Kadoranian by Peach v. Bellingham Police Dept., a Div. of City of Bellingham
| Decision Date | 21 May 1992 |
| Docket Number | No. 58445-1,58445-1 |
| Citation | 829 P.2d 1061,119 Wn.2d 178 |
| Parties | Alice KADORANIAN, by her Guardian ad Litem, Matthew W. PEACH, and all other persons similarly situated, Appellant, v. BELLINGHAM POLICE DEPARTMENT, A DIVISION OF THE CITY OF BELLINGHAM, a subdivision of the State of Washington, the Northwest Regional Drug Task Force, and the State of Washington, Respondents. |
| Court | Washington Supreme Court |
William Johnston, Bellingham, for appellant.
Bruce Disend, Bellingham City Atty., Joan Hoisington, Asst., Bellingham, for respondents.
Tom P. Conom, Edmonds, Mark W. Muenster, Steven W. Thayer, Vancouver, amicus curiae for appellant on behalf of Washington Ass'n of Crim. Defense Lawyers.
This is a civil action seeking damages allegedly caused by constitutional and statutory violations of the right to privacy. Appellant, Alice Kadoranian, claims her right to privacy was violated when Bellingham police officers inadvertently intercepted and recorded her brief response to a police informant's telephone inquiry asking whether her father was at home.
Ms. Kadoranian is a 15-year-old Canadian citizen and resident. The telephone interception and recording which she claims violated her right to privacy was inadvertent. It occurred in May 1990. This was after her father, Kevorok (George) Kadoranian, became the focus of an investigation by the Northwest Regional Task Force (hereinafter Task Force). At all times herein, the Task Force was a law enforcement agency, including Bellingham police officers, which was investigating drug offenses in Whatcom County.
On May 23, 1990, law enforcement officers intercepted a package at the Federal Express office in Bellingham, Washington. The package was addressed to "Sal Carino" and was ultimately determined to contain 1 kilogram of cocaine. Task Force officers arrested Sal Carino when he picked up the package.
In exchange for a promise of leniency, Carino agreed to the interception and recording of a telephone call from him to George Kadoranian, his "boss" and the alleged owner of the cocaine. Carino was to telephone Kadoranian at his home or place of business in British Columbia, Canada.
Investigating officers requested an authorization to intercept and record the telephone call, pursuant to this state's privacy act, specifically RCW 9.73.230. The Bellingham police officer responsible for making such authorizations that evening considered the 8-page handwritten statement of Carino, discussed the case with the investigating officers and, after consulting with the Bellingham chief of police and Whatcom County prosecuting attorney's staff, issued an authorization for the interception. The authorization names "George Kadoranian" as the person believed to be involved in the crime of unlawful manufacture, delivery, sale, or possession of controlled substances.
When electronically intercepting telephone calls, the Bellingham Police Department's practice is to begin the tape recording before the number is dialed. The stated reason for this is to record the call without the knowledge of the nonconsenting party and to comply with a statutory mandate that the recording be free of editing and alteration. 1
In the instance involved here, police began recording just before the number was dialed. George Kadoranian's home telephone number was dialed and after two rings his daughter, Alice Kadoranian, answered the telephone. There is no indication that she knew to whom she was talking. The entire conversation, which is the basis of her damage suit, is as follows: 2
Ms. Kadoranian: Hello?
[Carino]: Hi, is your dad there?
Ms. Kadoranian: No he's not, can I take a message?
[Carino]: Uh, it's, uh, tell him I had problems with the car and I'll phone him back later.
Ms. Kadoranian: You have ...
[Carino]: Problems with the car, and I'll phone back later.
Ms. Kadoranian: All right.
[Carino]: OK.
Ms. Kadoranian: OK. Bye.
[Carino]: Bye.
George Kadoranian was eventually contacted and ultimately convicted of a drug charge in the Superior Court of the State of Washington for Whatcom County. While her father's criminal action was pending, Ms. Kadoranian filed this class action 3 against the Bellingham Police Department, the Northwest Regional Task Force and the State of Washington, 4 asking for statutory exemplary damages 5 of $25,000 for herself and for each of the members of the class. The class Ms. Kadoranian purported to represent includes all persons whose telephonic communications are inadvertently intercepted by police officers acting under authorizations issued pursuant to RCW 9.73.230, a part of the privacy act. The proposed class would include those responding whenever a wrong number is reached, long distance telephone operators placing operator-assisted calls, and receptionists answering telephone calls to their employers' businesses.
The initial complaint apparently alleged only a violation of the statute. Then, when her father was unsuccessful in challenging the constitutionality of the privacy act in his criminal case, Ms. Kadoranian amended her complaint to allege that the privacy act violated article 1, section 7 of our state constitution. Ms. Kadoranian does not ask for declaratory relief. Instead, she seeks monetary damages.
Both Ms. Kadoranian and the Bellingham Police Department moved for summary judgment in the superior court. The police department's motion was granted and Ms. Kadoranian's action was dismissed.
On appeal, Ms. Kadoranian's case was certified to this court by the Court of Appeals and this court accepted certification. 6 We affirm the trial court.
Two issues are determinative.
ISSUE ONE. Does public policy or the language of this state's privacy act, RCW Ch. 9.73, limit electronic interception of telephone calls by law enforcement officers to points within the state of Washington?
ISSUE TWO. Is a person whose inconsequential communication is inadvertently intercepted and recorded pursuant to a valid authorization entitled to damages under the exemplary damages provision of the privacy act?
ISSUE ONE.
CONCLUSION. The privacy act does not limit the territory in which telephone calls may be intercepted, as long as the interception occurs in Washington. Because the interception in this case occurred in this state, Washington law determines the lawfulness of the interception.
Our state's privacy act (the Act), RCW Ch. 9.73, generally prohibits interception, transmission or recording of any "private communication" or "private conversation" without the consent of all parties involved in the communication. 7
There are a number of statutory exceptions to this general prohibition. 8 It is only the "one-party consent/no warrant" exception, however, that is at issue in this case. This particular exception was created by 1989 amendments to the Act. The amendments, which are part of the Omnibus Alcohol and Controlled Substances Act of 1989, 9 create a special procedure for the interception of conversations when the interception is part of a bona fide criminal investigation involving the manufacture, delivery or sale of illegal drugs. Such interceptions may be accomplished without prior judicial approval, if they are based on the consent of one of the parties to the conversation and if designated procedures are followed. 10
These statutory procedures permit law enforcement officers to initially determine probable cause and then to authorize interception and recording of telephone calls.
The statute provides that authorizations issued pursuant to the Act are "valid in all jurisdictions within Washington state". 11 Ms. Kadoranian argues that this phrase means police may not lawfully intercept telephone conversations unless they are initiated and received within the territorial boundaries of the state of Washington. That is incorrect.
The goal of statutory construction is, of course, to give effect to the intent of the Legislature. 12 Where the meaning of the statute is clear from the language of the statute alone, there is no room for judicial interpretation. 13 If the language of the statute is amenable to more than one construction, however, resort to legislative history and other aids to construction is appropriate. 14 Since it is possible that this statutory section could be construed in more than one way, we look to the purpose and history of the statute for guidance in interpreting the language used.
The intent and purpose of the 1989 amendments to the privacy act are to permit the interception of conversations involving illegal drug transactions
in certain circumstances without prior judicial approval in order to protect the life and safety of law enforcement personnel and to enhance prosecution of drug offenses, ...
The Final Legislative Report explains that the amendment to the Act is intended "to give law enforcement agencies greater authority to intercept, transmit or record conversations that involve illegal drug activities." (Italics ours.) 15
In light of the express legislative intent and history of the 1989 amendment to the Act, we interpret the language that an authorization "is valid in all jurisdictions within Washington state" to mean that the authorization may be used to justify an interception and to serve as a basis for admission of lawfully obtained evidence in any court in this state. This language does not limit the territory within which the call may be made, but rather clarifies the authority of law enforcement officers to act outside their own particular jurisdictions in certain drug investigations.
In the case before us, the police issued and applied the authorization within their own jurisdiction, the city of Bellingham. Accordingly, this section of the statute is not implicated.
Ms. Kadoranian also urges us to hold that the interception of the telephone call made to Canada was unlawful because it violated Canadian law. Generally, court...
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