(concurring in part, dissenting in part) — I concur with the majority insofar as it concludes that the conversations between 12 of the defendants and the police informant that took place in front of third parties or in a public thoroughfare were not private conversations and, therefore, find no protection in RCW 9.73, Washington’s privacy act.
However, in regard to the conversations that were recorded between the remaining four defendants and the informant, after each of those defendants entered Glass’s car and was alone with him, I find I disagree with the majority’s conclusion that these conversations were not private. I also do not believe that the recordings of those private conversations were properly authorized by a judge and, as a consequence, were not admissible in evidence. I, therefore, dissent to the portion of the majority opinion that affirms the convictions of defendants Piggee, T.L.C., Harris, and C.R.G., the four individuals whose conversations were recorded as they sat alone with the informant inside the informant’s car.
Private Nature of the Conversations
On the issue of whether these four conversations were "private,” I find the majority’s reliance on the fact that the interaction between Glass and these defendants was visible to any passersby particularly unpersuasive. The majority compares this to the circumstances in State v. Drumhiller, 36 Wn. App. 592, 675 P.2d 631, review denied, 101 Wn.2d 1012 (1984), where the defendants were consuming controlled substances in front of a picture window. There, the Court of Appeals rightly concluded that "objects, activities, or statements that he [the defendant] exposes to the 'plain view’ of outsiders are not 'protected’ because no intention to keep to himself has been exhibited.” Drumhiller, 36 Wn. App at 595 (quoting Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring)). The problem with this analogy is that the four defendants whose *234conversations took place in the car where they were alone with Glass did not expose their statements to outsiders. Unlike the drug activity in Drumhiller, which could be observed from outside the house, the conversations at issue herein could not be heard from outside the car. Each defendant exhibited the intention to keep to himself by entering the car where passersby would be unable to hear the conversation that ensued.20
The majority emphasizes that these four defendants either expressly or implicitly agreed to provide Glass with cocaine while standing in plain view on the street before entering the more private environment of the car. The majority seems to suggest that this public initiation of the conversation somehow diminishes the private character of any subsequent conversation. I disagree. It seems more logical to conclude that when the defendants deliberately moved off a public thoroughfare and into an enclosed space to converse, that conversation was intended to be private.
The final factor influencing the majority is that Glass was a stranger to each of these defendants. While the lack of any preexisting relationship may, in certain circumstances, make it less reasonable for a person to expect that any confidences shared between the parties will be respected, it seems unlikely that the Legislature intended to exclude all conversations between people in business transactions simply because they were strangers. If it had, it would have been simple enough to draft such a limitation.
Authorization to Record
Because I would hold that the conversations of these *235four defendants were private and thus protected by the privacy act, it is necessary for me to address an issue not confronted by the majority. That issue is whether these recordings were properly authorized by a judge.
As the Court of Appeals observed in the consolidated appeals by 10 of these defendants, this state’s privacy act was not intended to authorize judges to grant "a 'roving commission’ to randomly record conversations with any nonconsenting party.” State v. D.J.W., 76 Wn. App. 135, 145, 882 P.2d 1199 (1994), review granted, 126 Wn.2d 1008 (1995).21 Before the recording of any private conversation may be authorized, a judge must find that "there is probable cause to believe that the nonconsenting party has committed, is engaged in, or is about to commit a felony.” RCW 9.73.090(2). Although the probable cause determination need not be based on constitutional probable cause principles, the reviewing court is " 'to decide if the facts set forth in the application were minimally adequate to support the determination that was made.’ ” State v. Knight, 54 Wn. App. 143, 150-51, 772 P.2d 1042 (quoting United States v. Scibelli, 549 F.2d 222, 226 (1st Cir.), cert. denied, 431 U.S. 960 (1977)), review denied, 113 Wn.2d 1014 (1989).
The foundation of a judge’s probable cause determination must be a finding of compliance with RCW 9.73.130. That statute provides that an application for authority to record communications or conversations is to contain a "particular statement of the facts relied upon by the applicant to justify his belief that an authorization should be issued.” RCW 9.73.130(3). The statement is to include: the identity, if known, of the person whose conversation is to be recorded; the details as to the particular crime that has been or is about to be committed; the type of communica*236tion or conversation that is to be recorded; and a showing of "probable cause” to believe that such communication will occur at the place where the recording is to take place. In addition, it is to set forth the location and manner of the recording, the length of time the recording is to be maintained, and facts showing that other normal investigative procedures have been tried and failed. RCW 9.73.130(3)(a)-(f).
The application that was presented to the judge who authorized the recordings of the private conversations between the police informant and prospective defendants did not set forth facts that are minimally sufficient to justify a recording of those conversations. The application, which was presented by veteran Seattle Police Department Captain William Bryant, merely indicated that the informant who was to be utilized in the so-called "Operation Hardfall” had been involved in a similar operation in California, that this informant had successfully purchased drugs in two of the areas designated as "high narcotics trafficking locations,” and that there was probable cause to believe that "street traffickers dealing drugs in high narcotics trafficking areas of Seattle and unincorporated King County are about to commit” violations of the controlled substances act. Clerk’s Papers at 98, 93. Rather than demonstrating the ineffectiveness of other investigative techniques that may have been employed, the application indicated only that the recording of these conversations was necessary for the safety of the informant and because his credibility would be subject to attack.
The application here was not a "particular statement of the facts” and, therefore, did not justify the authorization for recording. Specifically, it was deficient because it gave the issuing judge an inadequate and overly generalized description of the geographic areas where the informant would be recording conversations and it did not name or identify the parties whose conversations were to be recorded. Although an application for a recording needs *237only to describe the nonconsenting parties with "reasonable certainty under the circumstances,” RCW 9.73.090(5), the application with which we are here concerned did not describe the persons whose conversations were ultimately recorded with any degree of certainty.22 It merely said that the informant was to "drive through the high narcotics trafficking areas referred to earlier [SODAs]23 for about a two hour period. He will purchase narcotics in transactions initiated in these areas or within 1,000 feet of their boundaries.” Clerk’s Papers at 97. According to the application, the recording equipment was to be in "continual operation” throughout the process. Clerk’s Papers at 97.
While judges who authorize recordings pursuant to the privacy act have considerable discretion to determine whether the act’s safeguards have been satisfied, the judge’s discretion is not unbridled. Fundamentally, the law enforcement officer received precisely the "roving commission” that the Court of Appeals warned against in State v. D.J.W. The authorization allowed the police informant to record conversations he held with anyone who approached him or entered his car in a geographical area that included a large portion of downtown Seattle, and several other large areas of King County including portions of West Seattle, North Seattle and the Central District.24 Such a broad license to record private conversations is, in my judgment, beyond the pale of the privacy act. I would, therefore, hold that the recordings of the private conversations with Piggee, T.L.C., Harris, and C.R.G. that took place in the informant’s car were *238improperly authorized and, therefore, should have been suppressed. RCW 9.73.050.25
Johnson and Madsen, JJ., and Pekelis, J. Pro Tern., concur with Alexander, J.
The Court of Appeals disagreed, "find[ing] no evidence [to] suggest[ ] that those Appellants who entered the automobile did so out of a desire to keep the conversation private. Rather, they entered the automobile because doing so was necessary to complete the transaction with Glass, who remained inside the automobile at all times during the recorded transactions.” State v. D.J.W., 76 Wn. App. 135, 142 n.2, 882 P.2d 1199 (1994), review granted, 126 Wn.2d 1008 (1995). The court does not explain why it was "necessary” for these defendants to enter the car in order to complete the transaction when others were able to do so from outside the car.
"Operation Hardfall” resulted in charges being brought against approximately 100 defendants in Kang County Superior Court. State v. D.J. W. is a consolidated appeal by 10 of those defendants. The appeals of six other defendants whose convictions came about as a result of Operation Hardfall were consolidated with the appeals of the defendants in State v. D.J.W. See Majority Op. at 220.
Defendants Piggee, T.L.C., Harris and C.R.G. were not named in the application. They were merely swept up in the wide net cast by the judge who issued the authorization. Indeed, the application did not name any of the approximately 100 defendants who were charged with oífenses as a result of Operation Hardfall.
See Majority Op. at 216 n.3.
See Majority Op. at 216.
RCW 9.73.050 provides in part: "Any information obtained in violation of RCW 9.73.030 . . . shall be inadmissible.”