State v. Fjermestad
| Decision Date | 07 June 1990 |
| Docket Number | No. 56277-6,56277-6 |
| Citation | 114 Wn.2d 828,791 P.2d 897 |
| Parties | STATE of Washington, Respondent, v. Rose Genia FJERMESTAD, Appellant. En Banc |
| Court | Washington Supreme Court |
Knapp, O'Dell & Knapp, Robert A. Lewis, Camas, for appellant.
Arthur D. Curtis, Clark County Prosecutor, Roger A. Bennett, Chief Deputy, Vancouver, for respondent.
This case was certified to this court by the Court of Appeals pursuant to RCW 2.06.030(d) because of its broad public import. The issue presented is whether the use of an electronic body wire by detectives, without court authorization and in violation of Washington's privacy act, RCW 9.73, renders all evidence of the transaction inadmissible and thus mandates dismissal. We hold that it does and reverse the defendant's conviction.
The facts are uncomplicated. The Clark County Sheriff's office conducted a 7-month investigation which was aimed at arresting drug dealers. 1 The operation was code named ROPED, which stands for Round up People Enterprising in Drugs. As part of the investigation, officers involved in the operation were required, as a matter of departmental policy, to wear "body wires" when they came into contact with suspected drug dealers. The purpose of wearing the wire was to ensure officer safety. The sheriff's office did not seek judicial authorization to transmit the conversation between the defendant and the officer. The sheriff's office was aware of the State's privacy act.
The Clark County Sheriff's office received several complaints about suspected drug activity in the Crown Park area of Camas. On April 23, 1987, the defendant was approached by a Clark County detective in this park and asked about the possibility of purchasing some marijuana. The defendant responded by asking the detective how much he was interested in buying. After discussing the matter for a few moments, the defendant and a friend left the park. They returned a short time later, at which time the defendant entered the detective's car and handed him a gram of marijuana in exchange for $10.
During the entire transaction the detective was wearing an electronic transmitter, or body wire. The transmissions were being sent to two other officers who were parked nearby, but out of sight. The transmitter enabled the two officers to hear what was going on in case their assistance was required. The conversation was not taped nor did the listening officers testify at the defendant's trial.
The defendant was charged with delivery of a controlled substance in violation of RCW 69.50.401(a); to wit: marijuana. Prior to a bench trial, the defendant moved to suppress all evidence obtained by police for violation of the privacy act, or alternatively, a dismissal pursuant to CrR 8.3(b) based on claimed misconduct of the police department. The trial court originally denied motions to suppress and to dismiss. After a bench trial, the defendant was convicted.
The defendant petitioned the trial court for reconsideration of the motions to suppress and to dismiss. On reconsideration, the trial court granted the motion to suppress the conversation between the defendant and the officer but denied the motion to dismiss. The bench trial was reopened and the defendant was found guilty based on the officer's visual observations. Judgment and sentence were entered and this appeal followed.
Washington's privacy act, RCW 9.73, at the time of the conduct in question, prohibited the interception or recording of private conversations unless consent was obtained (a) by all the parties involved in the conversation (RCW 9.73.030) or (b) if judicial authorization was obtained (RCW 9.73.040). The statute made any information obtained in violation of RCW 9.73 inadmissible in civil or criminal cases.
The origin of Washington's privacy act dates back to 1909 when the Legislature enacted RCW 9.73.010 and 9.73.020. 2 In its original form, the privacy act made it unlawful to divulge information in regard to telegrams and also made it unlawful to open sealed letters.
In 1967, the Legislature enacted legislation which made it unlawful to electronically eavesdrop on private conversations without the consent of all the parties involved or unless the conversation fell within an enumerated exception. These exceptions specifically include matters involving a danger to human life, arson, riot or national security.
RCW 9.73.040, enacted in 1967, 3 provides a mechanism for obtaining court authorization to intercept private conversations. In order to obtain court authorization in accordance with RCW 9.73.040, the following information must be supplied to a superior court judge upon a verified application of the State Attorney General or a county prosecuting attorney:
(a) There are reasonable grounds to believe that national security is endangered, that a human life is in danger, that arson is about to be committed, or that a riot is about to be committed, and
(b) There are reasonable grounds to believe that evidence will be obtained essential to the protection of national security, the preservation of human life, or the prevention of arson or a riot, and
(c) There are no other means readily available for obtaining such information.
RCW 9.73.040(1). This statute has been referred to as the "no consent" statute since the electronic eavesdropping it permits is not limited to situations where one of the participants to the communication or conversation has consented to the eavesdropping. State v. O'Neill, 103 Wash.2d 853, 863, 700 P.2d 711 (1985).
At the time RCW 9.73.040 was enacted, the Legislature added RCW 9.73.050 4 which deals with admissibility of intercepted communications into evidence. RCW 9.73.050 states:
Any information obtained in violation of RCW 9.73.030 or pursuant to any order issued under the provisions of RCW 9.73.040 shall be inadmissible in any civil or criminal case in all courts of general or limited jurisdiction in this state, except ... in a criminal action in which the defendant is charged with a crime, the commission of which would jeopardize national security.
Under RCW 9.73.090(1) certain emergency response personnel are exempt from the privacy act. For example, the act does not apply to police, fire, emergency medical service, emergency communication centers and poison control centers when they are recording incoming telephone calls. Additionally, police may video tape or record people who are in their custody provided they are informed of such recordings. RCW 9.73.090(1)(a), (b).
Section 2 of RCW 9.73.090, enacted in 1977, 5 is referred to as the "one party consent statute". It allows electronic eavesdropping upon oral communications or conversations when authorized by the court, with the consent of one party to the conversation. O'Neill, at 863, 700 P.2d 711. RCW 9.73.090(2) provides:
It shall not be unlawful for a law enforcement officer acting in the performance of the officer's official duties to intercept, record, or disclose an oral communication or conversation where the officer is a party to the communication ... Provided, That prior to the interception, transmission, or recording the officer shall obtain written or telephonic authorization from a judge or magistrate, who shall approve the interception, recording, or disclosure of communications or conversations with a nonconsenting party ... if there is probable cause to believe that the nonconsenting party has committed, is engaged in, or is about to commit a felony ...
The statute also mandates that an order obtained under this statute be for a reasonable and specified period of time and further authorization may only be granted for an additional period not to exceed 7 days. RCW 9.73.090(4). Additionally, RCW 9.73.120 requires that subsequent reports be filed with the Administrator for the Courts to assure that the system for court ordered electronic surveillance is being properly administrated. State v. Irwin, 43 Wash.App. 553, 718 P.2d 826, review denied, 106 Wash.2d 1009 (1986).
Each application to a superior court judge, for authorization to record a communication or conversation, shall be in writing upon oath or affirmation and contain detailed information, which includes:
(1) The authority of the applicant to make such application;
(2) The identity and qualifications of the investigative or law enforcement officers or agency for whom the authority to record a communication or conversation is sought and the identity of whoever authorized the application;
(3) A particular statement of the facts relied upon by the applicant to justify his belief that an authorization should be issued, including:
(a) The identity of the particular person, if known, committing the offense and whose communications or conversations are to be recorded;
(b) The details as to the particular offense that has been, is being, or is about to be committed;
(c) The particular type of communication or conversation to be recorded and a showing that there is probable cause to believe such communication will be communicated on the wire communication facility involved or at the particular place where the oral communication is to be recorded;
(d) The character and location of the particular wire communication facilities involved or the particular place where the oral communication is to be recorded;
(e) A statement of the period of time for which the recording is required to be maintained, if the character of the investigation is such that the authorization for recording should not automatically terminate when the described type of communication or conversation has been first obtained, a particular statement of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;
(f) A particular statement of facts showing that other normal investigative procedures with respect to the offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to...
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