Lewis v. State, Dept. of Licensing
| Decision Date | 03 August 2006 |
| Docket Number | No. 77110-3.,No. 76824-2.,76824-2.,77110-3. |
| Citation | 157 Wn.2d 446,139 P.3d 1078 |
| Parties | Steven A. LEWIS, Petitioner, v. STATE of Washington, DEPARTMENT OF LICENSING, Respondent. State of Washington, Respondent, v. Kenneth D. Higgins, Petitioner. City of Auburn, Respondent, v. Edward Kelly, Petitioner. City of Auburn, Respondent, v. Andrew DeWaele, Petitioner. |
| Court | Washington Supreme Court |
Ryan Boyd Robertson, Attorney at Law, Burien, Matthew Jameson Rusnak, Law Offices of Matthew J Rusnak, Auburn, Andrea King Robertson, Francisco A. Duarte, Fox Bowman Duarte, Bellevue, Dawn Marie Bettinger, The Law Offices of James Egan, Seattle, for Petitioner/Appellant.
Masako Kanazawa, Attorney General's Office, Licensing Division, Susan K. Storey, King County Prosecutor's Office, Seattle, Susan Sackett DanPullo, Office of the Attorney General, Olympia, Daniel Brian Heid, City of Auburn, Auburn, Jay Douglas Geck, Office of the Attorney General, Olympia, for Appellee/Respondent.
Nanacy Lynn Talner, Aaron Hugh Caplan, ACLU of Washington, Seattle, for Amicus Curiae American Civil Liberties Union.
¶ 1 In these four consolidated cases, the petitioners (drivers), who were all charged with driving under the influence (DUI), challenge two Court of Appeals decisions holding that recordings made during their traffic stops were admissible. The drivers argue that the police officers who stopped them did not properly inform the drivers that the officers were recording their conversations. We review whether Washington's privacy act, chapter 9.73 RCW, protects conversations that occur between police officers and detainees during traffic stops and, if so, what remedy should be applied when a police officer fails to properly inform a detainee that the officer is recording his or her conversation.
¶ 2 Although we conclude that conversations between traffic stop detainees and police officers are not private conversations, we hold that the privacy act requires that officers inform detainees that the officers are recording their conversation. Because three of the four officers failed to properly inform the drivers in these cases, we hold that those officers violated the privacy act and that the proper remedy for those violations is the exclusion of the recordings. We remand Lewis, Kelly, and DeWaele for hearings without consideration of the improper recordings. We also remand Higgins for a hearing but hold that the recording in that case is admissible because the officer properly informed Higgins that he was being recorded.
¶ 3 On December 12, 2002, at approximately 1:00 a.m., Auburn Police Officer Douglas Faini witnessed Steven A. Lewis' truck travel in excess of the speed limit and turn without signaling.1 After the truck turned into a parking lot, the officer saw Lewis throw a beer can out of the window before he stopped the truck. Officer Faini, who was in uniform and driving a patrol car, approached Lewis' truck. A video camera mounted in the officer's patrol car made a sound and video recording of their conversation.
¶ 4 Officer Faini asked Lewis several questions, to which Lewis did not respond. The officer noted that "Lewis' eyes appeared bloodshot and watery" and that he could "smell the odor of intoxicating liquor emanating from the vehicle." Administrative Record (AR) at 12. Officer Faini called for additional officers to assist him with Lewis, who would not exit his truck. Another officer used a taser weapon on Lewis in order to get him out of the truck. The officers handcuffed Lewis and placed him in the patrol car. Officer Faini arrested Lewis for DUI and "refusal to cooperate." AR at 12-13. At the police station, Officer Faini read Lewis the statutory implied consent warnings, but Lewis refused to take a breath test.2
¶ 5 Following this incident, the Department of Licensing (DOL) revoked Lewis' driver's license for two years. Lewis contested the revocation at a DOL administrative hearing. At the hearing, Lewis offered the video and audio recording of the traffic stop into evidence. Lewis then moved to suppress Officer Faini's police report because the officer had failed to adequately inform Lewis that the officer was recording the traffic stop as required by Washington's privacy act.
¶ 6 The parties dispute whether Officer Faini did advise Lewis that he was being recorded. Officer Faini's police report does not state that he advised Lewis that he was being recorded. The recording of the incident is garbled at the point where Officer Faini first approached Lewis' truck. Although the parties agree that the officer said the word "recorded," the parties dispute whether the word was part of a warning that Lewis was being recorded. Pet'r's Suppl. Br. (Lewis) at 15.
¶ 7 The hearing officer denied the suppression motion and upheld Lewis' license revocation, finding that the State did not seek to admit the audio and video evidence and that the officer had informed Lewis that he was recording their conversation. Lewis appealed DOL's decision to King County Superior Court, which reversed the revocation based on a finding that substantial evidence did not support that the officer informed Lewis of the recording. The court held that this failure violated the privacy act and suppressed "any video and audio recording, as well [as] any observations made by the arresting officer." Clerk's Papers (CP) (Lewis) (hereinafter LCP) at 70. The State appealed the decision to the Court of Appeals, which reversed the superior court, holding that traffic stop conversations with a police officer were not private and could be recorded. Lewis v. State, 125 Wash.App. 666, 681-82, 105 P.3d 1029 (2005).
¶ 8 On the evening of October 20, 2001, Washington State Patrol Trooper Cheek began to follow Kenneth D. Higgins' car after witnesses reported him driving erratically. After observing sustained weaving, Trooper Cheek stopped Higgins' car. A video camera mounted in the trooper's patrol car made a sound and video recording of their conversation.
¶ 9 After approaching the driver's side window of Higgins' car, Trooper Cheek told Higgins that he was being "recorded." CP (Higgins) (hereinafter HCP) at 20. Higgins responded to the trooper's questions but refused to participate in a field sobriety test. Trooper Cheek arrested Higgins for DUI. After placing Higgins in the patrol car, Trooper Cheek read Higgins his Miranda3 rights and stated that he was reminding him that he was being "recorded." HCP at 3.
¶ 10 At a pretrial hearing in King County District Court, Higgins moved to "suppress the videotape and all evidence gathered during the use of the videotape" under the privacy act. HCP at 5. Higgins argued that the privacy act requires police officers to specifically inform traffic stop detainees that "a sound recording is being made," rather than merely a "recording." HCP at 8. The district court agreed and ordered the suppression of the recording and all other evidence related to Higgins' traffic stop.
¶ 11 The State appealed to the King County Superior Court, which reversed the district court's suppression order and held that traffic stop conversations are not private, or alternatively, that Trooper Cheek adequately informed Higgins that he was being recorded. Higgins appealed the decision to the Court of Appeals, which affirmed the superior court, and concluded that an officer need not use the word "sound" when advising a detainee that he is being recorded. Lewis, 125 Wash.App. at 684, 105 P.3d 1029.4
¶ 12 On November 15, 2002, at approximately 11:30 p.m., a uniformed Auburn Police Officer witnessed Edward Kelly's car fail to yield and nearly collide with another car after entering traffic. The officer pulled in behind Kelly and activated his lights. Kelly continued driving for several blocks and then stopped in the far lane of a busy road. A video camera mounted in the officer's patrol car made an audio and video recording of their conversation.
¶ 13 The officer observed that Kelly had a passenger in his car and requested back-up. After approaching the car, the officer noted that Kelly's eyes were bloodshot and watery. The officer also smelled a strong and obvious odor of intoxicants. The officer asked Kelly if he had been drinking and Kelly replied that he had had a few drinks. The officer asked if Kelly's ability to drive was impaired by the alcohol, and he replied that it was not. Kelly agreed to participate in several field sobriety tests but performed poorly. The officer advised Kelly of his Miranda rights and arrested him for DUI. At the station, the officer read Kelly the implied consent warnings, but Kelly refused to sign them or take a breath test.
¶ 14 At a pretrial hearing in the Auburn Municipal Court, the city stipulated that the officer did not warn Kelly that he was being recorded and that the recording was not admissible. Defense counsel moved to suppress all evidence related to the videotape, including the officer's observations. The municipal court granted the motion, dismissed the evidence, and granted a subsequent motion to dismiss the city's case. The King County Superior Court affirmed the suppression of the evidence and the dismissal of the city's case. The Court of Appeals reversed holding that the conversations were not private for purposes of the privacy act. City of Auburn v. Kelly, 127 Wash.App. 54, 61, 111 P.3d 1213 (2005).
¶ 15 On March 30, 2002, at approximately 2:00 a.m., Officer Faini of the Auburn Police Department witnessed Andrew DeWaele's truck traveling at a high rate of speed. The officer paced the truck for approximately one mile and noted that the truck was traveling consistently at a rate of over 80 miles per hour, when the posted speed limit was 60 miles per hour. The officer also noticed the truck drifting back and...
To continue reading
Request your trial
-
State v. Kipp
...of third parties, and (3) the nonconsenting party's role and his relationship to the consenting party. Lewis v. Dep't of Licensing, 157 Wash.2d 446, 459, 139 P.3d 1078 (2006). No one factor is determinative because the privacy analysis turns on “the facts and circumstances of each case.” St......
-
State v. Kipp
...of law.” Clark, 129 Wash.2d at 225, 916 P.2d 384 (citing Kadoranian, 119 Wash.2d at 190, 829 P.2d 1061);see Lewis v. Dep't of Licensing, 157 Wash.2d 446, 458, 139 P.3d 1078 (2006); Christensen, 153 Wash.2d at 192, 102 P.3d 789;Townsend, 147 Wash.2d at 673, 57 P.3d 255. Questions of law are ......
-
Dillon v. Seattle Deposition Reporters, LLC, s. 69300–0–1
...to something ... a secret message: a private communication ... secretly: not open or in public.’ ” ” Lewis v. Dep't of Licensing, 157 Wash.2d 446, 458, 139 P.3d 1078 (2006) (alterations in original) (internal quotation marks omitted) (quoting Kadoranian v. Bellingham Police Dep't, 119 Wash.......
-
Dillon v. Seattle Deposition Reporters, LLC
...to something . . . a secret message: a private communication . . . secretly: not open or in public."'" Lewis v. Dep't of Licensing, 157 Wn.2d 446, 458, 139 P.3d 1078(2006) (alterations in original) (internal quotation marks omitted) (quoting Kadoranian v. Bellinqham Police Dep't, 119 Wn.2d ......
-
Survey of Washington Search and Seizure Law: 2013 Update
...requires that the officer inform the individual, on camera, that the conversation is being recorded. Lewis v. State, Dep't of Licensing, 157 Wn.2d 446, 473, 139 P.3d 1078 (2006). Under the Fourth Amendment, a canine sniff does not normally constitute a "search" because "any interest in poss......
-
Table of Cases
...Lewis River Golf, Inc. v. O.M. Scott & Sons, 120 Wn.2d 712, 845 P.2d 987 (1993): 18.2(6), 18.5, 20.8(2) Lewis v. Dep't of Licensing, 157 Wn.2d 446, 139 P.3d 1078 (2006): 21.11(6), 21.12(4) Lewis v. Simpson Timber Co., 145 Wn. App. 302, 189 P.3d 178 (2008): 12.5, 12.7(9), 21.15(2)(d) Lian v.......
-
§ 21.11 Standards of Judicial Review
...in the light most favorable to the prevailing party; it does not permit the court to reweigh the evidence. Lewis v. Dep't of Licensing, 157 Wn.2d 446, 468, 139 P.3d 1078 (2006). It reasonably follows that the court can review factual findings under the substantial evidence standard of revie......
-
§ 21.12 Remedies in Judicial Review Proceedings
...driver that their conversation would be recorded, the remedy is to exclude the conversation from evidence. Lewis v. Dep't of Licensing, 157 Wn.2d 446, 451, 139 P.3d 1078 (2006). The court may also remand to the department for further proceedings. RCW 46.20.308(8). Unlike the APA, the implie......