State v. D.J.W.
| Decision Date | 07 November 1994 |
| Docket Number | 31212-0-,31716-4-,31679-6-,31564-1-,31232-4-,Nos. 31088-7-,31421-1-,32151-0-I and 32193-5-I,31364-9-,s. 31088-7- |
| Citation | 76 Wn.App. 135,882 P.2d 1199 |
| Court | Washington Court of Appeals |
| Parties | The STATE of Washington, Respondent, v. D.J.W., Appellant. The STATE of Washington, Respondent, v. A.G.E., Appellant. The STATE of Washington, Respondent, v. C.R.G., Appellant. The STATE of Washington, Respondent, v. Keith Deloyne PIGGEE, Appellant. The STATE of Washington, Respondent, v. Kevin GILES, Appellant. The STATE of Washington, Respondent, v. T.L.C., Appellant. The STATE of Washington, Respondent, v. Darrell BECK, Appellant. The STATE of Washington, Respondent, v. Darryl Wayne HARRIS, Appellant. The STATE of Washington, Respondent, v. D.A.J., Appellant. The STATE of Washington, Respondent, v. L.L.F., Appellant. |
Neal Philip, Appellate Defender, Seattle, for appellants.
James Whisman, Ryan Ebesagawa, Deputy Pros. Attys., Seattle, for respondents.
The appellants appeal their convictions of delivery of cocaine and claim the trial court erred by denying their motions to suppress the evidence obtained from the interception and recording of conversations between them and an undercover cooperating witness. The appellants claim the recordings violated Washington's privacy act, RCW 9.73 (Privacy Act), and their rights under Const. art. 1, § 7. We affirm the convictions, holding that the conversations were not private and were therefore outside the purview of the Privacy Act, such that recording them could not have violated the Act. Further, assuming the conversations were private, reversal is not required because the application and authorization to record complied with the requirements of the Privacy Act. We also hold that the recordings did not deprive the appellants of their rights under Const. art. 1, § 7 because there is no constitutional expectation of privacy in a conversation where, as here, one party consents to the recording of the conversation.
Each of the appellants was arrested during Operation Hardfall, an undercover narcotics investigation conducted jointly by the Federal Bureau of Investigation (FBI) and the Seattle Police Department (SPD). A key player in the investigation was Kevin Glass, a cooperating witness who was also central to the success of a similar investigation in San Diego.
At the beginning of Operation Hardfall, SPD Commander William D. Bryant submitted an application to the court seeking authorization pursuant to RCW 9.73.090 to record conversations between Glass, who consented to the recording, and unidentified nonconsenting parties. The application stated that Glass, a former gang member familiar with street drug buys, would drive through specific areas of King County in an automobile outfitted with audio and visual recording equipment. The equipment would be positioned to record conversations between Glass and persons who either stood within 10 feet of the front driver and passenger windows of the automobile or sat in the front seat. The areas into which Glass was to drive are recognized high narcotics trafficking areas known as stay out of drug areas or "SODAs".
The superior court issued an order authorizing the recordings. The order authorized the FBI and SPD to intercept and record "the communications or conversations of street traffickers dealing drugs in high narcotics trafficking areas of Seattle and unincorporated King County," concerning the commission of drug offenses as follows:
in a 1976 Cadillac Seville, WA license plate IXX 155, and a 1985 Oldsmobile Cutlass, WA license plate 535 BRZ (maps attached hereto) or within 10 feet of the driver's or front passenger's door, when the vehicle is located in any of the high narcotics trafficking areas described in the application or within 1,000 feet of their boundaries, or any place where the vehicle is driven at the direction of the non-consenting party to the communication or conversation.
The equipment in Glass's automobile recorded each appellant engaging in drug transactions with Glass during Operation Hardfall. Each appellant was arrested and charged with delivery of cocaine. They all sought to suppress the evidence obtained through the recordings, and in each case the court denied the motion. Each appellant was found guilty of the charged crime and sentenced accordingly. They appeal and claim the trial court erred by denying their motions to suppress because the recording of their conversations with Glass violated the Privacy Act and deprived them of their rights under Const. art. 1, § 7.
Subject to exceptions, the Privacy Act makes it unlawful for private and state governmental entities to intercept or record any "[p]rivate conversation, by any device electronic or otherwise designed to record or transmit such conversation regardless how the device is powered or actuated without first obtaining the consent of all the persons engaged in the conversation." RCW 9.73.030(1)(b).
The threshold question presented is whether the Privacy Act is even implicated in the instant case. The Act only regulates the recording of private conversations. If the conversations between the appellants and Glass were not private, then the recording fell outside the purview of the statute and compliance with its dictates was not required.
Determining whether a particular conversation is private is a question of fact. Kadoranian v. Bellingham Police Dep't, 119 Wash.2d 178, 190, 829 P.2d 1061 (1992); State v. Flora, 68 Wash.App. 802, 806, 845 P.2d 1355 (1992). However, where the pertinent facts are undisputed and reasonable minds could not differ on the subject, the issue of whether a particular conversation is private may be determined as a matter of law. Kadoranian, 119 Wash.2d at 190, 829 P.2d 1061; State v. Flora, 68 Wash.App. at 806, 845 P.2d 1355. We find that in the instant case, reasonable minds could not differ and, as a matter of law, the conversations at issue were not private.
The Privacy Act does not define "private conversation". However, in Kadoranian, the court set forth the analysis for determining whether a conversation should be deemed private:
Cases interpreting this phrase hold that the term "private conversation" is to be given its ordinary and usual meaning. Quoting from Webster's Third New International Dictionary (1969), the court in State v. Forrester, 21 Wash.App. 855, 861, 587 P.2d 179 (1978), review denied, 92 Wash.2d 1006 (1979), interpreted the word "private" as:
"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."
Forrester then goes on to hold as follows:
To determine whether or not a telephone conversation is private, the court must consider the intent or reasonable expectations of the participants as manifested by the facts and circumstances of each case.
Forrester, 21 Wash.App. at 861, 587 P.2d 179.
(Footnote omitted.) Kadoranian, 119 Wash.2d at 189-90, 829 P.2d 1061.
Under the foregoing analysis, the conversations between the appellants and the cooperating witness were not private. The appellants were vendors of merchandise selling their wares on a public street to anyone who wished to be a customer. Just as a clerk in a store would be willing to engage in a conversation about a product with any customer who happened by, so did the appellants manifest a willingness to engage in a conversation with any prospective buyer. It is reasonable to conclude that their conversations with Glass were practically identical in substance to those between them and any other purchaser with whom they transacted business. The conversations, then, could not have been "secret" or intended only for the ears of the individual appellants and Glass, because the identity of the person with whom the appellants were conversing during any given conversation was not significant. 1
We find the situation here similar to that in Kadoranian, where the police intercepted a brief telephone conversation between the plaintiff and a police informant who called to speak with the plaintiff's father, a police suspect. The conversation consisted of the daughter telling the informant her father was not home. In rejecting the daughter's argument that the interception of the conversation violated the Privacy Act, the court stated:
When Ms. Kadoranian answered the home telephone, there is no indication she knew who the caller was. She gave general information, without requiring identification from the caller and without asking the caller's reason for wanting to talk to her father. There is no reason to believe that Ms. Kadoranian would have withheld this information from any caller. It does not appear that Ms. Kadoranian intended to keep the information (the fact that her father was not home) "secret" or that she had any expectation that her conversation was private.
Kadoranian, 119 Wash.2d at 190, 829 P.2d 1061.
In the instant case, there is no reason to believe the appellants would have withheld any information they gave Glass, including the fact that they had cocaine to sell, from any other prospective buyer. There is no indication that any of the appellants intended to keep this information from anyone other than, of course, the police. A desire to conceal one's conversation from the police is not enough to make that conversation private. We find no indication that the appellants had any expectation of privacy in their conversations with Glass. 2
In sum, giving the term "private conversation" its ordinary and usual meaning, we conclude that the conversations between the appellants and Glass were not private. Consequently, recording the conversations did not violate the Privacy Act because the Act applies only to private conversations.
However, assuming the conversations were...
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