State v. Kipp

• Citation: 317 P.3d 1029,179 Wash.2d 718
• Decision Date: 06 February 2014
• Docket Number: No. 88083–2.,88083–2.
• Court: United States State Supreme Court of Washington
• Parties: STATE of Washington, Respondent, v. William John KIPP, Jr., Petitioner.

179 Wash.2d 718

317 P.3d 1029

STATE of Washington, Respondent,

v.William John KIPP, Jr., Petitioner.

No. 88083–2.

Supreme Court of Washington, En Banc.

Argued Sept. 19, 2013.

Decided Feb. 6, 2014.

Alton B. McFadden II, Olsen & McFadden Inc. PS, Bainbridge Island, WA, for Petitioners.

Jeremy Aaron Morris, Kitsap County Prosecutor's Office, Port Orchard, WA, for Respondents.

Sarah A. Dunne, ACLU of Washington Foundation, Nancy Lynn Talner, Attorney at Law, Douglas B. Klunder, Attorney at Law, Seattle, WA, amicus counsel for Aclu.

C. JOHNSON, J.

¶ 1 The central issue in this case is whether the trial court erred in admitting into evidence a secretly recorded conversation between William Kipp and his brother-in-law in violation of Washington's privacy act, chapter 9.73 RCW. Kipp was convicted of two counts of rape of a child and one count of child molestation in the second degree. Part of the evidence presented at trial was a recording of a conversation made without Kipp's knowledge or consent. Before trial, Kipp moved to suppress the recording, relying on the privacy act. The trial court ruled that the recording was not a private conversation and, therefore, not subject to suppression. A jury found Kipp guilty and he appealed. In a split decision, the Court of Appeals affirmed, holding that substantial evidence supported the trial court's ruling. In reaching its conclusion, the Court of Appeals rejected this court's precedent under State v. Clark, 129 Wash.2d 211, 916 P.2d 384 (1996), which holds that when facts are undisputed, the question of whether a particular communication is private is a matter of law reviewed de novo. The Court of Appeals utilized an abuse of discretion standard on review. Kipp petitioned this court for discretionary review, which we granted. State v. Kipp, 171 Wash.App. 14, 286 P.3d 68 (2012), review granted,

176 Wash.2d 1024, 301 P.3d 1047 (2013). We hold that for purposes of the privacy act, when facts are undisputed, the question of whether a particular communication is private is a matter of law reviewed de novo. In this case, Kipp's conversation with his brother-in-law was private and therefore should have been suppressed. We reverse and remand.

Facts and Procedural History

¶ 2 William Kipp was accused of sexually assaulting two of his nieces. He was confronted by their father, Kipp's brother-in-law, who secretly recorded a conversation onto a cassette tape. This conversation was reported to police. The State charged Kipp, for the acts against one of his nieces, with two counts of second degree rape of a child and one count of second degree child molestation.

¶ 3 Before trial, Kipp moved to suppress the recorded conversation under the privacy act, chapter 9.73 RCW. The trial court declined to conduct an evidentiary hearing and instead accepted the facts put forth by the parties. ¹ The trial court also listened to the recording, which was a little over 10 minutes in duration, and accepted the following undisputed facts: (1) Kipp did not know he was being recorded, (2) the taped conversation is about 10 minutes long, (3) the conversation took place in the upstairs kitchen of a private home, (4) the conversation was between Kipp and his brother-in-law, (5) the topic of conversation was the accusation that Kipp molested Joseph Tan's daughters, and (6) Kipp suggested toward the end of the conversation that they talk about it further at a later time. Based on these facts, the trial court concluded that the conversation between Kipp and his brother-in-law was not a private conversation and therefore not subject to suppression under the privacy act. The recorded conversation was admitted into evidence at trial, and the court reporter transcribed the recording to the best of her abilities. The court revisited the suppression motion after the State substituted the original recording during trial. The court reaffirmed its earlier ruling. A jury found Kipp guilty on all counts.

¶ 4 Kipp appealed. The Court of Appeals affirmed in a split decision, holding that sufficient evidence supported the trial court's decision that the conversation was not private. We granted Kipp's petition for discretionary review. The American Civil Liberties Union of Washington filed a brief in support of Kipp's argument.

Analysis

¶ 5 The privacy act prohibits recording of 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). Evidence obtained in violation of the act is inadmissible for any purpose at trial. RCW 9.73.050. It is undisputed that the conversation was recorded without Kipp's permission. The only issue, then, is whether the conversation between Kipp and his brother-in-law was “private.”

¶ 6 Generally, the privacy act is implicated when one party records a conversation without the other party's consent. Washington State's privacy act is considered one of the most restrictive in the nation. State v. Townsend, 147 Wash.2d 666, 672, 57 P.3d 255 (2002).

¶ 7 “Our state has a long history of statutory protection of private communications and conversations.” Clark, 129 Wash.2d at 222, 916 P.2d 384.

Since 1909, the privacy act has protected sealed messages, letters, and telegrams from being opened or read by someone other than the intended recipient. RCW 9.73.010–.020. In 1967, the legislature amended the act in order to keep pace with the changing nature of electronic communications and in recognition of the fact that there was no law that prevented eavesdropping.

State v. Christensen, 153 Wash.2d 186, 198, 102 P.3d 789 (2004). “In 1977, the [l]egislature

permitted electronic recording of conversations with one party's consent where law enforcement obtained an order from a judge or magistrate finding probable cause to believe that the nonconsenting party committed, was engaged in, or is about to commit a felony.” Clark, 129 Wash.2d at 222–23, 916 P.2d 384 (citing RCW 9.73.090(2)). Again, in 1989, the legislature broadened the ability of law enforcement officers to record private conversations and communications concerning drug felonies. SeeRCW 9.73.090(5); Clark, 129 Wash.2d at 223, 916 P.2d 384.

¶ 8 The federal government and 49 states have enacted privacy or eavesdropping statutes. Washington is 1 of only 11 states that require that all parties to a private communication consent to its recording and disclosure. This “all-party consent” rule adds an additional layer of protection to the private conversations of Washington's residents. Since 1967, the legislature has twice made amendments to the act without amending the “all-party consent” provision. Instead, the Washington statute continues to tip the balance in favor of individual privacy at the expense of law enforcement's ability to obtain information in criminal proceedings. Christensen, 153 Wash.2d at 198–99, 102 P.3d 789.

¶ 9 Washington's privacy act and “all-party consent” rule provide more protection than both the state and federal constitutions. Under Washington Constitution article I, section 7, when one participant in a conversation has consented to the recording of the conversation, the state constitution is not violated.²State v. Corliss, 123 Wash.2d 656, 663–64, 870 P.2d 317 (1994) (concluding that petitioner's state constitutional privacy rights were not violated when an informant consented to allow police officers to overhear his conversations with petitioner). Similarly, recording a conversation with one party's consent does not violate the Fourth Amendment to the United States Constitution. United States v. Caceres, 440 U.S. 741, 750, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979).

¶ 10 In this case, we must decide whether this state's privacy act was violated when Kipp's brother-in-law recorded their conversation in the kitchen of a private residence without Kipp's permission.

1. Standard of Review

¶ 11 We must first determine what standard of review applies to a trial court's ruling on a motion to suppress evidence under the privacy act. The protections of the privacy act apply to private communications or conversations. Clark, 129 Wash.2d at 224, 916 P.2d 384 (citing Kadoranian v. Bellingham Police Dep't, 119 Wash.2d 178, 189, 829 P.2d 1061 (1992)). This court has repeatedly observed that “[w]hether a particular conversation is private is a question of fact, but where the facts are undisputed and reasonable minds could not differ, the issue may be determined as a matter of law.” Clark, 129 Wash.2d at 225, 916 P.2d 384 (citing Kadoranian, 119 Wash.2d at 190, 829 P.2d 1061);see Lewis v. Dep't of Licensing, 157 Wash.2d 446, 458, 139 P.3d 1078 (2006); Christensen, 153 Wash.2d at 192, 102 P.3d 789;Townsend, 147 Wash.2d at 673, 57 P.3d 255. Questions of law are reviewed de novo. State v. Jim, 173 Wash.2d 672, 678, 273 P.3d 434 (2012).

¶ 12 While acknowledging this “oft-cited” precedent, the Court of Appeals in this case concluded that “this is the wrong standard” and applied a substantial evidence standard. Kipp, 171 Wash.App. at 23, 286 P.3d 68. In doing so, it suggested that we erred in Clark by importing a civil standard of review for summary judgment from Kadoranian into a criminal case. The Court of Appeals concluded that “the Kadoranian standard as applied to criminal cases is an ‘anomaly in Washington law’ that should be discarded.” Kipp, 171 Wash.App. at 25, 286 P.3d 68.³

¶ 13 But we have said that before an established rule may be abandoned it must be shown to be both incorrect and harmful. State v. Abdulle, 174 Wash.2d 411, 415, 275 P.3d 1113 (2012).⁴ first, the state fails to show thaT THE RULE IS INCORRECT. The general rule is that “where competing documentary evidence must be weighed and issues of credibility resolved, the substantial evidence standard is appropriate.” Dolan v. King County, 172 Wash.2d 299, 310, 258...