State v. Knight

• Decision Date: 06 November 1995
• Docket Number: No. 17256-9-II,17256-9-II
• Court: Washington Court of Appeals
• Parties: The STATE of Washington, Respondent, v. Shawn David KNIGHT and Damon T. Messersmith, aka Damon T. Santillan, Appellants.

Page 670

79 Wn.App. 670

904 P.2d 1159

The STATE of Washington, Respondent, v. Shawn David KNIGHT and Damon T. Messersmith, aka Damon T.

Santillan, Appellants.

No. 17256-9-II.

Court of Appeals of Washington,

Division 2.

Nov. 6, 1995.

Michael Bruce Dodds, Clark Co. Pros. Atty. Office, Vancouver, for respondent.

R.A. Lewis, Knapp O'Dell & Lewis, Camas, for appellants.

MORGAN, Judge.

Shawn David Knight and Damon T. Messersmith appeal their felony drug convictions. We affirm except for one count.

At all times material to this case, Deputy Arne Gonser was employed by the Skamania County Sheriff's Office. Officer Craig Landwehr, Officer Douglas Luse, and Captain Robert Kanekoa were employed by the Vancouver Police Department. Lieutenant James Pillsbury was employed by the Clark County Sheriff's Office. Raymond Blaisdell was the Sheriff of Skamania County and, by contract, the chief law enforcement officer for the City (now Town) of Stevenson. Stevenson is an incorporated municipality within Skamania County.

Gonser, Landwehr, Luse, and Pillsbury were also members of an interlocal Drug Enforcement Task Force called the Clark-Skamania Narcotics Task Force. Kanekoa was not. Pillsbury was the task force supervisor.

The task force had been formed in 1988, by written agreement executed pursuant to RCW 39.34. The agreement provided "for the establishment of a Drug Enforcement Task Force to be supported by the financial and manpower resources of the participating jurisdictions in accordance with the provisions set forth hereinbelow." The agreement was signed by Clark County, Skamania County, and the Cities of Vancouver, Camas, and Washougal. It was also signed by the Sheriff of Clark County and the Sheriff of Skamania County. It was not signed by the City of Stevenson.

On May 13, 1992, Luse bought from Shawn Knight a substance that appeared to be methamphetamine. Luse made the buy at Knight's residence in Stevenson. The substance turned out to be vitamin B.

On May 27, 1992, Luse tried to make another buy from Knight. Knight indicated he had no drugs to sell.

On June 18, 1992, in anticipation of again contacting Knight, Luse applied to Pillsbury for authority to intercept and record conversations. See RCW 9.73.230(1). Pillsbury granted the requested authorization and filled out a written report. See RCW 9.73.230(2). Wearing a body wire, Luse went to Knight's residence in Stevenson, where he purchased methamphetamine from Knight and Messersmith while Landwehr and Gonser recorded the conversation on standard cassette tapes. On June 25, 1992, Pillsbury signed a report to the court. See RCW 9.73.230(6).

On June 26, 1992, in anticipation of contacting Knight again, Luse applied to Kanekoa for another grant of authority to intercept and record. Kanekoa granted the requested authorization and filled out a written report listing "all members of the Clark-Skamania Narcotics Task Force" ¹ as persons empowered to intercept and record. See RCW 9.73.230(2). Wearing a body wire, Luse again went to Knight's residence, where he bought methamphetamine from Knight while Landwehr and Gonser recorded the transaction on standard cassette tapes. Messersmith was not present on this occasion. On July 1, 1992, Kanekoa signed a report to the court. See RCW 9.73.230(6).

On July 16, 1992, a judge of the Skamania County Superior Court reviewed both intercept reports and found probable cause.

On November 4, 1992, by amended information, the State charged Knight with one count of delivery of material in lieu of a controlled substance on May 13 (Count I), delivery of a controlled substance on June 18 (Count II), and delivery of a controlled substance on June 26 (Count III). On November 19, 1992, the State charged Messersmith with delivery of a controlled substance on June 18. In all but Count I against Knight, the State alleged that the crime was committed "within 1,000 feet of the perimeter of the school grounds." ²

Knight and Messersmith moved to suppress evidence obtained as a result of the recorded conversations. A hearing was held, and the motion was denied. The cases proceeded to trial, at which the recordings made on June 18 and June 26 were admitted. The jury returned guilty verdicts on all counts.

Knight and Messersmith now appeal. None of their arguments is directed at the May 13 count against Knight. Thus, the conviction on that count will be affirmed.

With respect to the remaining three counts, Knight and Messersmith contend that the police unlawfully recorded the transactions that took place in Stevenson on June 18 and June 26. We agree as to the June 26 transaction (Knight's Count III), but disagree as to the June 18 transaction (Knight's Count II and Messersmith's Count I). The primary governing statute is RCW 9.73.230, pertinent portions of which are set forth in the margin. ³

I

Knight and Messersmith make three constitutional arguments. We consider each separately.

A

Knight and Messersmith argue that Laws of 1989, chapter 271, codified in part as RCW 9.73.230, violates the "single subject" clause of the Washington Constitution. For the reasons set forth in State v. Jenkins, 68 Wash.App. 897, 847 P.2d 488, review denied, 121 Wash.2d 1032, 856 P.2d 383 (1993), and State v. Acevedo, 78 Wash.App. 886, 899 P.2d 31 (1995), we hold to the contrary.

B

Knight and Messersmith argue that RCW 9.73.230 violates separation of powers and due process of law, because it allows law enforcement officers, rather than a neutral magistrate, to determine probable cause. However, as the Supreme Court has said in a different context, this argument "appears to put the cart before the horse." Washburn v. Beatt Equipment Co., 120 Wash.2d 246, 298, 840 P.2d 860 (1992). Under the federal constitution, there is no search when one party consents to the interception and recording of a private conversation. United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971). The same is true under Article I, § 7 of the Washington Constitution. State v. Salinas, 119 Wash.2d 192, 197, 829 P.2d 1068 (1992); State v. Pulido, 68 Wash.App. 59, 63, 841 P.2d 1251 (1992), review denied, 121 Wash.2d 1018, 854 P.2d 41 (1993). Here, Luse was a party to the intercepted conversations, and he consented to the conversations being recorded. Thus, there was no search for purposes of either the federal or state constitution; no constitutional requirement that a magistrate or anyone else determine probable cause; and no constitutional violation merely because, on two occasions, police supervisors took action using a statute that imposes standards more stringent than those imposed by the federal or state constitution.

C

Knight and Messersmith argue that RCW 9.73.030, RCW 9.73.090, and RCW 9.73.230 violate the equal protection clause "even under the most minimal scrutiny." ⁴ This is true, they say, because RCW 9.73.030 and RCW 9.73.090 give more protection to the privacy rights of non-drug suspects, including those who have committed crimes of violence, than RCW 9.73.230 gives to the privacy rights of drug suspects. They assert there is no rational basis for this difference, and that they should receive the privacy rights afforded by RCW 9.73.030 and RCW 9.73.090.

According to the Legislature, drug crime is prevalent. RCW 9.73.200. More than other crimes, it is routinely investigated by undercover operatives who face numerous life-threatening situations. RCW 9.73.200. The resultant need to assure the safety of a large number of undercover operatives provides a rational basis for distinguishing between drug and non-drug crimes, and for the classifications used by RCW 9.73.030, RCW 9.73.090 and RCW 9.73.230.

II

Knight and Messersmith make a number of arguments designed to show that the police failed to comply with RCW 9.73.230. We consider most of them separately.

A

Knight and Messersmith argue (1) that Pillsbury and Kanekoa could not authorize the interception or recording of conversations outside their respective jurisdictions, and (2) that Pillsbury's and Kanekoa's respective jurisdictions did not include Stevenson. As a result, they say, the authorizations to record conversations at Knight's residence in Stevenson were invalid; the recordings were improperly admitted at trial; and the convictions based on the June 18 and June 26 transactions should be reversed.

To support the proposition that Pillsbury and Kanekoa could not authorize the interception of conversations outside their respective jurisdictions, Knight and Messersmith rely on RCW 9.73.230(3). It provides:

An authorization under this section is valid in all jurisdictions within Washington state and for the interception of communications from additional persons if the persons are brought into the conversation or transaction by the nonconsenting party or if the nonconsenting party or such additional persons cause or invite the consenting party to enter another jurisdiction.

As they argue, this statute means, by necessary implication, that an authorization to intercept and record is invalid outside the jurisdiction of the issuing supervisor except when "the nonconsenting party or such additional persons cause or invite the consenting party to enter another jurisdiction." The stated exception does not apply here, and other exceptions may not be implied. Jepson v. Department of Labor and Indus., 89 Wash.2d 394, 404, 573 P.2d 10 (1977) ("[w]here a statute provides for a stated exception, no other exceptions will be assumed by implication."); see also In re Eaton, 110 Wash.2d 892, 898, 757 P.2d 961 (1988); State v. Roadhs, 71 Wash.2d 705, 707, 430 P.2d 586 (1967). Under the circumstances present here, neither Pillsbury nor Kanekoa could authorize the interception or recording of conversations outside his jurisdiction.

Knight and Messersmith argue that Kanekoa's jurisdiction did not include Stevenson because he was a Vancouver city police officer, and not a member of the task force. We agree....