State v. Christensen

• Decision Date: 09 December 2004
• Docket Number: No. 74839-0.,74839-0.
• Citation: 153 Wash.2d 186,102 P.3d 789
• Parties: STATE of Washington, Respondent, v. Oliver C. CHRISTENSEN, Petitioner.
• Court: Washington Supreme Court

102 P.3d 789

153 Wash.2d 186

STATE of Washington, Respondent, v. Oliver C. CHRISTENSEN, Petitioner.

No. 74839-0.

Supreme Court of Washington, En Banc.

Argued October 19, 2004.

Decided December 9, 2004.

As Amended on Denial of Reconsideration January 31, 2005.

Michael John Tario, Tario & Associates PS, Bellingham, for Petitioner.

Randall Keenan Gaylord, Friday Harbor, Philip James Buri, Buri Funston PLLC, Bellingham, for Respondent.

Douglas B. Klunder, Seattle, for Amicus Curiae American Civil Liberties Union.

CHAMBERS, J.

A mother, using the speakerphone function of the family's cordless telephone system, surreptitiously listened to a conversation between her daughter and her daughter's boyfriend in which a crime was discussed. The mother was permitted to testify against the boyfriend at his trial about what she overheard. We conclude that under the Washington privacy act, the conversation in question was a private one and the base unit of the cordless telephone was a device designed to transmit. We reverse.

STATEMENT OF THE CASE

On October 24, 2000, two young men approached an elderly woman walking down the street in Friday Harbor, Washington. One of the men grabbed the woman's purse and, after a struggle in which the woman fell and broke her glasses, the young men fled with the purse.

San Juan County Sheriff Bill Cumming suspected Oliver Christensen, a local 17- year-old, of involvement in the robbery. He believed that evidence of the robbery might be found in the house of Christensen's then-girl friend, Lacey Dixon. Sheriff Cumming contacted Mrs. Dixon, Lacey's mother, and obtained her consent to search her home for evidence of the crime. He found no evidence in Mrs. Dixon's home, but asked her to keep a lookout for any evidence of the crime that might surface. Christensen later telephoned Lacey. When he called, Mrs. Dixon answered the telephone. She handed the cordless handset to her daughter, who took it upstairs into her bedroom and closed the door. Mrs. Dixon activated the speakerphone function of the cordless telephone system by pressing a button on the base unit. Mrs. Dixon took notes from the conversation she overheard, in which Christensen acknowledged to Lacey that he was aware that police suspected him of the robbery and that he knew the whereabouts of the purse, but not that he had taken part in the robbery. Neither Christensen nor Lacey knew of, or consented to, Mrs. Dixon listening to their conversation.

Over Christensen's objection at trial, Mrs. Dixon testified as to the substance of the conversation she overheard.¹ In addition to Mrs. Dixon, the State offered the testimony of four other witnesses, only one of whom could identify Christensen as a participant in the robbery. That witness, an acquaintance of Christensen's, had agreed to testify for the State on the same day he agreed to plead guilty to the same robbery. He testified that on the night of the robbery, he had been high on methamphetamine during a meth binge but remembered Christensen being involved in the robbery. Christensen was convicted of second degree robbery.

The Court of Appeals affirmed the trial court's decision to admit Mrs. Dixon's testimony. State v. Christensen, 119 Wash.App. 74, 79 P.3d 12 (2003). We granted review, State v. Christensen, 151 Wash.2d 1031, 95 P.3d 758 (2004).

DISCUSSION

We must decide whether this state's privacy act was violated when Mrs. Dixon listened to the conversation between Christensen and Lacey on the base unit of the cordless telephone without their permission. The act provides that it is unlawful for any individual to "intercept, or record any:"

[p]rivate communication transmitted by telephone, telegraph, radio, or other device between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication.

RCW 9.73.030(1)(a) (emphasis added). Evidence obtained in violation of the act is inadmissible for any purpose at trial. RCW 9.73.050.

There are essentially four prongs in analyzing alleged violations of the privacy act. There must have been (1) a private communication transmitted by a device, which was (2) intercepted by use of (3) a device designed to record and/or transmit, (4) without the consent of all parties to the private communication. RCW 9.73.030.

The parties do not dispute that Mrs. Dixon's act of listening in on the base unit of the cordless telephone system was an "intercept" under the act. There is also no dispute that the intercept was accomplished without the consent of "all the participants." Thus, the only remaining issues are whether the conversation was a private one and whether the base unit of the cordless telephone was a device designed to record and/or transmit.

PRIVATE COMMUNICATIONS

Generally, the question of whether a particular communication is private is a question of fact, but may be decided as a question of law where the facts are undisputed. State v. Townsend, 147 Wash.2d 666, 673, 57 P.3d 255 (2002) (citing State v. Clark, 129 Wash.2d 211, 225, 916 P.2d 384 (1996)). The facts are not in dispute.

Christensen argues that based on their reasonable expectations and subjective intent, the conversation between him and Lacey was private. The State suggests, however, that because Lacey and Christensen knew that it was possible that their calls would be monitored, their expectation of privacy was not reasonable despite their subjective intent.

While the term "private" is not defined in the act, this court has adopted the dictionary definition: "`belonging to one's self ... secret ... intended only for the persons involved (a conversation) ... holding a confidential relationship to something ... a secret message: a private communication ... secretly: not open or in public.'" WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1969), quoted in Townsend, 147 Wash.2d at 673,

57 P.3d 255.

A communication is private (1) when parties manifest a subjective intention that it be private and (2) where that expectation is reasonable. Townsend, 147 Wash.2d at 673, 57 P.3d 255. Factors bearing on the reasonableness of the privacy expectation include the duration and subject matter of the communication, the location of the communication and the potential presence of third parties, and the role of the nonconsenting party and his or her relationship to the consenting party. Clark, 129 Wash.2d at 225-27, 916 P.2d 384. We have held that parties to a conversation on a cordless telephone do not have a lowered expectation of privacy. State v. Faford, 128 Wash.2d 476, 485, 910 P.2d 447 (1996).

Christensen and Lacey subjectively intended to have a private conversation. Christensen manifested this intent by asking to speak to his girl friend. Lacey manifested this intent by taking the cordless telephone from her mother, going upstairs to her bedroom, and closing the door.

The expectation of privacy was reasonable. The State contends that the parties' expectation of privacy was not reasonable because they should have known that someone could have been listening in to their call. We have repeatedly held that the mere possibility that intrusion on otherwise private activities is technologically feasible does not strip citizens of their privacy rights. Faford, 128 Wash.2d at 485, 910 P.2d 447 (citing State v. Young, 123 Wash.2d 173, 186, 867 P.2d 593 (1994); State v. Myrick, 102 Wash.2d 506, 513-14, 688 P.2d 151 (1984)).

The State also suggests that there should be an implied exception to the act in the case of minor children, arguing that children have a reduced expectation of privacy because parents have an absolute right to monitor all telephone calls coming into the family home. The federal wiretap statute, which makes interception of communications legal where one party consents, has been interpreted to permit parents acting to protect the welfare of a child, to consent vicariously for their child to the recording of their child's conversations. See, e.g., Pollock v. Pollock, 154 F.3d 601, 602 (6th Cir.1998)

; Scheib v. Grant, 22 F.3d 149, 154 (7th Cir.1994); Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir.1991); Janecka v. Franklin, 843 F.2d 110, 110 (2d Cir.1988); Campbell v. Price, 2 F.Supp.2d 1186, 1191-92 (E.D.Ark.1998). The Washington act, with its all-party consent requirement, contains no such parental exception and no Washington court has ever implied such an exception. We decline to do so now.

The State also alleges that because Mrs. Dixon had listened in to her daughter's conversations in the past, reasonable expectations of privacy had been destroyed. There is no evidence in the record, however, that either Lacey or Christensen was aware of Mrs. Dixon's earlier monitoring. Furthermore, since it is Christensen's expectation of privacy with which we are concerned, even if Lacey did have a lowered expectation of privacy based on the nature of the relationship with her mother, it cannot reasonably be said that Christensen's expectation was similarly lowered. The parties' conversation was private.

DEVICE DESIGNED TO TRANSMIT

There is no indication that the speakerphone function on the base unit of a cordless telephone system is a "device designed to record." We must, then, decide whether the base unit of a cordless telephone system is within the category of "any device" designed to transmit, a question of first impression in this court. The interpretation of a statute is a question of law and subject to de novo review. Rest. Dev., Inc. v. Cananwill, Inc., 150 Wash.2d 674, 681, 80 P.3d 598 (2003).

In interpreting a statute, this court's primary obligation is to give effect to the legislature's intent. Id. This inquiry always begins with the plain language of the statute. Id. at 681-82, 80 P.3d 598. The court must not add words where the...