State v. Faford
| Decision Date | 01 February 1996 |
| Docket Number | 61897-6 and 61898-4,Nos. 61896-8,s. 61896-8 |
| Citation | 910 P.2d 447,128 Wn.2d 476 |
| Court | Washington Supreme Court |
| Parties | , 64 USLW 2517 The STATE of Washington, Respondent, v. Robert Felix FAFORD, Appellant. The STATE of Washington, Respondent, v. Lisa M. FAFORD, Appellant. The STATE of Washington, Respondent, v. Bryan John CASKEY, Appellant. |
Gene M. Grantham, Seattle, for appellant.
Gary P. Burleson, Mason County Prosecutor, Amber Finlay, Deputy, Reinhold P. Schuetz, Deputy Shelton, Randall K. Gaylord, San Juan County Prosecutor, Charles Z. Silverman, Deputy, Friday Harbor, for respondent.
Wayne C. Fields eavesdropped on his neighbors' telephone conversations twenty-four hours a day, seven days a week over several months. Had he used an electronic eavesdropping device to tap a landline to a conventional telephone, Washington's privacy act (RCW 9.73) would have undoubtedly prohibited Fields' private surveillance activities. Like many Washington citizens, however, the targeted neighbors were speaking on a cordless telephone, not a conventional telephone. Fields purchased a police scanner specifically to eavesdrop on the radio portion of those cordless telephone conversations and then related their substance to the police. A trial court decided the privacy act does not apply to prohibit scanner monitoring of cordless telephone calls and proceeded to admit evidence from both the cordless telephone conversations and a subsequent, warrantless police search based on that information. We reverse and remand.
The parties do not dispute the trial court's findings of fact. In 1993, the owner of a police scanner, eavesdropping on neighborhood cordless telephone conversations, overheard Robert Faford, Lisa Faford, Bryan Caskey (Defendants) and Gale Faford disparaging their neighbor, Wayne C. Fields. Learning of these conversations, Fields borrowed the scanner and later purchased his own to monitor Defendants' cordless telephone calls twenty-four hours a day, seven days a week. In particular, Fields listened on the scanner to Defendants discussing a marijuana growing operation in their home. He also observed Defendants going in and out of a shed behind their home and transporting white bags similar to nursery bags; he soon learned over the scanner of Defendants' decision to block this view by moving a trailer in front of their home.
Throughout April and May 1993, Fields made frequent, anonymous telephone reports to various law enforcement agencies. Explaining his scanner monitoring of Defendants' cordless telephone, Fields related specific information about the growing operation, such as the number of lights and plants, as well as his visual observations. None of the agencies expressed any interest until a May 13, 1993, report concerning Defendants' plans to move the plants on May 15, 1993, to another location.
After receiving the address from Fields, two detectives from WESTNET, a multi-unit drug enforcement task force, visited Defendants' residence for a "knock and talk." When Robert Faford answered the door, one officer explained the police investigation, including some of the detailed information received from Fields, and requested permission to remove the operation from the growing shed. When Faford asked the consequences of his consent, the officer described the outcome of a knock and talk: in exchange for no immediate arrest, the police would search, remove plants and equipment, and send a report to the prosecutor. The officers did not Mirandize Faford, obtain a written consent to search prior to entering any premises, or specifically inform him of his right not to consent.
After some discussion, Faford led the officers through the home to the growing shed, unlocked the door, and allowed them to enter. The officers photographed the growing operation, and a WESTNET truck later removed the plants and equipment. Following the search, Faford, a thirty-nine-year-old high school graduate with a fourteen-year work history, read and signed a written consent to search form. On May 20, 1993, police returned to Defendants' home with a search warrant and seized additional evidence.
The three Defendants and Gale Faford were charged with cultivating marijuana and conspiracy to cultivate marijuana. Consolidating the four cases for pretrial rulings, the trial court denied their motion to suppress the evidence derived from the scanned telephone conversations and ensuing searches. A jury acquitted Gale Faford on one charge and, deadlocked on the second, later dismissed it. A jury convicted Lisa Faford as charged; the trial court convicted Robert Faford and Brian Caskey as charged. Defendants appealed to the Court of Appeals. This court granted direct review and consolidated the cases.
Defendants claim the admission of evidence from the intercepted cordless telephone conversations as well as evidence obtained in the subsequent police search violated the privacy act and the Washington Constitution, Article I, Section 7. As we resolve the case on statutory grounds, we need not reach Defendants' constitutional arguments. We further refuse to consider Lisa Faford's separate contention that the trial court erred by failing to reconcile her twelve-month sentence for the unranked crime of conspiracy to cultivate marijuana with her three-month sentence for the ranked, completed crime. Because her conspiracy sentence falls within the Sentencing Reform Act of 1981 range of zero to twelve months for unranked crimes and she raises no procedural challenges, Lisa Faford's sentence is not appealable. RCW 9.94A.120(6); RCW 9.94A.370(1); State v. Mail, 121 Wash.2d 707, 710, 854 P.2d 1042 (1993).
Washington's privacy act is one of the most restrictive in the nation. State v. O'Neill, 103 Wash.2d 853, 878, 700 P.2d 711 (1985) (Dore, J., concurring in part, dissenting in part). The Act prohibits interception or recording of any:
Private 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).
Although this court has long recognized a statutory privacy interest attached to conventional telephone conversations, the privacy protection afforded cordless telephone conversations is a matter of first impression in Washington. See State v. Gunwall, 106 Wash.2d 54, 66, 720 P.2d 808, 76 A.L.R.4th 517 (1986). In appearance and function, a cordless telephone both resembles and differs from a conventional telephone. See Robert A. Crook, Sorry, Wrong Number: The Effect of Telephone Technology on Privacy Rights, 26 Wake Forest L.Rev. 669, 687 (1991). The cordless telephone consists of a mobile receiver with an antenna and a base unit attached to conventional telephone landlines. Crook, supra at 687. In a cordless telephone call, the mobile receiver operates as a two-way radio, transmitting radio waves to the mobile receiver, which then sends those signals along landlines to the recipient. Crook, supra at 687.
The radio wave portion of a cordless telephone call may be intercepted by another radio, including another cordless telephone or a police scanner, within the receiver's range and tuned to the same frequency. The trial court here determined scanner interception of a cordless telephone call did not constitute the type of interception prohibited by the Privacy Act because a scanner is not a device "designed to record or transmit." Mem.Op. of the Court at 8 (Robert Felix Faford, Feb. 28, 1994); see RCW 9.73.030(1)(a). We disagree.
Because the act does not define "transmit," the trial court properly sought the term's ordinary and usual meaning from dictionary definitions. See Kadoranian v. Bellingham Police Dep't, 119 Wash.2d 178, 192, 829 P.2d 1061 (1992). The trial court picked out two definitions from Webster's Ninth New Collegiate Dictionary: " 'to send or convey from one person or place to another' " and " 'to send out (a signal) either by radio waves or over a wire.' " Mem.Op. at 9. The court decided no transmission occurred because the scanner did not convey elsewhere.
Nowhere does the statute imply a radio interception demands a second conveyance to qualify as a transmission. Rather, the trial court's decision defeats the plain language of the statute explicitly protecting radio waves: other than by another radio, how would one intercept radio waves? Furthermore, a scanner operates similarly to an electronic listening device: the transmission occurs in the conversion of inaudible sound waves and their emission as audible sound. See United States v. Smith, 978 F.2d 171, 175 n. 5 (5th Cir.1992), cert. denied, 507 U.S. 999, 113 S.Ct. 1620, 123 L.Ed.2d 179 (1993).
We reject the State's claim the trial court's second conveyance requirement finds endorsement in two Court of Appeals' decisions, State v. Bonilla, 23 Wash.App. 869, 598 P.2d 783 (1979), and State v. Corliss, 67 Wash.App. 708, 838 P.2d 1149 (1992), aff'd, 123 Wash.2d 656, 870 P.2d 317 (1994). Nor do these cases support the State's alternative theory that the act prohibits interception only by an "active" device, apparently such as an electronic eavesdropping device targeting a specific telephone, not a "passive" device, such as a scanner capable of receiving any radio waves in its range. Indeed, Bonilla and Corliss did not address the definition of "transmit" or type of device at all, but rather turned on the lack of a "device." Where police listened on an extension telephone to a defendant's call to the police dispatcher, the Bonilla court held the privacy act did not apply, in part because an extension telephone did not constitute a separate recording or transmitting device. Bonil...
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