State v. Fjermestad

Callow, C.J.

— This case was certified to this court by the Court of Appeals pursuant to RCW 2.06.030(d) because of its broad public import. The issue presented is whether the use of an electronic body wire by detectives, without court authorization and in violation of Washington's privacy act, RCW 9.73, renders all evidence of the transaction inadmissible and thus mandates dismissal. We hold that it does and reverse the defendant's conviction.

The facts are uncomplicated. The Clark County Sheriff's office conducted a 7-month investigation which was aimed at arresting drug dealers.1 The operation was code named ROPED, which stands for Round up People Enterprising in Drugs. As part of the investigation, officers involved in the operation were required, as a matter of departmental policy, to wear "body wires" when they came into contact with suspected drug dealers. The purpose of wearing the wire was to ensure officer safety. The sheriff's office did not seek judicial authorization to transmit the conversation between the defendant and the officer. The sheriff's office was aware of the State's privacy act.

The Clark County Sheriff's office received several complaints about suspected drug activity in the Crown Park area of Camas. On April 23, 1987, the defendant was approached by a Clark County detective in this park and asked about the possibility of purchasing some marijuana. The defendant responded by asking the detective how much he was interested in buying. After discussing the matter for a few moments, the defendant and a friend left the park. They returned a short time later, at which time *830the defendant entered the detective's car and handed him a gram of marijuana in exchange for $10.

During the entire transaction the detective was wearing an electronic transmitter, or body wire. The transmissions were being sent to two other officers who were parked nearby, but out of sight. The transmitter enabled the two officers to hear what was going on in case their assistance was required. The conversation was not taped nor did the listening officers testify at the defendant's trial.

The defendant was charged with delivery of a controlled substance in violation of RCW 69.50.401(a); to wit: marijuana. Prior to a bench trial, the defendant moved to suppress all evidence obtained by police for violation of the privacy act, or alternatively, a dismissal pursuant to CrR 8.3(b) based on claimed misconduct of the police department. The trial court originally denied motions to suppress and to dismiss. After a bench trial, the defendant was convicted.

The defendant petitioned the trial court for reconsideration of the motions to suppress and to dismiss. On reconsideration, the trial court granted the motion to suppress the conversation between the defendant and the officer but denied the motion to dismiss. The bench trial was reopened and the defendant was found guilty based on the officer's visual observations. Judgment and sentence were entered and this appeal followed.

Washington's privacy act, RCW 9.73, at the time of the conduct in question, prohibited the interception or recording of private conversations unless consent was obtained (a) by all the parties involved in the conversation (RCW 9.73-.030) or (b) if judicial authorization was obtained (RCW 9.73.040). The statute made any information obtained in violation of RCW 9.73 inadmissible in civil or criminal cases.

The origin of Washington's privacy act dates back to 1909 when the Legislature enacted RCW 9.73.010 and *8319.73.020.2 In its original form, the privacy act made it unlawful to divulge information in regard to telegrams and also made it unlawful to open sealed letters.

In 1967, the Legislature enacted legislation which made it unlawful to electronically eavesdrop on private conversations without the consent of all the parties involved or unless the conversation fell within an enumerated exception. These exceptions specifically include matters involving a danger to human life, arson, riot or national security.

RCW 9.73.040, enacted in 1967,3 provides a mechanism for obtaining court authorization to intercept private conversations. In order to obtain court authorization in accordance with RCW 9.73.040, the following information must be supplied to a superior court judge upon a verified application of the State Attorney General or a county prosecuting attorney:

(a) There are reasonable grounds to believe that national security is endangered, that a human life is in danger, that arson is about to be committed, or that a riot is about to be committed, and
(b) There are reasonable grounds to believe that evidence will be obtained essential to the protection of national security, the preservation of human life, or the prevention of arson or a riot, and
(c) There are no other means readily available for obtaining such information.

RCW 9.73.040(1). This statute has been referred to as the "no consent" statute since the electronic eavesdropping it permits is not limited to situations where one of the participants to the communication or conversation has consented to the eavesdropping. State v. O'Neill, 103 Wn.2d 853, 863, 700 P.2d 711 (1985).

At the time RCW 9.73.040 was enacted, the Legislature added RCW 9.73.0504 which deals with admissibility of *832intercepted communications into evidence. RCW 9.73.050 states:

Any information obtained in violation of RCW 9.73.030 or pursuant to any order issued under the provisions of RCW 9.73.040 shall be inadmissible in any civil or criminal case in all courts of general or limited jurisdiction in this state, except . . . in a criminal action in which the defendant is charged with a crime, the commission of which would jeopardize national security.

Under RCW 9.73.090(1) certain emergency response personnel are exempt from the privacy act. For example, the act does not apply to police, fire, emergency medical service, emergency communication centers and poison control centers when they are recording incoming telephone calls. Additionally, police may videotape or record people who are in their custody provided they are informed of such recordings. RCW 9.73.090(l)(a), (b).

Section 2 of RCW 9.73.090, enacted in 1977,5 is referred to as the "one party consent statute". It allows electronic eavesdropping upon oral communications or conversations when authorized by the court, with the consent of one party to the conversation. O'Neill, at 863. RCW 9.73.090(2) provides:

It shall not be unlawful for a law enforcement officer acting in the performance of the officer's official duties to intercept, record, or disclose an oral communication or conversation where the officer is a party to the communication . . . Provided, That prior to the interception, transmission, or recording the officer shall obtain written or telephonic authorization from a judge or magistrate, who shall approve the interception, recording, or disclosure of communications or conversations with a nonconsenting party ... if there is probable cause to believe that the nonconsenting party has committed, is engaged in, or is about to commit a felony . . ..

The statute also mandates that an order obtained under this statute be for a reasonable and specified period of time and further authorization may only be granted for an additional period not to exceed 7 days. RCW 9.73.090(4). Additionally, RCW 9.73.120 requires that subsequent reports be *833filed with the Administrator for the Courts to assure that the system for court ordered electronic surveillance is being properly administrated. State v. Irwin, 43 Wn. App. 553, 718 P.2d 826, review denied, 106 Wn.2d 1009 (1986).

Each application to a superior court judge, for authorization to record a communication or conversation, shall be in writing upon oath or affirmation and contain detailed information, which includes:

(1) The authority of the applicant to make such application;
(2) The identity and qualifications of the investigative or law enforcement officers or agency for whom the authority to record a communication or conversation is sought and the identity of whoever authorized the application;
(3) A particular statement of the facts relied upon by the applicant to justify his belief that an authorization should be issued, including:
(a) The identity of the particular person, if known, committing the offense and whose communications or conversations are to be recorded;
(b) The details as to the particular offense that has been, is being, or is about to be committed;
(c) The particular type of communication or conversation to be recorded and a showing that there is probable cause to believe such communication will be communicated on the wire communication facility involved or at the particular place where the oral communication is to be recorded;
(d) The character and location of the particular wire communication facilities involved or the particular place where the oral communication is to be recorded;
(e) A statement of the period of time for which the recording is required to be maintained, if the character of the investigation is such that the authorization for recording should not automatically terminate when the described type of communication or conversation has been first obtained, a particular statement of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;
(f) A particular statement of facts showing that other normal investigative procedures with respect to the offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ;
(4) Where the application is for the renewal or extension of an authorization, a particular statement of facts showing the results thus far obtained from the recording, or a reasonable explanation of the failure to obtain such results;
*834(5) A complete statement of the facts concerning all previous applications, known to the individual authorizing and to the individual making the application, made to any court for authorization to record a wire or oral communication involving any of the same facilities or places specified in the application or involving any person whose communication is to be intercepted, and the action taken by the court on each application; and
(6) Such additional testimony or documentary evidence in support of the application as the judge may require.

RCW 9.73.130.

State v. Grant, 9 Wn. App. 260, 511 P.2d 1013, review denied, 83 Wn.2d 1003 (1973), cert. denied, 419 U.S. 849 (1974) determined that the privacy act does not apply to excluding the testimony of a police officer who participates in an illegally transmitted or recorded conversation when that officer is unaware of the illegality. In Grant, the court explained that "[h]ad [the detective] been a party to the illegal recording and taping, a different question would be presented." Grant, at 267. That question is now presented.

In the instant case, the Clark County Sheriff's office failed to obtain the consent of the defendant nor did the department obtain a court order authorizing the use of the body wire. Unlike the situation in Grant, the undercover officer was fully aware that he was transmitting the conversation.

State v. Wanrow, 88 Wn.2d 221, 559 P.2d 548 (1977) held that the primary purpose of the privacy act is the protection of the privacy of individuals from public dissemination (even in the course of a public trial) of illegally obtained information. Wanrow, 88 Wn.2d at 233. We have also held that illegally obtained information would be excluded whether the information was disseminated by introducing the tape recordings or the testimony of the officer who participated in the conversation. State v. Williams, 94 Wn.2d 531, 543, 617 P.2d 1012, 24 A.L.R.4th 1191 (1980).

The State argues that RCW 9.73 is strictly limited to the interception or recording of private conversations and does *835not limit the testimony as to visual observations or assertive gestures. The State contends that the use of an unauthorized electronic transmission does not subject all the information obtained to the exclusionary rule of RCW 9.73.050. The State suggests that the only matters subject to exclusion are those which were improperly transmitted and recorded.

The defendant argues that the trial court was correct in finding the verbal electronic transmission of the conversations were in violation of the privacy act and that the trial court properly excluded the verbal portions of the conversation between the officer and herself. The defendant contends that the exclusionary rule of RCW 9.73.050 is all encompassing to include any information obtained while using unauthorized electronic broadcasts, including visual observations and assertive conduct. We agree.

Under RCW 9.73.050 the term "[a]ny information" is not defined nor has it been necessary to determine its statutory meaning until now. Whenever we are faced with a question of statutory interpretation we look to the plain meaning of the words used in the statute. A nontechnical statutory term may be given its dictionary meaning. State v. Olson, 47 Wn. App. 514, 516-17, 735 P.2d 1362 (1987). Furthermore, statutes should be construed to effect their purpose and unlikely, absurd or strained consequences should be avoided. State v. Stannard, 109 Wn.2d 29, 742 P.2d 1244 (1987). Thus, Webster's II New Riverside University Dictionary (1984) defines the word "any" as: "the whole amount of: all." The same dictionary defines "information" as: "the act of informing or state of being informed, knowledge of a particular event or situation." Since the dictionary meaning of "any" is the whole amount, and the meaning applied to "information" includes the act of informing, we conclude that the term "any information" as used in RCW 9.73.050 includes visual observations as well as assertive gestures.

Here the defendant's conversation was transmitted to other police officers without the defendant's consent or *836court authorization and with the full knowledge of the undercover detective. None of the statutory exceptions apply which would render the evidence admissible. The statute plainly states " [a]ny information obtained in violation of RCW 9.73.030 . . . shall be inadmissible in any . . . criminal case". As we read the statute, it expresses a legislative intent to safeguard the private conversations of citizens from dissemination in any way. The statute reflects a desire to protect individuals from the disclosure of any secret illegally uncovered by law enforcement. Since the police acted in violation of RCW 9.73 we must exclude any information obtained by them while they were violating the statute.

We are bound to interpret the proclamations of the Legislature and not create an exception in the law where there is none. RCW 9.73 has no provisions for an undercover police operation to use electronic eavesdropping devices to transmit conversations without first obtaining court authorization, no matter how laudable the reasons. If the supervisors were concerned about officer safety, as they should be, they could have presented an application to a superior court judge as provided in RCW 9.73.090(2). The failure to do so went outside the scope of the State's privacy act which deliberately places the court system between the police and private citizen to protect against this type of intrusion.

We hold that when an officer knowingly transmits a private conversation, without court authorization or without the consent of all the parties, any evidence obtained, including simultaneous visual observation and assertive gestures, is inadmissible in a criminal trial. This decision does not hamstring the goals of law enforcement, but only preserves the integrity of the police and the privacy of individuals.

The statute makes clear provisions for obtaining court authorization based on probable cause requiring an independent review of the facts by a superior court judge. If after reviewing the application, the judge does or does not *837issue the order, then the goals and policy of the Legislature are met. However, once the police step outside the boundaries delineated by the law, we have no choice but to make inadmissible any information obtained.

The defendant has raised two other issues on appeal. The first is whether the trial court abused its discretion by not dismissing the charges pursuant to CrR 8.3(b). The second deals with the sufficiency of the evidence to support a conviction for delivery of a controlled substance. These issues are moot because of our holding that any information obtained in violation of the privacy act is inadmissible.

The conviction is reversed.

Utter, Brachtenbach, Dolliver, and Smith, JJ., concur. Andersen, J., concurs in the result.

The transactions in question all occurred prior to the passage of RCW 9.73-.200 et seq. See Laws of 1989, ch. 271. The applicable law is that in effect on April 23, 1987.

Laws of 1909, ch. 249, §§ 410, 411, p. 1021.

Laws of 1967, 1st Ex. Sess., ch. 93, § 2, p. 1821.

Laws of 1967, 1st Ex. Sess., ch. 93, § 3, p. 1822.

Laws of 1977, 1st Ex. Sess., ch. 363, § 3, p. 1675.