State v. Wojtyna

Citation70 Wn.App. 689,855 P.2d 315
Decision Date26 July 1993
Docket NumberNo. 29249-8-I,29249-8-I
CourtCourt of Appeals of Washington
PartiesSTATE of Washington, Respondent, v. David C. WOJTYNA, Appellant. Division 1
Washington Appellate Defender, Joshua Weinstein, Seattle, for appellant

Seth R. Dawson, Pros. Atty., David F. Thiele, Deputy, Everett, for respondent.

WEBSTER, Chief Judge.

David C. Wojtyna appeals his conviction of attempted possession of a controlled substance (cocaine) in violation of RCW 69.50.407 and 69.50.401(d).

FACTS

On November 10, 1990, the Snohomish County Police seized a tele-pager pursuant to the arrest of a local cocaine dealer. For the next 6 days, the pager was left on and incoming calls were monitored. On November 16, the pager received an incoming call. A detective called the number and arranged a meeting with Wojtyna whereby a substance thought by Wojtyna to be cocaine (actually a powdered substitute) was exchanged for money.

Wojtyna was subsequently arrested and charged with attempted possession of a controlled substance. On May 23, 1993, he brought a motion to suppress claiming the evidence was obtained in violation of Washington's Privacy Act (RCW 9.73). The trial court denied the motion, stating:

There wasn't anything intercepted and [the pager] wasn't ... a device. What privacy, if any, the defendant lost here was that somebody else may answer the pager just as somebody else may answer a phone. And I don't think you would have this if the police were executing a search warrant and the phone rang in the premises and they answered the phone. They're not intercepting anything. It may be a ruse to answer a pager and act like a dealer, but that's not violation of the statute.

Wojtyna was convicted as charged.

DISCUSSION

Wojtyna first claims monitoring his incoming number on the pager was an illegal search in violation of article 1, § 7 of the Washington Constitution. He cites State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986), where the court held that article 1, § 7 "prevent[s] the defendant's long distance home telephone records from being obtained from the phone company, or a pen register from being installed on her telephone connections, without a search warrant". Gunwall, 106 Wash.2d at 63, 720 P.2d 808. 1 Wojtyna claims that article 1, § 7 of the Washington Constitution affords him broader protection than its federal counterpart, the Fourth Amendment, based on the application of the following six "criteria" enunciated in Gunwall:

(1) the textual language; (2) differences in the texts; (3) constitutional history; (4) preexisting state law; (5) structural differences; and (6) matters of particular state or local concern.

Gunwall, 106 Wash.2d at 58, 720 P.2d 808.

We disagree. Since Gunwall involved comparing the same constitutional provisions to be examined here, we adopt its analysis of the first, second, third, and fifth factors and examine only the fourth and sixth factors. Gunwall, 106 Wash.2d at 65-67, 720 P.2d 808; see also State v. Boland, 115 Wash.2d 571, 576, 800 P.2d 1112 (1990). Under the fourth factor, if there is previously established state law "responsive to concerns of its citizens long before they are addressed by analogous constitutional claims" (Gunwall, 106 Wash.2d at 62, 720 P.2d 808), it may "bear on the granting of distinctive state constitutional rights" (Gunwall, 106 Wash.2d at 61, 720 P.2d 808). Such is not the case here. Unlike in Gunwall, there is no long history and tradition of strict legislative protection of a phone number dialed to, displayed, and received from its intended destination, a pager, justifying resort to independent state constitutional grounds. Although the state of Washington has historically extended strong protection to telephonic and electronic communications, the operation and use of a pager is outside the scope of such traditional private communications. A pager is fundamentally different from a pen register, which is attached to a telephone line to identify the numbers a person dials. The activity condemned in Gunwall was seizure of a record of the phone numbers dialed by the defendant (either by examining telephone records or through the use of a pen register). Contrary to the seizure of a defendant's dialed numbers, the activity objected to here is the seizure of a number sent to and received by a third party which happened to be Wojtyna's. This is not a case where the State monitored every number Wojtyna dialed at the source, but rather, where his number was independently displayed and retrieved from the place to which he intended to sendit. Therefore- , we find a lack of "preexisting state law" justifying resort to independent state grounds.

Under the sixth factor, resort to the state constitution may be appropriate if the subject matter is local in character or of particular state interest. Gunwall, 106 Wash.2d at 62, 720 P.2d 808. However, the federal constitution may be more appropriate if there appears to be a need for national uniformity. Id. The determinations of other state courts on independent state grounds are instructive in determining whether a matter is local or national in character. See Boland, 115 Wash.2d at 577, 800 P.2d 1112. Our research has not revealed any cases in other jurisdictions dealing with the specific issue of whether discovery of a defendant's number by monitoring a third party's pager is an unconstitutional search under independent state grounds. 2 Therefore, we find that the subject is not local in character or of particular state interest. Since we find that the facts of this case do not support a finding that resort to independent state grounds is necessary, we now turn to an analysis of the issue on federal constitutional grounds.

The Fourth Amendment, like its Washington counterpart (article 1, § 7), protects a person's legitimate expectation of privacy from invasion by government action if the individual has shown that "he seeks to preserve [something] as private". Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). In United States v. Meriwether, 917 F.2d 955 (6th Cir.1990), the police, pursuant to a search warrant, seized a pager at the residence of a suspected drug dealer. When the defendant's number appeared on the pager, the police called him and arranged to sell him drugs. The court held that the monitoring of the pager did not constitute a "search" under the Fourth Amendment:

Here, appellant fails to show that he has sought to preserve a message as private by transmitting it into a paging receiver over which he has no control. Indeed, the Court "consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."

Meriwether, 917 F.2d at 959, citing Smith v. Maryland, 442 U.S. 735, 743-44, 99 S.Ct. 2577, 2582, 61 L.Ed.2d 220 (1979). The court, after stating that a party sending his message to a pager has not "expressed his subjective desire to preserve his privacy", held:

When one transmits a message to a pager, he runs the risk that the message will be received by whomever is in possession of the pager. Unlike the phone conversation where a caller can hear a voice and decide whether to converse, one who sends a message to a pager has no external indicia that the message actually is received by the intended recipient. Accordingly, when a person sends a message to a pager, he runs the risk that either the owner or someone in possession of the pager will disclose the contents of his message. Since the actual confidentiality of a message to a pager is quite uncertain, we decline to protect appellant's misplaced trust that the message actually would reach the intended recipient.

Id., at 959. Under Meriwether, there was no constitutional violation.

Wojtyna also claims RCW 9.73 was violated since the police, by monitoring the pager, intercepted a private communication. 3 RCW 9.73.030(1) states

it shall be unlawful for ... the state ... to intercept, or record any:

(a) Private communication transmitted by telephone, telegraph, radio, or other device between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated- , without first obtaining the consent of all participants in the communication.

In support of this argument, Wojtyna cites State v. Riley, 121 Wash.2d 22, 846 P.2d 1365 (1993), which involved a "line trap" placed by the phone company tracing Riley's "hacking activity" to his home. After noting that the statute did not define the term "private communication", the court resorted to the "ordinary and usual meaning" as defined in the dictionary and held

the "line trap" traced the hacking activity to, and discovered nothing more than, Riley's telephone number. A telephone number, unless it is itself communicated, does not constitute a "communication". Therefore, discovering Riley's telephone number via a tracer does not implicate RCW 9.73.030(1)(a).

Riley, 121 Wash.2d at 33, 846 P.2d 1365. The court then distinguished State v. Gunwall stating:

In Gunwall, this court held that a pen register records a "private communication" under RCW 9.73.... Although a pen register does not intercept spoken words, it does record an exchange of information--the dialing from one telephone number to another. A pen register is thus "comparable in impact to electronic eavesdropping devices in that it ... may affect other persons and can involve multiple invasions of privacy." Gunwall, [106 Wash.2d] at 69 . In contrast, all that is learned from a tracer is the telephone number of one party, the party dialing. A pen register may therefore be reasonably viewed as recording a "private communication", whereas a tracer may not.

Riley, 121 Wash.2d at 34, 846 P.2d 1365.

We find that Wojtyna's claim must fail. As in Riley, all that was learned from the pager was...

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