State v. Roden, s. 41037–1

• Decision Date: 26 June 2012
• Docket Number: Nos. 41037–1,41047–8–II.,s. 41037–1
• Citation: 169 Wash.App. 59,279 P.3d 461
• Parties: STATE of Washington, Respondent, v. Jonathan N. RODEN, Appellant.
• Court: Washington Court of Appeals

169 Wash.App. 59

279 P.3d 461

STATE of Washington, Respondent,

v.Jonathan N. RODEN, Appellant.

Nos. 41037–1, 41047–8–II.

Court of Appeals of Washington, Division 2.

June 26, 2012.

Valerie Marushige, Attorney at Law, Kent, WA, for Appellant.

Sean M. Brittain, Cowlitz Co Prosecutors Office, Kelso, WA, for Respondent.

OPINION PUBLISHED IN PART

PENOYAR, J.

[169 Wash.App. 61]¶ 1 A police detective acquired the iPhone ¹ of a suspected drug dealer. The detective looked through the iPhone's contents and replied to a text message from Jonathan Roden stored on the iPhone. Through a series of text messages from the dealer's phone, the detective and Roden arranged to meet for a drug transaction, which led to Roden's conviction of attempted possession of heroin. He appeals this conviction,arguing that the detective violated Washington's privacy act, chapter 9.73 RCW, by intercepting his private text messages to the dealer. Because Roden impliedly consented to the recording and/or interception of the text messages that he sent to the dealer's iPhone, his argument fails.

¶ 2 Additionally, Roden appeals a conviction of possession of heroin arising from a separate incident. He argues that a police officer violated his Washington Constitution article I, section 7 and Fourth Amendment rights by conducting a warrantless search of a zippered bag in his vehicle. Because officer safety reasons justified the warrantless search, this argument also fails. Accordingly, we affirm both of Roden's convictions.

FACTS

¶ 3 The State charged Roden in two separate cause numbers with attempted possession of heroin (superior court cause no. 09–1–01153–0) and with possession of heroin (superior court cause no. 10–1–00091–4). Roden stipulated that he committed both crimes. The trial court convicted him at a stipulated facts trial. Roden appeals.

ANALYSIS

I. Washington's Privacy Act

¶ 4 Roden argues that the detective's interception of his text messages to a suspected drug dealer violated his rights under Washington's privacy act, chapter 9.73 RCW. He does not raise any constitutional claims with regard to the detective's actions. Because Roden impliedly consented to the recording of these text messages, this argument fails.

A. The Search

¶ 5 On November 3, 2009, when Detective Kevin Sawyer arrived to begin his shift, several officers gave him an iPhone they had seized from Daniel Lee, who had been arrested earlier that day on drug charges.² Sawyer spent about 5 or 10 minutes “looking at some of the text messages” on the iPhone; he also looked to see “who had been calling.” Report of Proceedings (RP) (Apr. 29, 2010) at 9. Many of the text messages that Lee's iPhone had received and stored were from individuals who were seeking drugs from Lee. A text message from an individual identified as “Z–Jon” read, “I've got a hundred and thirty for the one-sixty I owe you from last night.” Clerk's Papers (CP) (41037–1–II) at 24; RP (Apr. 29, 2010) at 11. Posing as Lee, Sawyer sent Z–Jon a text message reply, asking him if he “needed more.” RP (Apr. 29, 2010) at 11. Z–Jon responded:

Yeah, that would be cool. I still gotta sum [sic], but I could use some more. I prefer to just get a ball,³ so I'm only payin' one eighty for it, instead of two Ts for two hundred, that way ... it would be easier for any to get up.

RP (Apr. 29, 2010) at 11.

[169 Wash.App. 63]¶ 6 Eventually, through a series of text messages, Sawyer and Z–Jon agreed to meet at a local grocery store for a drug transaction. From the parking lot, Sawyer sent a text message to Z–Jon, asking him to identify his car. Z–Jon responded that he was in a maroon GMC truck. Sawyer observed the truck in the parking lot and arrested Roden.

¶ 7 Roden moved to suppress “[t]he fact that text messages were exchanged and the content of those messages.” CP (41037–1–II) at 10. He asserted that Sawyer had violated RCW 9.73.030(1)(a), a provision of Washington's privacy act, because he had “clearly intercepted a private communication [that] was transmitted by a telephone without first obtaining the consent of Mr. Roden who was one of the participants in the communication.” CP (41037–1–II) at 9.

¶ 8 At the suppression hearing, Sawyer testified consistent with the facts above. The trial court denied Roden's suppression motion. The trial court entered the following conclusions of law:

3. Under RCW 9.73, there is no reasonable expectation of privacy by a sender from different [sic] cell phone in a cell phone's inbox, just as there is no reasonable expectation of privacy in a text message found in a telephone call message left on an answering machine that could be overheard by anyone.

4. Washington's Privacy Act is broad; however, there was no violation in this instance. The Defendant's motion to suppress is denied.

CP (41037–1–II) at 25.

B. Roden Impliedly Consented to the Recording of the Text Messages

¶ 9 RCW 9.73.030(1)(a) states, in relevant part:

[I]t shall be unlawful for any individual ... or the state of Washington, its agencies, and political subdivisions to intercept, or record any ... [p]rivate communication transmitted by telephone ... between two or more individuals between points within or without the state by any device electronic or otherwisedesigned 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.

Any information obtained in violation of RCW 9.73.030(1)(a) is generally inadmissible in a criminal case. SeeRCW 9.73.050.

¶ 10 We engage in a four-pronged analysis to determine whether an individual has violated the Act. State v. Christensen, 153 Wash.2d 186, 192, 102 P.3d 789 (2004). There must have been (1) a private communication transmitted by a device, which was (2) intercepted by use of (3) a device designed to record and/or transmit, (4) without the consent of all parties to the private communication. Christensen, 153 Wash.2d at 192, 102 P.3d 789 (citing RCW 9.73.030).

¶ 11 “[W]hether a particular communication is private is generally a question of fact, but one that may be decided as a question of law if the facts are undisputed.” State v. Townsend, 147 Wash.2d 666, 673, 57 P.3d 255 (2002). Because the Act does not define “private,” our Supreme Court has adopted the dictionary definition: “belonging to one's self ... secret ... intended only for the persons involved (a conversation) ... holding a confidential relationship to something ... a secret message: a private communication ... secretly: not open or in public.” Townsend, 147 Wash.2d at 673, 57 P.3d 255 (internal quotation marks omitted) (quoting Kadoranian v. Bellingham Police Dep't, 119 Wash.2d 178, 190, 829 P.2d 1061 (1992)) (quoting State v. Forrester, 21 Wash.App. 855, 861, 587 P.2d 179 (1978) (quoting Webster's Third New International Dictionary (1969))).

¶ 12 A communication is private when (1) the communicating parties manifest a subjective intention that it be private and (2) that expectation is reasonable. Christensen, 153 Wash.2d at 193, 102 P.3d 789. Factors bearing on the reasonableness of the privacy expectation include the duration and subject matter of the communication, the location of the communication and the potential presence of third parties, and the role of the nonconsenting party and his or her relationship to the consenting party. Townsend, 147 Wash.2d at 673–74, 57 P.3d 255. But the mere possibility that interception of the communication is technologically feasible does not render public a communication that is otherwise private. Townsend, 147 Wash.2d at 674, 57 P.3d 255.

¶ 13 Townsend is instructive with regard to the issues of what constitutes a “private communication” and what constitutes consent. There, police set up a sting operation after receiving tips that Donald Townsend was attempting to use his computer to arrange sexual liaisons with young girls. Townsend, 147 Wash.2d at 670, 57 P.3d 255. A police detective established an e-mail account with a screen name of “ambergirl87,” a fictitious 13–year–old girl. Townsend, 147 Wash.2d at 670, 57 P.3d 255. Townsend began corresponding with “Amber” via e-mail, asking to meet her and saying that he wanted to “have fun” with her. Townsend, 147 Wash.2d at 670, 57 P.3d 255. In one e-mail, he asked “Amber” to promise not to “tell anyone about us.” Townsend, 147 Wash.2d at 670, 57 P.3d 255. The detective's computer automatically stored these e-mail messages, which allowed the detective to read the messages at his leisure and to print them for use as evidence at a later time. Townsend, 147 Wash.2d at 670, 57 P.3d 255.

¶ 14 At Townsend's request, the detective, under the guise of Amber, also set up an ICQ account to communicate with Townsend. Townsend, 147 Wash.2d at 670, 57 P.3d 255. ICQ is a software chat program that allows users to communicate in writing in real time over the Internet. Townsend, 147 Wash.2d at 670–71, 57 P.3d 255. The ICQ communications between Townsend and Amber contained graphic discussions about sexual topics; in two ICQ messages, Townsend told Amber that he wanted to have sex with her. Townsend, 147 Wash.2d at 671, 57 P.3d 255.

¶ 15 The Townsend court held, without distinguishing between the e-mail communications and the ICQ communications, that Townsend's communications to the fictitious child were private for purposes of the Act. 147 Wash.2d at 674, 57 P.3d 255. The court explained:

[I]t is readily apparent from the undisputed facts that Townsend's subjective intention was that his messages to Amber were for her eyes only. That intent is made manifest by Townsend's message to Amber to not “tell anyone about us.” In addition, the subject matter of Townsend's communications to Amber strongly suggests that he intended the communications to be private. While interception of these messages was a possibility, we cannot say that Townsend's subjective intention that his communications were private was unreasonable under the...