State v. Goucher

• Decision Date: 29 September 1994
• Docket Number: No. 61383-4,61383-4
• Citation: 124 Wn.2d 778,881 P.2d 210
• Parties: The STATE of Washington, Respondent, v. Harold Michael GOUCHER, Appellant.
• Court: Washington Supreme Court

Page 778

124 Wn.2d 778

881 P.2d 210

The STATE of Washington, Respondent, v. Harold Michael GOUCHER, Appellant.

No. 61383-4.

Supreme Court of Washington,

En Banc.

Sept. 29, 1994.

John A. Hays, Longview, for appellant.

C.C. Bridgewater, Cowlitz County Prosecutor, Ronald S. Marshall, Deputy, Kelso, for respondent.

MADSEN, Justice.

At issue in this case is whether police officers violated the Defendant's right to be free from government intrusion under the Fourth Amendment and article 1, section 7 of the Washington Constitution when they answered his telephone call during a lawful search of a residence and engaged him in a conversation that ultimately led to his arrest.

Facts

On or about October 23, 1992, a Cowlitz County district court judge granted a request for a search warrant presented by members of the Cowlitz-Wahkiakum County Narcotics Task Force. The search warrant was for the person and residence of Jose Luis Garcia-Lopez, and was based on a confidential informant's statement that Garcia-Lopez was selling cocaine at his residence. The supporting affidavit stated that the informant told Garcia-Lopez he/she might need to buy some more cocaine in the future, and that Garcia-Lopez " 'told [the informant] to go ahead and call and he would have it available.' " Clerk's Papers, at 27. While the warrant incorporated the affidavit by reference, neither document specifically referred to a search or seizure of any telephones at the Garcia-Lopez residence.

The search warrant was executed on October 23, 1992. During the search of the residence and the four persons found therein, the telephone rang and was answered by a task force detective. When an adult male asked for Luis, the detective told him that Luis had gone on a run and that he (the detective) was handling business until Luis returned.

The caller identified himself as Mike Goucher and said he was calling from a pay phone. He asked if he could come over and buy "an eighth", which the detective understood to mean an eighth of an ounce of cocaine. Clerk's Papers, at 27. The detective told Goucher to come over, but not until 11:30 p.m., as he had someone coming before Goucher.

The task force members then obtained some previously seized, pretested cocaine. One of the detectives was designated to act as the seller and took possession of the cocaine. At about 11:35 p.m. a man came to the Garcia-Lopez residence and said he was Mike who had called earlier. The detective asked Mike if he had the money, whereupon Mike took $40 from his pocket. The detective then gave Mike a bindle of cocaine, which Mike examined. When Mike remarked that it was a bit light, the detective agreed and gave him another bindle.

Mike told the detective he had been dealing with Luis for some time and had established a relationship of trust with him. The detective then showed Mike his badge and placed him under arrest. Mike was fully identified as Harold Michael Goucher, hereafter referred to as the Defendant.

After the detectives recovered the first bindle of cocaine from the Defendant's sock, he was advised of his rights. He waived them and admitted having come to buy cocaine that night and to having purchased it from Garcia-Lopez before.

By information filed on October 29, 1992, the Cowlitz County prosecutor charged the Defendant with one count of possessing cocaine. The Defendant then moved to suppress the evidence obtained as a result of the detective answering the telephone in Garcia-Lopez' residence.

The trial judge denied the motion to suppress, concluding that the Defendant had no expectation of privacy in arranging the cocaine purchase at Garcia-Lopez' residence and that the officers were at the residence under authority of a valid search warrant. The judge further concluded that the supporting affidavit gave the officers reason to answer the telephone at the residence when it rang and to make such cocaine deals as the callers sought to make.

Following the denial of his motion to suppress, the Defendant stipulated to the facts and the court found him guilty as charged. The Defendant then appealed, and Division Two of the Court of Appeals certified his appeal to this court pursuant to RCW 2.06.030.

Analysis

In challenging the denial of his motion to suppress, the Defendant first takes issue with the trial court's conclusion that he had no expectation of privacy in arranging the cocaine purchase. More precisely, the Defendant asserts that under article 1, section 7 of the Washington State Constitution, the citizens of this state have a privacy interest in the making and receiving of telephone calls.

Const. art. 1, § 7 provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law". Violation of a right of privacy under this provision turns on whether the State has unreasonably intruded into a person's "private affairs". State v. Boland, 115 Wash.2d 571, 577, 800 P.2d 1112 (1990); State v. Myrick, 102 Wash.2d 506, 510, 688 P.2d 151 (1984). In contrast, a search occurs under the Fourth Amendment if the government intrudes upon a subjective and reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 351-52, 88 S.Ct. 507, 511-12, 19 L.Ed.2d 576 (1967). The private affairs inquiry is broader than the Fourth Amendment's reasonable expectation of privacy inquiry. While including legitimate privacy expectations protected by the Fourth Amendment, the inquiry under the Washington Constitution focuses on "those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant". Boland, 115 Wash.2d at 577, 800 P.2d 1112 (quoting Myrick, 102 Wash.2d at 510-11, 688 P.2d 151).

We find no error in the trial court's conclusion that the Defendant's telephone conversation with the detective did not violate the Fourth Amendment. We note that under similar facts, the Fifth Circuit found no expectation of privacy on the defendant/caller's part:

[The defendant] instituted the calls and spoke voluntarily and without hesitation to the agents. None of the agents pretended to be Brock, the party [defendant] wished to reach. [Defendant] had no legitimate expectation of privacy in his telephone conversation with the agents. He assumed the risk of exposure when he spoke freely with strangers.

United States v. Congote, 656 F.2d 971, 976 (5th Cir.1981); see also United States v. Passarella, 788 F.2d 377, 380 (6th Cir.1986) (every state and federal court that has addressed similar facts has concluded that an agent's conduct in answering a telephone while lawfully on the premises is not violative of the Fourth Amendment).

The principal issue, then, is whether the Defendant's rights under the Washington Constitution were violated by the detective's actions in answering his telephone call and engaging him in conversation.

It is settled law that article 1, section 7 provides greater protection for telephonic communications than does the Fourth Amendment. State v. Gunwall, 106 Wash.2d 54, 68-69, 720 P.2d 808, 76 A.L.R.4th 517 (1986). Thus, we need not reexamine all of the factors set forth in Gunwall for determining whether a state constitutional provision provides greater protection than its federal counterpart. See Boland, 115 Wash.2d at 576, 800 P.2d 1112; State v. McFadden, 63 Wash.App. 441, 446, 820 P.2d 53 (1991), review denied, 119 Wash.2d 1002, 832 P.2d 487 (1992). Our task is limited to an examination of Washington law to see if the Defendant has established that he is entitled to the enhanced protection of article 1, section 7 under the facts of this case.

We emphasize here that if the State has not intruded unreasonably into someone's private affairs, no search has occurred and article 1, section 7 has not been violated. See State v. Young, 123 Wash.2d 173, 181, 867 P.2d 593 (1994). In Young, this court explained that "what is voluntarily exposed to the general public" is not considered part of a person's private affairs. Young, at 182, 867 P.2d 593.

In this case, the Defendant voluntarily exposed his desire to buy drugs to someone he did not know. While he states that "[i]n today's world, the telephone is the primary means for personal communication with friends, loved ones, and business relations", he neglects to observe that his conversation was with an acknowledged stranger. See Br. of Appellant, at 14. The State's contention that the Defendant waived his claim of privacy by dealing with a stranger thus has merit. A privacy interest must be reasonable to warrant protection even under article 1, section 7. As one commentator has stated, "a 'private affairs' interest may be defined as a matter or object personal to an individual such that intruding upon it would offend a reasonable person." James W. Talbot, Comment, Rethinking Civil Liberties Under the Washington State Constitution, 66 Wash.L.Rev. 1099, 1113 (1991).

The Court of Appeals addressed this concept in relation to telephone records in State v. Butterworth, 48 Wash.App. 152, 737 P.2d 1297, review denied, 109 Wash.2d 1004 (1987). At issue in Butterworth was whether police validly obtained the defendant's unpublished address and telephone number by requesting it from the telephone company. The defendant contended that the police unreasonably intruded into his private affairs when they obtained his address without a search warrant or other valid legal process.

The Butterworth court observed that in Gunwall, this court specifically concluded that a telephone subscriber has a protected privacy interest under article 1, section 7, in the records of the calls she makes. Gunwall, 106 Wash.2d at 67-68, 720 P.2d 808, cited in Butterworth, 48 Wash.App. at 156, 737 P.2d 1297. The court then addressed an additional consideration presented by the Butterworth facts Indeed, since Butterworth specifically requested privacy regarding his address and telephone number in asking for an unpublished...