State v. Williams

• Decision Date: 09 October 1980
• Docket Number: No. 46795,46795
• Citation: 94 Wn.2d 531,617 P.2d 1012,24 A.L.R.4th 1191
• Court: Washington Supreme Court
• Parties: , 24 A.L.R.4th 1191 The STATE of Washington, Petitioner, v. Ronald J. WILLIAMS, Respondent. The STATE of Washington, Respondent, v. Richard F. CALIGURI, Petitioner.

Page 531

94 Wn.2d 531

617 P.2d 1012, 24 A.L.R.4th 1191

The STATE of Washington, Petitioner, v. Ronald J. WILLIAMS, Respondent.

The STATE of Washington, Respondent, v. Richard F. CALIGURI, Petitioner.

No. 46795.

Supreme Court of Washington, En Banc.

Oct. 9, 1980.

Donald F. Herron, Pierce County Pros. Atty Dean C. Smith, Tacoma, Kenneth E. Kanev, Seattle, for petitioner.

Kempton, Savage & Gossard, Anthony Savage, Seattle, for respondent.

UTTER, Chief Justice.

These consolidated cases concern the validity of pretrial suppression orders entered in the separate proceedings brought against two alleged co-conspirators. In each case, the trial court suppressed a portion of the evidence, and both the State and defendant sought discretionary review pursuant to RAP 2.3. Division Two of the Court of Appeals granted discretionary review, consolidated the cases for purposes of appellate review, and certified the cases to this court.

The parties raise four separate issues which must be resolved in order to determine the validity of the suppression orders: (1) the applicability of the Washington privacy act to evidence gathered by federal agents which is to be used in a state criminal proceeding; (2) whether a police officer or civilian informant who participates in a recorded conversation can testify about the content of the intercepted conversation even though the recording is suppressed; (3) whether a defendant has standing to object to admission in his trial of recordings of the private conversations of a codefendant; and (4) the admissibility of recorded conversations containing threats of extortion, blackmail, bodily harm, or other unlawful requests or demands. We hold our state privacy act applies to interceptions and recordings by federal agents and that tape recordings obtained in violation of our act are inadmissible in state court proceedings. That act also prohibits testimony about those recorded conversations, when the recording itself is suppressed. Under our state privacy act, a defendant has standing to object to use of evidence obtained in violation of the statute, even though the defendant was not a participant in the unlawfully intercepted or recorded conversation. Recordings and police participant testimony concerning any parts of conversations relating to threats of extortion, blackmail, bodily harm, or unlawful requests or demands of a similar nature were properly ruled admissible in the Williams case. The suppression order in the Williams case is affirmed and the order in the Caliguri case is affirmed in part and reversed in part.

During 1977 and 1978, the United States Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms conducted an investigation of alleged racketeering activities in Pierce County. In the course of the investigation, federal agents obtained evidence of criminal activity by Robert Valentine who agreed to cooperate in the investigation as part of a plea bargain arrangement. Valentine assisted the federal agents in using wire recorders and transmission devices to record conversations he had with defendant Ronald Williams.

Valentine further assisted the federal agents by introducing undercover agent Norman Transeth to defendant Williams. Transeth also engaged in conversations with Williams which were tape recorded by the federal agents. Agent Transeth in turn introduced Williams to undercover agent Paul Russell. In telephone conversations between Williams and Russell, which were recorded by the federal agents, Williams allegedly arranged for a contact between Russell and defendant Richard Caliguri. Subsequently, Russell met with Caliguri, and their conversations were recorded by the federal agents. All of the interceptions and recordings of both defendants' conversations took place without the knowledge or consent of the defendants. The interceptions and recordings were conducted pursuant to the federal wiretap statute, Title III, Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520.

The tape recordings of all the conversations were used in federal criminal proceedings against both Williams and Caliguri on racketeering charges, and both defendants were convicted and sentenced. The State of Washington then brought criminal charges against both defendants. Williams was charged with aggravated attempted murder, attempted murder, first-degree arson, conspiracy to commit murder, and conspiracy to commit first-degree arson. Caliguri was charged with conspiracy to commit first-degree murder and conspiracy to commit first-degree arson. In both cases the State seeks to introduce the tape recordings as well as testimony by the federal agents and civilian informant Valentine concerning the circumstances and content of all the recorded conversations. In a pretrial motion, Williams and Caliguri each moved for the suppression of the recordings and the testimony of the participants in the conversations.

The trial court in the Williams case ordered the suppression of the recordings and the testimony concerning the conversations in which Williams participated and the conversations in which codefendant Caliguri participated. The court ruled admissible, however, those parts of the conversations which related to threats of extortion, blackmail, bodily harm, or other unlawful requests or demands.

In the Caliguri case, the trial court suppressed only the tape recordings of the conversations in which Caliguri participated. The court ruled admissible agent Russell's testimony concerning the content of those conversations, and also ruled admissible the recordings of and testimony concerning conversations with codefendant Williams.

I. APPLICABILITY OF STATE PRIVACY ACT

The challenged tape recordings were all made with the knowledge and consent of only one party to the conversation, and without prior judicial approval. The interception and recording were conducted in accordance with the federal wiretap statute which provides that:

It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.

18 U.S.C. § 2511(2)(c). However, the interception and recording did not comply with the provisions of the Washington privacy act, RCW 9.73, which requires prior judicial approval in order to intercept or record a private telephone communication or a private conversation with the consent of only one of the parties to the conversation. RCW 9.73.030. Thus, if the state privacy act is applicable, the recordings must be suppressed. RCW 9.73.050. The State argues that the privacy act is not applicable because: (a) the language of the statute implicitly excludes federal agents from its statutory provisions; and (b) the federal wiretap law preempts the more rigorous requirements of the state privacy act.

A.

The state privacy act applies to interceptions and recordings conducted by: "any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions ..." RCW 9.73.030(1). The State argues that because the statute specifically mentions "the state of Washington, its agencies, and political subdivisions" and does not similarly list the federal government and its agencies and political subdivisions, it must be inferred that the legislature intended to exclude federal agents from the coverage of the statute. The State relies upon the principle of "expressio unius est exclusio alterius", which declares that when a statute specifically designates the things or classes of things upon which it operates, it can be inferred that the legislature intended to exclude any omitted matters. See, e. g., Washington Natural Gas Co. v. Public Util. Dist. No. 1, 77 Wash.2d 94, 98, 459 P.2d 633 (1969).

This principle, however, is not applicable in the present case because federal agents are, in fact, included within one of the general classes listed in the statute. The privacy act provides that it is applicable to "any individual." RCW 9.73.030(1). Interpreting this phrase, as we must, in accordance with its ordinary meaning (see In re Lehman, 93 Wash.2d 25, 27, 604 P.2d 978 (1980)), we conclude the legislature intended the statute to apply to all individuals, including federal agents.

Moreover, as we have repeatedly cautioned, the maxim of express mention and implicit exclusion " 'is to be used only as a means of ascertaining the legislative intent where it is doubtful, and not as a means of defeating the apparent intent of the legislature.' " DeGrief v. Seattle, 50 Wash.2d 1, 12, 297 P.2d 940, 947 (1956); State ex rel. Becker v. Wiley, 16 Wash.2d 340, 350-51, 133 P.2d 507 (1943); State ex rel. Spokane United Rys. v. Department of Pub. Serv., 191 Wash. 595, 598, 71 P.2d 661 (1937). The legislature's employment of the term "any individual" evinces an intention to render the statutory requirements broadly applicable to all individuals who might conceivably record a conversation. The maxim of express mention and implicit exclusion cannot be rigidly applied to exclude federal agents and thereby defeat the intent of the legislature.

B.

The State next argues that the federal wiretap statute preempts the Washington privacy act, and therefore precludes the application of state law to suppress evidence gathered by federal agents in conformance with federal law.

When both a federal and state statute regulate the same subject matter in conflicting ways, the federal enactment will preempt the state statute if: (1) the federal statute clearly evinces a congressional intent to preempt state law; or (2) "The ... conflict (between the two acts) is so 'direct and positive' that the two acts cannot 'be reconciled or consistently stand together,' " (Kelly v. Washington ex rel. Foss Co., 302 U.S. 1, 10, 58 S.Ct. 87, 92, 82 L.Ed. 3 (1937)), and the...