State v. Salinas
| Decision Date | 21 May 1992 |
| Docket Number | No. 58458-3,58458-3 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Ruben R. SALINAS, Appellant. |
Washington Appellate Defender Ass'n Suzanne Lee Elliott, Seattle, for appellant.
Norm Maleng, King County Prosecutor, Theresa L. Fricke, Sr. Pros. Atty., Michael E. Shaw, Deputy, Seattle, for respondent.
James E. Lobsenz, Seattle, amicus curiae for appellant on behalf of American Civil Liberties.
This case arises from a reverse sting operation in which Willie Charles Davis, a paid police informant, posed as a narcotics seller. Detective Mark W. Orendorff of the King County Police Drug Enforcement Unit met Davis in early April 1990 when Davis was awaiting trial on a drug charge. Davis called Detective Orendorff to inquire about a reduction or dismissal of the drug charge in exchange for his assistance and cooperation with the King County Police in undercover drug operations. When Detective Orendorff informed Davis the King County Prosecutor would not agree to reduce or dismiss Davis' drug charge, Davis was still willing to work as a paid informant because he needed money to pay a defense attorney. Soon after his initial conversation with Detective Orendorff, Davis participated in a transaction which resulted in two arrests and the seizure of 10 ounces of cocaine.
Davis called Detective Orendorff again on April 28, 1990, and told him a man named "Ernesto" (who was unavailable at the time of Salinas' trial) knew someone who would buy 3 kilograms of cocaine. Davis and Ernesto later agreed that they, along with the buyer(s), would meet at a Denny's restaurant in the Georgetown area at 9:45 p.m. on April 29; if all went well, the transaction could be completed that night.
At 9:20 p.m. on April 29 King County Police Chief Nickle, acting pursuant to RCW 9.73.230, authorized the interception, transmission, and recording of any conversations regarding the sale of drugs between Davis and the potential buyer(s). The determination of probable cause to intercept was based on Davis' contacts with Ernesto and his assistance to the King County Police Drug Enforcement Unit in the past. The report also contained the certificate of Davis' consent to the interception and recording of his conversations. On May 2, 1990, Judge Jerome M. Johnson of King County Superior Court reviewed the authorization and determined it met the requirements of RCW 9.73.230 (see Laws of 1989, ch. 271, § 204, p. 1291).
Pursuant to the authorization and certificate of consent, Davis wore a wire and proceeded with several surveillance detectives to Denny's. King County detectives had earlier searched Davis and his vehicle and provided him with 3 kilograms of cocaine obtained from police evidence. At the restaurant, Davis met Ernesto, along with Salinas and Mario Coronel (Salinas' codefendant whose trial was severed). Davis negotiated mainly with Salinas, who appeared to be the buyer and primary source of money. Davis, Ernesto, and Salinas transacted no business but spoke again by phone that night (actually the early morning hours of April 30) and agreed on the amount of cocaine (1.25 kilograms) and the price ($25,000). That conversation was recorded pursuant to the first authorization. They also agreed to talk again by phone to set up a time to meet and make the transaction.
The next day, Davis telephoned Salinas, and they agreed to meet at the same Denny's around 10:30 p.m. to complete the drug deal. Later in the day, Chief Nickle executed a final authorization allowing the recording and transmission of conversations to take place that night, again receiving Davis' consent and the subsequent approval of Judge Johnson.
Before going to the restaurant, Davis was provided with 1.25 kilograms of cocaine and wired with audio intercept equipment. When Davis and the accompanying surveillance officers arrived at Denny's, they found officers from the Seattle Police Department eating there and decided to move the transaction to the McDonald's parking lot down the street. Davis informed the defendant and Coronel of the change, and they proceeded to McDonald's. Salinas retrieved a brown paper bag containing the $25,000 from his car, then got into Davis' car. The following is a partial record of the conversation that ensued:
. . . . .
Davis testified he handed Salinas the kilogram package of cocaine in exchange for a stack of money. Salinas put the 1 kilogram package of cocaine between his legs, opened it by gouging it with a key given to him by Davis, pinched part of it off, and tasted it. Davis then hit the "red alert" pager to signal the detectives they could make the arrest. Several officers arrived within seconds.
Detective Gaddy of the King County Drug Enforcement Unit testified he saw Salinas hand the money to Davis, and it appeared the transaction was still going on when he approached the car. Detective Gordon testified he secured the scene of the crime and inventoried the evidence. A paper sack containing $8,000 was on the right front floorboard, where Salinas had been sitting, and in the middle of the seat was a bundle of cash totaling $17,000. The 1 kilogram package of cocaine was unwrapped, lying between the two front seats, and the .25 kilogram was wrapped in newspaper between the seats.
Salinas was charged with possession of cocaine with intent to deliver, a violation of the Uniform Controlled Substances Act (RCW 69.50.401(a)). Before trial, he moved to suppress all evidence obtained by Davis, arguing both that the electronic interceptions were an unconstitutional invasion of privacy and that Chief Nickle's determinations of probable cause for the initial authorization did not establish Davis' reliability. Judge Noe denied the motion to suppress; Salinas was found guilty of possession with intent to deliver. This appeal followed.
The defendant has not asked the court to review the privacy issue under the fourth amendment to the United States Constitution or under 18 U.S.C. § 2510 et seq., which governs the interception, recording, and disclosure of wire, oral, and electronic communications under federal law. See United States v. Caceres, 440 U.S. 741, 744, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979). Rather, defendant asks us to find the statute unconstitutional under the provisions of Const. art. 1, § 7:
No person shall be disturbed in his private affairs, or his home invaded, without authority of law.
The issue as to whether there is a right of privacy under our constitution where one party, as here, consents to the contents of the conversation being recorded was settled in three cases decided in the 1960's: See State v. Jennen, 58 Wash.2d 171, 361 P.2d 739 (1961); see also State v. Wright, 74 Wash.2d 355, 444 P.2d 676 (1968) and State v. Goddard, 74 Wash.2d 848, 447 P.2d 180 (1968). This court held there was no expectation of privacy and Const. art. 1, § 7 did not prevent the disclosure of the conversation. These cases have neither been overruled explicitly or implicitly nor have the cases decided by this court subsequent to Wright, Goddard, and Jennen, none of which concerned the privacy of electronic communications, impaired the validity of the earlier cases. See, e.g., State v. Boland, 115 Wash.2d 571, 800 P.2d 1112 (1990); State v. Myrick, 102 Wash.2d 506, 688 P.2d 151 (1984); State v. Jackson, 102 Wash.2d 432, 688 P.2d 136 (1984); State v. Chrisman, 100 Wash.2d 814, 676 P.2d 419 (1984); State v. Ringer, 100 Wash.2d 686, 674 P.2d 1240 (1983); State v. White, 97 Wash.2d 92, 640 P.2d 1061 (1982); State v. Simpson, 95 Wash.2d 170, 622 P.2d 1199 (1980); State v. Hehman, 90 Wash.2d 45, 578 P.2d 527 (1978).
Beginning in 1909, the Legislature has passed laws relating to communication privacy, see, e.g., Laws of 1909, ch. 249, §§ 410, 411, p. 1021 (RCW 9.73.010, 9.73.020), providing criminal penalties for divulging a telegram or opening a sealed letter. RCW 9.73.030-.070, making it unlawful to intercept, record, or divulge wire communications without first obtaining the consent of all participants in the communication, was passed in 1967. RCW 9.73.090 was enacted in 1970, and allowed police, fire, emergency medical personnel, emergency communication centers, and poison control personnel to record incoming phone calls, exempting such personnel and places from the provisions of RCW 9.73.030 through 9.73.080. In addition, it allowed police to videotape or record custodial interrogations, but only after notifying the party being recorded or taped. RCW 9.73.090(1).
RCW 9.73.090 also allows electronic eavesdropping after authorization by a judge or magistrate with the consent of one of the parties to the conversation:
It shall not be unlawful for a law enforcement officer acting in the performance of the officer's official duties to intercept, record, or disclose an oral communication or conversation where the officer is a party to the communication or conversation or one of the parties to the communication or conversation has given prior consent to the interception, recording, or disclosure: Provided, That prior to the interception, transmission, or recording the officer shall obtain written or telephonic...
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