FILED
JUNE 8, 2021
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, ) No. 37976-1-III
)
Respondent, )
)
v. ) PUBLISHED OPINION
)
SCOTT EUGENE RIDGLEY, )
)
Appellant. )
PENNELL, C.J. — Washington’s privacy act, chapter 9.73 RCW, provides a method
for narcotics investigators to record private communications without obtaining either a
warrant or full-party consent. This “self-authorizing” provision of the privacy act allows
for flexibility, but it also demands strict adherence. Among other things, self-
authorization must be based on a written report specifying the names of the officers
authorized to intercept, transmit, and record the private communication.
During a narcotics investigation of Scott Ridgley, law enforcement obtained
two undercover recordings utilizing the privacy act’s self-authorizing provision.
The reports that accompanied the self-authorizations failed to specify the names of
all officers expected to be involved in the undercover recordings. By omitting this
information, the self-authorizing reports failed to meet the strict terms of the privacy
act. The authorizations were therefore invalid and evidence related to the undercover
recordings should have been suppressed from Mr. Ridgley’s trial.
No. 37976-1-III
State v. Ridgley
We remand this case to the trial court for a determination of whether introduction
of the undercover recordings prejudiced the outcome of Mr. Ridgley’s case.
FACTS
The Lewis County Joint Narcotics Enforcement Team (JNET) 1 suspected Scott
Ridgley of dealing methamphetamine. JNET officers organized two controlled buys and a
search at Mr. Ridgley’s residence to confirm their suspicions. For each of the two buys,
officers utilized a confidential informant equipped with a body wire. The informant
turned over methamphetamine after each controlled buy.
JNET did not obtain a warrant for the informant’s body wire. Instead, it relied on a
provision of Washington’s privacy act, sanctioning undercover narcotics recordings based
on self-authorization by a law enforcement agency. Detective Chad Withrow of the
Centralia Police Department prepared a report as part of his application for the self-
authorizations. Carl Nielsen, chief of police of the Centralia Police Department, signed
the authorizations. 2 Each of Detective Withrow’s reports identified “Detective Withrow,
1
The Centralia Police Department, Chehalis Police Department, and Lewis County
Sheriff’s Office cooperated to establish JNET.
2
As chief of police, Carl Nielsen was “responsible for administering and
managing the Centralia Police Department” and its three divisions, including special
operations. Clerk’s Papers at 91. JNET was organized under Special Operations.
2
No. 37976-1-III
State v. Ridgley
and/or any other officers participating in this investigation” as the officers authorized to
intercept, transmit, or record the communication. Clerk’s Papers (CP) at 43, 49. The
subsequent warrant for Mr. Ridgley’s residence referenced the wire intercepts.
The State charged Mr. Ridgley with two counts of methamphetamine delivery, one
count of methamphetamine possession with the intent to deliver, one count of first degree
unlawful firearm possession, and one count of maintaining a premises or vehicle for using
controlled substances. Prior to trial, Mr. Ridgley filed a motion to suppress. Among other
things, he argued the wire intercept authorizations were invalid because their
accompanying reports failed to name all the officers participating in the undercover
recordings. The trial court denied the motion. A jury then convicted Mr. Ridgley on all
counts except for the firearms charge. Mr. Ridgley timely appeals. 3
ANALYSIS
“Washington’s privacy act generally prohibits intercepting and recording any
private communications” without full consent of the parties. State v. Jimenez, 128 Wn.2d
720, 723, 911 P.2d 1337 (1996) (citing RCW 9.73.030). An exception applies in the
context of narcotics investigations. A law enforcement agency may self-authorize an
3
By agreement of the chief judges, Division Two of this court transferred this
appeal to Division Three pursuant to CAR 21(a) and RAP 4.4.
3
No. 37976-1-III
State v. Ridgley
undercover narcotics recording so long as the agency satisfies the criteria set forth in
RCW 9.73.230.
JNET relied on RCW 9.73.230 to authorize the recordings of Mr. Ridgley’s
conversations with the confidential informant. At trial and on appeal, Mr. Ridgley has
argued the State’s self-authorizations were invalid because they failed to meet the
requirements of RCW 9.73.230. Specifically, Mr. Ridgley argues the authorization reports
did not include the names of each and every officer authorized to intercept, transmit, and
record the undercover communications, as required by RCW 9.73.230(2)(c). Mr. Ridgley
argues the violation of RCW 9.73.230(2)(c) should have resulted in suppression of
evidence.
The issue raised by Mr. Ridgley involves statutory interpretation. When engaged in
statutory interpretation our review is de novo and our goal is to discern legislative intent.
Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). The
best source of legislative intent is the words used in the statute, along with context and
related statutes. State v. Barnes, 189 Wn.2d 492, 495-96, 403 P.3d 72 (2017).
The privacy act’s self-authorizing provision permits a chief law enforcement
officer, or their designee above the rank of first line supervisor, to authorize an
undercover recording without obtaining a warrant or full-party consent. RCW 9.73.230.
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No. 37976-1-III
State v. Ridgley
There are three statutory prerequisites for self-authorization. RCW 9.73.230(1)(a)-(c).
One of the prerequisites is a written report, prepared and signed at the time of the
authorization, that includes the information set forth at RCW 9.73.230(2)(a)-(f).
RCW 9.73.230(1)(c). Under the criteria at issue here, the report must “indicate[] . . . the
names of the officers authorized to intercept, transmit, and record the conversation or
communication.” RCW 9.73.230(2)(c).
Valid self-authorization demands strict compliance with the statute. State v.
Jimenez, 76 Wn. App. 647, 651-52, 888 P.2d 744 (1995) (Jimenez I), rev’d on other
grounds, 128 Wn.2d 720, 722, 911 P.2d 1337 (1996) (Jimenez II); State v. Costello,
84 Wn. App. 150, 154, 925 P.2d 1296 (1996); State v. Knight, 79 Wn. App. 670, 685,
904 P.2d 1159 (1995). In Jimenez I, this court held that an authorization report prepared
under RCW 9.73.230(2) must identify the specific officers authorized to intercept,
transmit or record a communication. 76 Wn. App. at 651-52.
The parties agree that the RCW 9.73.230 reports issued in Mr. Ridgley’s case did
not identify the authorized officers with the type of specificity required by Jimenez I.
As set forth above, the two reports identified one authorized officer, Detective Chad
Withrow, and employed a catchall phrase to include “any other” investigating officers.
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No. 37976-1-III
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CP at 43, 49. The probable cause statement attached to the report also did not clarify the
identity of the other officers.
Although the reports failed to comport with Jimenez I, the State claims we should
rule in its favor because Jimenez I was wrongly decided. We are not bound to follow the
decision in Jimenez I. In re Pers. Restraint of Arnold, 190 Wn.2d 136, 154, 410 P.3d
1133 (2018). Thus, we consider the merits of State’s arguments.
The State’s analysis focuses on the transitive verb “indicate.” RCW 9.73.230(2)
(“The agency’s chief . . . shall prepare and sign a written report . . . indicating . . . .”)
(emphasis added). According to the State, by definition “indicate” does not require the
object or objects that follow this verb to be listed “with exact precision and certainty.”
Resp’t’s Br. at 15. Instead, it is enough to provide a generalized statement, setting forth
the names of the officers “known at the time” of the report. Id. at 16.
The State’s interpretation is contrary to the plain wording of RCW 9.73.230.
The legislature did not state a self-authorizing report need only list the names of
authorized officers “if known.” This omission is telling because it contrasts with
RCW 9.73.230(2)(d), which addresses the requirement that a self-authorizing report
identify the target of an investigation. This subsection, unlike subsection (2)(c), states the
identity of the involved person must be listed only “if known.” RCW 9.73.230(2)(d).
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When the legislature uses different language in the same statute, we presume they
“intended different meanings.” In re Det. of McMahan, 1 Wn. App. 2d 373, 379, 405 P.3d
1012 (2017) (citing Densley v. Dep’t of Ret. Sys., 162 Wn.2d 210, 219, 173 P.3d 885
(2007)). Here, subsection (2)(d) allows a catchall for unknown names, but subsection
(2)(c) does not. In order to give effect to this different wording, we interpret subsection
(2)(c) to require a list of the names of all officers who will be involved in the intercept, as
contemplated by Jimenez I.
We agree with Jimenez I’s interpretation of RCW 9.73.230(2)(c). As a result, we
hold the intercept authorizations at issue in this case were invalid and subject to
suppression.
Evidence obtained in violation of the privacy act’s self-authorizing provision is
generally inadmissible at a criminal trial. RCW 9.73.050. However, a party or eyewitness
to an unauthorized recording is not necessarily prohibited from testifying as to what they
saw or heard. RCW 9.73.230(8).When “law enforcement officers make a genuine effort
to comply with” RCW 9.73.230, a violation of the statute will not prohibit introduction of
evidence unaided by the improperly obtained intercept or recording. Jimenez II, 128
Wn.2d at 726 (citing RCW 9.73.230(8)).
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No. 37976-1-III
State v. Ridgley
Mr. Ridgley agrees the officers in his case made a genuine effort to comply with
RCW 9.73.230. As a result, our ruling on the inadmissibility of the undercover recordings
does not invalidate all of the State’s evidence. Percipient witnesses, including the
confidential informant and possibly law enforcement, were still eligible to testify, so
long as their testimony was not formed or aided by the undercover recordings. 4
Where, as here, we have invalidated only a portion of evidence at trial based on
invalid recordings, remand is appropriate for the trial court to assess the effect, if any,
of the improperly admitted evidence on the defendant’s convictions, including the impact
on the State’s search warrants. Jimenez II, 128 Wn.2d at 726. If the admission of the
recordings is found to have been harmless, the convictions should be affirmed. If,
however, the admission of the recordings is deemed prejudicial, Mr. Ridgley will be
entitled to a new trial. 5
4
Because law enforcement officers were not involved in the undercover buys, they
would not be direct percipient witnesses of the two transactions. However, they likely
would be able to testify to their observations of the informant before and after the
undercover buys, including pre- and post-buy searches. Law enforcement would not be
able to testify as to information learned from listening to the undercover recordings.
5
Based on our disposition, we need not address Mr. Ridgley’s claim that he was
deprived of effective assistance of counsel based on counsel’s purportedly limited
understanding of what it meant for testimony to be “unaided” by information obtained in
violation of statute. See RCW 9.73.230(8). The scope of the suppression remedy can be
clarified on remand.
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No. 37976-1-III
State v. Ridgley
STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
Mr. Ridgley has submitted a pro se statement, asserting two additional grounds for
review. Appended to his statement are two documents that appear to have been received
in response to a request under the Public Records Act, chapter 42.56 RCW. Because these
documents are not part of the trial court record, they cannot be considered on appeal.
See State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). If Mr. Ridgley
wishes for this court to consider these two documents, the vehicle for doing so is a
personal restraint petition. Id.
The first issue raised by Mr. Ridgley is the claim that Chief Nielsen lacked
jurisdiction in Onalaska, Washington because he was a Centralia municipal police officer,
not a member of JNET. This contention fails because it is contrary to the trial court’s
findings. See CP at 95 (finding Chief Nielsen “was part of JNET as a member of the
Executive Board and had the ability to authorize a wire intercept in unincorporated Lewis
County”). Mr. Ridgley has not challenged the trial court’s findings. They are therefore
verities on appeal. See State v. Homan, 181 Wn.2d 102, 106, 330 P.3d 182 (2014).
Mr. Ridgley’s claim that Chief Nielsen lacked authority to authorize interceptions of
Mr. Ridgley’s communications fails.
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No. 37976-1-III
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The second issue raised by Mr. Ridgley is a complaint that the written reports
required by RCW 9.73.230 are missing from the record. This claim was not raised at trial.
It is unpreserved and we decline review. See RAP 2.5(a).
CONCLUSION
We hold the intercept authorizations at issue in this case were invalid and evidence
related to the undercover recordings should have been suppressed from Mr. Ridgley’s
trial. This matter is remanded to the trial court for a determination of the effect, if any,
of the improperly admitted undercover recordings on Mr. Ridgley’s convictions,
including the impact on the search warrant for Mr. Ridgley’s home. See Jimenez II,
128 Wn.2d at 726.
_________________________________
Pennell, C.J.
WE CONCUR:
______________________________
Fearing, J.
______________________________
Staab, J.
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