent justification before a magistrate is a precondition of lawful electronic interception of private communications just as it is essential to the lawful search of a house or the seizure of papers and effects. This constitutional safeguard and its warrant requirement protect each person's private communications and privacy regardless of whether his communicatee has consented to an interception or invasion.

Defendant, Charles W. Reeves, an employee of the Department of Elections was convicted of two counts of perjury. He was sentenced concurrently on each count to six months in jail and fined $1000. Defendant was found guilty on evidence showing that in testifying before a grand jury he denied having had conversations about raising campaign contributions by false expense vouchers with a fellow employee, Alvin Pilley. Defendant moved unsuccessfully before trial to suppress tape recordings and transcripts of three face-to-face conversations that state agents had intercepted without his consent through the use of a wireless transmitter they had concealed on Pilley. At trial the state was permitted, over the defendant's objection, to introduce recordings and transcripts of the intercepted communications. It is undisputed that this evidence was obtained without a warrant but with Pilley's consent and cooperation.

Defendant contends on appeal that the secret monitoring and taping of his conversations by state agents without first securing a warrant, was an unreasonable invasion of his privacy, prohibited by Article 1, § 5 of the Louisiana Constitution of 1974. The state argues that Article 1, § 5 provides no greater protection against invasions of privacy than the Fourth Amendment of the United States Constitution, as interpreted by the United States Supreme Court in United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971). In White a plurality of the high court concluded that the Fourth Amendment does not require government agents to first secure a warrant before they secretly monitor private communications when one of the participants consents to the monitoring. We are called on to decide whether the affirmative right to privacy and specific protection of communications contained in Article 1, § 5 of the Louisiana Constitution of 1974, requires state agents to secure a search warrant before such electronic surveillance can be conducted.

Article 1, § 5 of the 1974 Louisiana Constitution says that:

Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy. No warrant shall issue without probable cause supported by oath or affirmation, and particularly describing the place to be searched, the persons or things to be seized, and the lawful purpose or reason for the search. Any person adversely affected by a search or seizure conducted in violation of this Section shall have standing to raise its illegality in the appropriate court.

By its clear terms the constitution explicitly protects every person's "communications" from unreasonable searches, seizures, and "invasions of privacy," thereby affirmatively establishing a right to privacy including a person's communications. The safeguard is unlimited and thus covers all of a person's private communications. Because the constitution expressly elevates communication as a protected interest to a position of equal stature with other expressly protected interests, invasions or interceptions of them may not be conducted without a warrant issued upon probable cause, particularly describing the communication to be invaded and the lawful purpose or reason for the interception. It is clear that the framers of the constitution sought a solution regulating but not prohibiting electronic surveillance of communications whereby the rights of individual liberty and the needs of law enforcement are fairly accommodated.

The genesis of this accommodation is recorded in the proceedings of the Bill of Rights and Elections Committee of the constitutional convention. Members of the committee urged the adoption of a safeguard more perfect than the Fourth Amendment against threats to the liberty of communications posed by technological advances in electronic wiretapping, eavesdropping and computer science. An early draft of Section 5 provided: "No law shall permit the interception or inspection of any private communication or language." The committee decided to modify this outright ban, however, after realizing that it prohibited electronic surveillance even under court supervision. To accommodate this perceived need, the committee altered its draft by placing communications on an equal footing with other expressly protected interests and by interposing the requirement of a warrant before any interception can be conducted. It is clear from the discussion and debate that the committee did not consider that the legitimate needs of law enforcement justified any exception to the warrant requirement for electronic surveillance other than, perhaps, specific exceptions similar to those which have been recognized for searches of other protected areas and interests.

The final committee proposal was adopted without change by the delegates to the constitutional convention and approved by the electorate. Because Article 1, § 5 explicitly and unqualifiedly protects a person's "communications" against warrantless "invasions of privacy," we cannot believe that any reasonable delegate or voter considered that the proposed constitution excluded any form of private communication from its safeguards. These safeguards for communications and privacy are not contained in either the Fourth Amendment or the 1921 Louisiana Constitution. Clearly, the Constitutional aim is to elevate them as protected interests to the same rank as houses, papers and effects and to afford them equal defense by the warrant requirement. If the intention of the framers had been otherwise, it would have been an easy matter for them to except certain types of invasions of communications from the warrant requirement, e.g., those done with the consent of a party to the communication. Moreover, we are convinced that the vast majority of law abiding Louisianians regard warrantless surreptitious electronic monitoring of their conversations, even with the consent and collaboration of their communicatees, as unreasonable invasions of their private communications.

Applying these precepts to the present case, we conclude that the state government officials' activities in electronically listening to defendant's words violated his right to privacy and right to be secure in his private communications under Article 1, § 5 of the 1974 Louisiana Constitution. Accordingly, we must reverse the defendant's conviction, order that his intercepted communications be suppressed, and remand the case for further proceedings. The testimony of the informant, Alvin Pilley, however, will not be suppressed, and the state may introduce this evidence at a new trial. As we have noted, the specific constitutional provisions banning unreasonable invasions of communications and privacy were adopted because of the threat to the liberties of innocent citizens by technological advancements in electronic surveillance and computerization. There is no indication the delegates or the electorate sought to protect a person guilty of a crime against betrayal by his confidant or considered the introduction of an informant's testimony itself an unreasonable invasion of privacy and communications.

Several other states have recently adopted constitutional provisions affirmatively guaranteeing the right to privacy or specifically protecting communications against unreasonable invasion. Alaska Const. of 1959, Art. 1, § 22, as amended in 1972 ("The right of the people to privacy is recognized and shall not be infringed. . ."); Florida Const. (1968 Revision) Art. 1, § 12 (protects "against . . . the unreasonable interception of private communications by any means"); Montana Const. of 1972, Art. II, § 10 ("The right of individual privacy is essential to the well being of a free society and shall not be infringed without the showing of a compelling state interest."). The Supreme Court of each state has held that warrantless electronic surveillance of private communications by state officials is an unreasonable invasion of privacy even when one of the parties to the conversation consents to the surveillance.

In State v. Sarmiento, 397 So.2d 643 (Fla. 1981) the Florida Supreme Court held that, although the defendant who discussed a sale of heroin with an undercover officer in his home, assumed the risk that the officer might reveal the contents of their conversation to the outside world, the defendant enjoyed a reasonable expectation of privacy that no one else was listening to the conversation by means of electronic eavesdropping, and thus the recording of his conversation by state officers violated the Florida Constitution. The Court stated:

"We are unwilling to impose upon our citizens the risk of assuming that the uninvited ear of the state is an unseen and unknown listener to every private conversation which they have in their homes. That is too much for a proud and free people to tolerate without taking a long step down the totalitarian road." 397 So.2d at 645.

The Montana Supreme Court, in State v. Brackman, 582 P.2d 1216 (Mont. 1978), held that defendant, who was charged with felony intimidation by threatening individuals in a dispute over a debt in a parking lot, was protected by the state constitution against monitoring and recording by officers without a search warrant or prior showing of a compelling state interest in defendant's conversation, and that the evidence was properly suppressed even though the threatened individuals consented to the eavesdropping. The Alaska Supreme Court, in State v. Glass, 583 P.2d 872 (Alaska 1978), held that its state charter required the suppression as evidence of a conversation between defendant and an informant in the defendant's home which was electronically recorded without a search warrant by police officers stationed outside defendant's home through the use of a transmitter worn by the informant.

Article 1, § 11 of the Michigan Constitution of 1963 is very similar to the Fourth Amendment and does not affirmatively guarantee the right to privacy or specifically protect communications. However, the Michigan Supreme Court in People v. Beavers, 393 Mich. 554, 227 N.W.2d 511 (1975), held that electronic surveillance may not be conducted without a warrant even if one of the parties to the communication consents to the invasion of his privacy. The court, in interpreting its state charter recognized the "significant distinction between assuming the risk that communications directed to one party may subsequently be repeated to others and the simultaneous monitoring of a conversation by the uninvited ear of a third party functioning with one of the participants yet unknown to the other," 227 N.W.2d at 515, and suppressed the conversation between defendant and a police informant equipped with a concealed transmitter which was relayed to a police officer without defendant's knowledge and without authorization of a search warrant.

The state's attorneys argue that Louisiana merely incorporated the United States Supreme Court's interpretation of the Fourth Amendment in Article 1, § 5 of our state constitution. This contention is clearly erroneous. Our charter's affirmative establishment of a right to privacy and its explicit protection of communications as safeguards against unwarranted electronic surveillance are among the most conspicuous instances in which our citizens have chosen a higher standard of individual liberty than that afforded by the current federal jurisprudence. See State v. Abram, 353 So.2d 1019 (La. 1978); State v. Hutchinson, 349 So.2d 1252 (La. 1977); cf. State v. Overton, 337 So.2d 1201 (La. 1976); Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1 (1974); Jenkins, The Declaration of Rights, 21 Loy. L.Rev. 27 (1975).

To prove this point it is hardly necessary to go beyond the words of the two constitutions. The Fourth Amendment says that

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Justice Black pointed out that this literal language "imports tangible things, and it would require an expansion of the language used by the framers, in the interest of 'privacy' or some equally vague judge made goal, to hold that it applies to the spoken word." Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Black, J., dissenting). The Louisiana Constitution, on the other hand, expressly establishes an affirmative right to privacy and treats wiretapping and bugging as "communications" within the protection against unreasonable searches, seizures, or "invasions of privacy." See Hargrave, supra, at 20-22. Evidently, the framers and the citizens were dissatisfied with the federal standard of privacy and chose to erect a special defense against potential abuses of modern electronic technology.

Moreover, while the privacy and communications of ordinary law abiding citizens were a major concern of the delegates and the electorate in adopting the 1974 Louisiana Constitution, the United States Supreme Court currently views the Fourth Amendment safeguard against electronic surveillance only in terms of the expectations and risks that "wrongdoers" or "one contemplating illegal activities ought to bear." In United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), government agents testified at trial to incriminating conversations between a government informant and the defendant which the agents, acting without a warrant, overheard by monitoring the frequency of a radio transmitter concealed on the informant. A plurality of the court, reversing the court of appeals decision, held that the defendant's Fourth Amendment rights had not been violated. The plurality opinion reasoned that, since the law permits A to relay verbally to the police what is revealed to him by B (as in Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966) and Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966)), or record and later divulge it (as in Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963)), neither should the law protect B when A conspires with governmental agents to betray B by contemporaneously transmitting to the other all that is said. 401 U.S. at 751, 91 S.Ct. at 1125-26, 28 L.Ed.2d at 458; 401 U.S. at 785, 91 S.Ct. at 1142, 28 L.Ed.2d at 478 (Harlan, J., dissenting). The plurality opinion is not concerned with protection of the ordinary citizen, who has never engaged in illegal conduct in his life, to assure "that he may carry on his private discourse freely, openly and spontaneously without measuring his every word against the connotations it might carry when instantaneously heard by others unknown to him and unfamiliar with his situation or analyzed in a cold, formal record played days, months, years after the conversation." 401 U.S. at 790, 91 S.Ct. at 1145, 28 L.Ed.2d at 480 (Harlan, J., dissenting). The failure to address this concern or to explain why an ordinary citizen does not have a reasonable expectation of privacy from wiretapping or bugging even with the collaboration of his communicatees has been the subject of incisive scholarly criticism. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L.Rev. 349 (1974); Comment, Electronic Eavesdropping and the Right to Privacy, 52 B.U.L.Rev. 831 (1972). Cf. Greenwalt, The Consent Problem in Wiretapping and Eavesdropping: Surreptitious Monitoring With the Consent of a Participant in the Conversation, 68 Colum.L.Rev. 189 (1968).

We, of course, give careful consideration to the United States Supreme Court interpretations of relevant provisions of the federal constitution, although we are not bound by them in construing the Louisiana Constitution. The White rationale is entirely inappropriate, however, as a guide for the interpretation of our specific safeguard against invasion of communications and our affirmative right to privacy. The Fourth Amendment does not contain these explicit guarantees and, as interpreted by the White plurality, simply does not address some of the types of invasions of privacy that concerned the delegates and the people of this state in adopting the 1974 Louisiana Constitution. Indeed, it seems likely that Louisiana decided to establish greater safeguards in its 1974 constitution partly because the course of the United States Supreme Court decisions in White and other cases had been "outflanked by the technological advances of the very recent past." Lopez v. United States, 373 U.S. 427, 465-466, 83 S.Ct. 1381, 1401-1402, 10 L.Ed.2d 462, 486 (1963) (Brennan, J., dissenting).

The legislative history and absolute wording of the Louisiana Constitution indicate that the delegates recognized the qualitative difference between the known risk we all take that a false friend might betray our trust by revealing the contents of our conversation to others and the unknown risk that the uninvited ear of the state is an unseen and unknown listener to our private conversations. A party speaking in private conversation does not knowingly expose his conversation to the public simply because an unknown party is surreptitiously hearing and recording every word that is being spoken. A confidence repeated by a false friend is received by others with attendant circumstances of the friend's credibility and memory. Without the use of electronic surveillance, one's remarks are not preserved for posterity on the reels of magnetic tape. As soon as electronic surveillance comes into play, the risk changes crucially and clearly there is an invasion of privacy. While there is no indication that the delegates sought to protect a person against betrayal by his confidant, clearly they sought to eliminate the danger that an official record is being made of what we say to unknown government agents at their unfettered discretion. See State v. Sarmiento, supra; State v. Glass, supra; State v. Brackman, supra; United States v. White, supra (Harlan, J., dissenting); Lopez v. United States, supra (Brennan, J., dissenting); Holmes v. Burr, 486 F.2d 55 at 72 (9th Cir. 1973) (Hufstedler, J., dissenting); Amsterdam, supra; Comment, 52 B U.L.Rev. at 842-843.

It is evident from the wording of Article 1, § 5 that it mattered little to the delegates that consensual surveillance is arguably less obnoxious than wholly clandestine surveillance. If the delegates had wished to establish a lesser safeguard, or draw nice distinctions between types of electronic surveillance, they would have adopted a more general provision, identical or more similar to the Fourth Amendment. Indeed, a respectable school of thought holds the view that the Fourth Amendment itself prohibits both methods of electronic surveillance in the absence of judicial supervision. See United States v. White, supra (Harlan, J., dissenting); Lopez v. United States, supra (Brennan, J., dissenting); Hufstedler, Invisible Searches for Intangible Things: Regulation of Governmental Information Gathering, 127 U.Penn.L.Rev. (1979); Parker, A Definition of Privacy, 27 Rut.L.Rev. 275 (1974); Amsterdam, supra; Comment, 51 B.U.L.Rev., supra; Greenwalt, supra.

Our constitution does not condemn the use of participant monitoring by law enforcement personnel. When circumstances justify electronic surveillance, however, the resulting invasion of privacy and communications must be conducted in full compliance with the warrant requirement in order for evidence gained thereby to be admitted at trial. To protect the right of privacy (not for the defendant whose privacy has already been invaded, but for law abiding citizens in the state) is and should be of primary importance to the courts. State v. Melson, 284 So.2d 873, 875 (La. 1973). The warrant requirement does not unreasonably impinge on legitimate law enforcement efforts. In all of the cases we have examined, none revealed circumstances so exigent that law enforcement personnel would not have had time to obtain a warrant. In the present case, the informant reported to the FBI in June, 1979 that the defendant was attempting to coerce false expense vouchers and campaign contributions from him. The state attorney general began an investigation of the matter on October 4, 1979 and obtained the informant's consent to participant electronic surveillance on October 15, 1979. The defendant's communications were intercepted on October 17, October 26 and November 23, 1979. If there was probable cause to believe these communications would constitute crimes or contain evidence thereof, a warrant could have been secured. Furthermore, the failure to obtain a warrant does not prevent the informant from testifying to what he heard and observed in his conversations with the defendant. See State v. Sarmiento, supra; State v. Glass, supra; State v. Brackman, supra; People v. Beavers, supra.

For the reasons assigned, the defendant's convictions and sentences are reversed, the contents of the electronic interceptions of the defendant's communications are suppressed, and the case is remanded for a new trial or other proceedings consistent with this opinion.

REVERSED AND REMANDED.

WATSON, J., dissents and assigns reasons.

DENNIS, Justice.[fn*] [fn*] The Honorables Ned E. Doucet, Jr., of the Court of Appeal, Third Circuit, and Thomas J. Kliebert and Robert J. Klees of the Fourth Circuit, participated in this decision as Associate Justices pro tempore, joined by Chief Justice Dixon and Associate Justices Calogero, Dennis and Watson.

ON REHEARING

[32] BLANCHE, Justice.

On our initial review of this case, we held that the warrantless monitoring of a conversation through the use of an electronic transmitter concealed on the person of one of the parties to the communication violates Article 1, § 5 of our 1974 Louisiana Constitution. After careful consideration on rehearing, we must reverse our original finding, and in so doing, we affirm the conviction and sentence imposed upon the defendant by the trial court. The use of electronic surveillance equipment, which is hidden from view on the person of a consenting party to a conversation, does not "invade the privacy" of the other party or parties in the conversation within the meaning of our Constitution, and, therefore, the warrant requirement does not attach.

In this opinion we will discuss the defendant's assignment of error number 1. None of the remaining assignments of error present reversible error, and they involve legal issues which are governed by clearly established principles of law. Therefore, they will be treated in an unpublished appendix which will comprise part of the record in this case.

During the fall of 1979, the State Attorney General's office received information from the F.B.I. concerning complaints filed by Alvin Pilley, an employee of the Department of Elections and Registration. An investigation ensued, and a meeting was arranged with Pilley on October 4, 1979. At this meeting, investigators for the Attorney General's Office were informed by Pilley that he was being pressured by his supervisors to contribute money to the campaign of Commissioner Jerry Fowler. In addition, Pilley exposed a procedure approved by certain employees of the Department of Elections whereby he could receive reimbursement for any contributions he made to the campaign fund by filing false state travel expense vouchers.

Arrangements were made by the Attorney General's Office to provide Pilley with $100.00 to contribute to the campaign. With Pilley's consent, the investigators concealed an electronic transmitter on his person in order to overhear and record his conversations with other employees of the Department of Elections concerning the falsification of the travel vouchers as a means to reimburse Pilley for his $100.00 contribution. On several different occasions during the months of October and November of 1979, Pilley wore the electronic transmitter into the voting machine warehouse in Lake Charles. Investigators were posted outside in two cars. One of these cars was equipped with machines to receive and tape record the transmissions. The other automobile contained a repeater system which allowed the agent seated in the car to hear Pilley's conversations.

Once inside the warehouse, Pilley engaged in conversations with several Department of Elections employees. Among them was the defendant, Charles Reeves, who was the voting machine transportation and storage inspector and also Pilley's supervisor. During his recorded colloquy with Pilley, the defendant made several statements concerning the false travel vouchers.

On November 26, 1979, the defendant was requested to appear before a grand jury which had been formed to investigate allegations of illegal political activity, theft, and falsification of official travel vouchers by employees of the Louisiana Department of Elections and Registration. Reeves' testimony before the grand jury resulted in a three count indictment against him for perjury. After a jury trial, the defendant was found guilty of two of the three perjury counts. He was sentenced on one count to pay a fine of $1,000 and serve six months in the parish jail. On the other count, the defendant was sentenced to six months in the parish jail. These sentences were ordered by the judge to be served concurrently.

By his assignment of error number 1, the defendant asserts that the trial court erred in denying his motion to suppress the tape recordings of the conversations in which he participated while inside the voting machine warehouse. Our original opinion reversed the defendant's conviction and sentence on this issue. We interpreted the language of our 1974 Constitution Article 1, § 5, which protects a person's "communications" against unreasonable "invasions of privacy", to proscribe the admission of evidence secured through electronic surveillance of any type when such surveillance was conducted without compliance with the warrant requirement. However, we failed to analyze properly this constitutional protection. Although the defendant's conversations were surely "communications" within the meaning of Article 1, § 5, the manner in which the conversations were monitored, by consensual electronic surveillance, did not "invade the privacy" of Charles Reeves.

In many respects, Article 1, § 5 of the 1974 Constitution is similar to the Fourth Amendment of the United States Constitution. Each is concerned with the protection of people and their privacy against unreasonable governmental intrusion. Katz v. united States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Abram, 353 So.2d 1019 (La. 1977), cert. denied, 441 U.S. 934, 99 S.Ct. 2058, 60 L.Ed.2d 663 (1979); State v. Fearn, 345 So.2d 468 (La. 1977). There are, however, obvious differences in terminology. Unlike the U.S. Constitution, our provision explicitly protects every person's "communications" from "unreasonable invasions of privacy."

The present case necessitates the interpretation of "communications" and "invasions of privacy," those terms in Article 1, § 5 of the 1974 Louisiana Constitution which are not found in the Fourth Amendment. Our inquiry is two-fold (1) Whether the defendant's conversations were "communications" within the meaning of Article 1, § 5 and (2) Whether the manner in which the conversations were intercepted constituted an "invasion of privacy." Prior Louisiana jurisprudence provides us with little guidance in this formidable task. Therefore, an analysis of the transcripts of the Louisiana Constitutional convention and an examination of other sources of reference are essential to our understanding of Article 1, § 5.

Without question, the members of the Committee on Bill of Rights and Elections, who drafted Article 1, § 5 of the 1974 Louisiana Constitution, were aware of the potential threat to privacy posed by governmental electronic surveillance. The original proposal for Article 1, § 5, which was tentatively adopted by the Committee on April 17, 1973, would have prohibited all forms of electronic surveillance, with or without a warrant. Delegate Jenkins, the author of this draft, argued that such a ban was necessary to protect the communications of innocent persons from governmental electronic intrusion.

On May 19, 1973, however, the initial draft was revised. On that date, Professor Benjamin Shieber addressed the Committee on certain aspects of the proposed Bill of Rights. Shieber severely criticized the Committee's decision to ban electronic surveillance. He contended that a provision of this sort had no place in the Louisiana Constitution and would prove to be devastating to law enforcement officials in their efforts to combat organized crime. If the Committee's goal was to protect communications from electronic surveillance, Sheiber suggested that the members should adopt a search and seizure article with language similar to the Fourth Amendment. After all, the United States Supreme Court had interpreted the Fourth Amendment to protect communications from unreasonable searches and seizures. The Committee agreed with Sheiber's assessment and eliminated the ban on electronic surveillance. However, the word "communications" was inserted in the list of persons, property, houses, papers, and effects in Article 1, § 5. In this way, the members of the Committee insured and made it explicit that each person's communications would be free from unreasonable searches, seizures, or invasions of privacy.

Therefore, the transcripts of the Louisiana constitutional convention do provide us with the answer to our first inquiry. Clearly, the Framers intended the defendant's intercepted conversations to be "communications" and protected by Article 1, § 5 from invasions of privacy.

Unfortunately, the transcripts do not reveal the intention of the delegates as to the second and more difficult question — whether consensual electronic surveillance is an "invasion of privacy." We find that both the provision protecting against "invasions of privacy" and the absolute ban on electronic surveillance appeared in the original draft of Article 1, § 5 of the 1974 Louisiana Constitution. Initially, members of the Committee on Bill of Rights and Elections did not consider the phrase "invasions of privacy" in connection with electronic surveillance. There was no need. All forms of electronic surveillance were proscribed in Mr. Jenkins' original proposal. "Invasions of privacy" were discussed only in the context of the procurement of blood samples for DWI arrests. Even after the Committee decided to eliminate the ban on electronic surveillance, discussions on the "invasions of privacy" provision focused primarily on its effects on the seizure of documents held by fiduciaries.

We do observe that the protection against "invasions of privacy" was debated in relation to electronic surveillance on one occasion. During the Committee's June 14, 1973 meeting, the members expressed their approval of Article 1, § 5 and the affirmative guarantee provided to each person's "communications" against "invasions of privacy." However, the Committee wisely avoided a determination of which forms of electronic surveillance were "invasions of privacy" and subject to the warrant requirement. Instead, they chose to write the constitutional provision to allow for judicial interpretation. As a result, Article 1, § 5 was rendered more flexible; it would be more responsive to future technological advances in the area of electronic surveillance.

Our concern in this case, therefore, is whether consensual electronic surveillance is an "invasion of privacy." At the outset, we note that privacy is an elusive term, for it encompasses a multitude of different interests. The fact that scholars disagree on the meaning of privacy in relation to searches and seizures is not surprising. Judge Cooley defined privacy simply as the "right to be let alone." Other writers with more expansive ideas on the subject have described the concept of privacy as "the right to share and to communicate." One recent comment has viewed privacy as the "individual's interest in determining for himself when, how, and to what extent information about him is revealed to others."

We refrain from the temptation to engage in the almost impossible task of pronouncing an all-embracing definition of privacy or an "invasion of privacy." Rather, we limit our discussion to electronic surveillance, or more specifically, consensual electronic surveillance, and its effect upon the interests sought to be protected by the phrase "invasions of privacy" in Louisiana Constitution Article 1, § 5.

Our jurisprudence sheds little light upon the meaning of privacy and its relationship to electronic surveillance. In State v. Petta, 359 So.2d 143 (La. 1978), we followed the reasoning of United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971) and approved the warrantless interception of two telephone conversations when consent of one of the parties had been obtained. However, we examined State v. Petta, 359 So.2d 143 (La. 1978) only in terms of the Fourth Amendment. A subsequent decision, State v. Hennigan, 404 So.2d 222 (La. 1981), did hold that consensual electronic surveillance violated neither the Louisiana Constitution nor the United States Constitution. In that case, the defendant failed to extensively argue that his Louisiana constitutional rights had been infringed. Therefore, we had no opportunity to scrutinize Louisiana Constitution Article 1, § 5 in relation to consensual electronic surveillance.

The United States Supreme Court, on the other hand, has examined intensively the effect of electronic surveillance upon one's privacy in construing the Fourth Amendment. In Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the Court was confronted with the problem of the Government's employment of nonconsensual electronic surveillance without a warrant. Federal agents had attached an electronic listening device to the outside of a public telephone booth to overhear and record the defendant's telephone conversations inside the booth. At trial, the judge permitted the Government to introduce the recordings into evidence. The Supreme Court of the United States reversed and held that the recordings were inadmissible in evidence absent a warrant, for the Government's activities in electronically listening to and recording the defendant's words violated the privacy upon which he justifiably relied while using the telephone booth.

The United States Supreme Court arrived at a different conclusion when consensual as opposed to nonconsensual electronic surveillance was employed by the Government to secure evidence. In United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), the Court held that consensual electronic surveillance was not subject to the warrant requirement, for it did not invade the constitutionally "justifiable" expectations of privacy of the defendant.

The facts in White are very similar to our present case. A government informer concealed a radio transmitter on his person and engaged in conversations with the defendant. By monitoring the frequency of the transmitter carried by the informant, government agents were able to overhear certain incriminating statements by the defendant. No warrant had been obtained. During the defendant's trial, the court overruled defense objections to the testimony of the agents who had conducted the electronic surveillance. The United States Supreme Court upheld the trial court's ruling. Justice White, in speaking for the Court, observed that each person who enters into a conversation assumes certain risks which are not protected by the Fourth Amendment. One such risk, as stated in Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), is that his listener may be a police agent who may report their conversation to the authorities immediately following their encounter. In those circumstances, the Fourth Amendment is not violated, for the person's constitutionally "justifiable" expectations of privacy are not invaded. The declarant, by entering into the conversation, had accepted the risk that his listeners may disclose his confidences. Justice White found that no different result was required where a police officer or agent, who conceals his identity and is a party to the conversation, wears an electronic device:

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. Hoffa v. United States, 385 U.S., at 300-303, [87 S.Ct., at 412-414] 17 L.Ed.2d at 381, 382. 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, Lopez v. United States, supra [ 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462]; (2) or carries radio equipment which simultaneously transmits the conversations either to recording equipment located elsewhere or to other agents monitoring the transmitting frequency. On Lee v. United States, supra [ 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270]. If the conduct and revelations of an agent operating without electronic equipment do not invade the defendant's constitutionally justifiable expectations of privacy, neither does a simultaneous recording of the same conversations made by the agent or by others from transmissions received from the agent to whom the defendant is talking and whose trustworthiness the defendant necessarily risks.

We agree with United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), that consensual electronic surveillance involves different privacy considerations than non-consensual electronic surveillance. Moreover, we believe that the "invasion of privacy" provision in Article 1, § 5 of the 1975 Louisiana Constitution does not prohibit warrantless consensual surveillance. However, we choose not to adopt the analysis of the Supreme Court in White. Rather, we prefer to follow our previous decisions and examine the effect of the constitutional guarantee against "invasions of privacy" on consensual electronic surveillance in light of the test articulated by Justice Harlan in Katz. See State v. Williams, 375 So.2d 364 (La. 1979); State v. Lamartiniere, 362 So.2d 526 (La. 1978). Harlan's approach for measuring a person's expectation of privacy is as follows:

". . . My understanding of the rule that has emerged from prior decisions is that there is a two-fold requirement; first, that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable' . . ." 389 U.S. at 361, 88 S.Ct. at 516.

We find that the defendant Reeves, a victim of consensual electronic surveillance, did not exhibit a subjective expectation of privacy. No other conclusion is possible when we examine the defendant's privacy interests in the statements made to Pilley in the three following hypothetical situations: (1) Pilley does not contact the police before the conversation takes place (i.e. he is not a police agent), but he voluntarily reports the defendant to the authorities immediately after the termination of the communication. At this time, Pilley repeats the conversation to the police. (2) Pilley is a police agent, but he wears no electronic devices. (3) Pilley is a police agent, and he conceals an electronic transmitting device on his person.

Clearly, in the first situation, the defendant has no subjective expectation of privacy. Reeves, by entering into the conversation, should realize that Pilley, or any other party to the communication, may violate his confidence and disclose to others, including the police, the incriminating remarks made therein. Though the violation of a confidence is rarely contemplated by the declarant, his knowledge of the risk (disclosure) is ever present and destroys his subjective expectation that the communication will forever remain a secret (private). Accordingly, unless there is honor among thieves, disclosure to another by one who possesses knowledge of the other's misdeeds is a fact of life that precludes the subjective expectation of privacy.

Similarly, Reeves possesses no subjective expectation of privacy in the second situation. What difference would it make that he did not know to whom he was speaking and that his "friend" to whom he was making these disclosures of illegal activity was in fact a police officer or police informer? The fact remains that the risk that his confidence will be violated and that his disclosures may be repeated to others is the same regardless whether made to a false friend or police informer. That risk was stated as a fact of life in Lopez v. United States, 373 U.S. 427, 465, 83 S.Ct. 1381, 1402, 10 L.Ed.2d 462 (1963):

". . . The risk of being overheard by an eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals, is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak (Brennan, dissenting). . ."

This court, in State v. Moses, 367 So.2d 800 (La. 1979), cited this passage from Lopez with approval in interpreting Article 1, § 5 of our 1974 Louisiana Constitution.

The third situation is our present case. As in the second hypothetical, Reeves expects and accepts the risk that Pilley is a possible police agent. Pilley's presence as an informant, therefore, does not invade the subjective expectations of privacy of the defendant.

One aspect of Reeves' encounter with Pilley has been altered by this third situation, however. Hidden from view on Pilley's person is an electronic transmitter. In our original opinion, we found that the presence of the transmitter dramatically changes the effect on the privacy interests of the defendant who engages in the conversation:

". . . A party speaking in private conversation does not knowingly expose his conversation to the public simply because an unknown party is surreptitiously hearing and recording every word that is being spoken. A confidence repeated by a false friend is received by others with attendant circumstances of the friend's credibility and memory. Without the use of electronic surveillance, one's remarks are not preserved for posterity on the reels of magnetic tape. As soon as electronic surveillance comes into play, the risk changes crucially and clearly there is an invasion of privacy. While there is no indication that the delegates sought to protect a person against betrayal by his confidant, clearly they sought to eliminate the danger that an official record is being made of what we say to unknown government agents at their unfettered discretion. . ."

Thus, our first review of this case hinged the invasion of the defendant's privacy on the fact that the electronic equipment recorded his conversation word-for-word. We failed to realize, however, that the risk of disclosure includes the manner of disclosure. As illustrated by our previous hypotheticals, the defendant enters into the conversation knowing that his confidences may be disclosed to anyone by the listener. He also must realize that this disclosure could take any form. To decide otherwise would force this court to speculate as to which form of disclosure a person risks and which one he does not anticipate when entering into a conversation. Such theoretical line drawing is result oriented. For example, how can we conclude that a declarant foresees and risks that his listener is a police agent who will testify in court against him, and then rationally decide that the same speaker cannot anticipate and risk that the listener will tape his conversation and play it in court as in this present case? We cannot. The risks that his confidence will be violated and his disclosures may be repeated to others is the same. He assumes this risk upon entering the conversation. Therefore, we find that the defendant exhibited no actual expectation of privacy.

If we assume, arguendo, that the defendant did exhibit a subjective expectation of privacy, is this the type of expectation which society at large would recognize as reasonable? We think not. Society seeks to foster truth, not to suppress it. The presence of the electronic transmitter has but one effect. Instead of the informant committing the conversation to memory, a machine tapes each and every sentence of the communication. The machine notes the inflection of the voices and the context in which remarks are made. If the defendant speaks innocently, his own words will exculpate him. However, if he implicates himself, the recordings prevent him from denying his participation in the conversation. Surely, society would not consider reasonable an expectation of privacy which would result in a more inaccurate version of the events in question.

Those who oppose warrantless consensual surveillance argue that it will have a chilling effect on free and open discourse among members of society. This claim is speculative at best. In order for members of society to feel inhibited, they must be aware of the use of consensual surveillance without a warrant and have a corresponding fear of it. Yet, federal agents have always been allowed to monitor the conversations of a party without a warrant when consent of one of the parties to the communication had been obtained. United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971); On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952). Until our initial decision in this case, Louisiana also permitted warrantless consensual surveillance. State v. Hennigan, 404 So.2d 222 (La. 1981); In re Haggerty, 257 La. 1, 241 So.2d 469 (1970). The fact that this type of surveillance exists in the federal system or existed in our jurisdiction has not frustrated society's willingness to trust others. Free and open discourse has not been inhibited.

Although the defendant's conversations were "communications", we hold that the manner in which these communications were intercepted, through warrantless consensual electronic surveillance, did not invade his privacy within the meaning of La. Const. art. 1, § 5. Therefore, the trial court's denial of the defendant's motion to suppress the tape recordings was proper.

This assignment has no merit.

DECREE

For the foregoing reasons, the defendant Reeves' conviction and sentence are affirmed.

LEMMON, J., subscribes to the opinion and assigns additional reasons.

DIXON.C.J., and DENNIS, J., dissent with reasons.

CALOGERO, J., dissents believing that the opinion on original hearing was eminently correct.