Opinion
No. 57260-1-I.
April 23, 2007.
Appeal from a judgment of the Superior Court for Whatcom County, No. 05-1-00131-6, Steven J. Mura, J., entered November 15, 2005.
Affirmed by unpublished opinion per Baker, J., concurred in by Agid and Ellington, JJ.
Jesus Barron appeals the introduction at trial of a transcript of a recording made pursuant to RCW 9.73.230. The statute allows law enforcement to record a private communication without a judicial warrant when one party to the conversation has consented to the recording, and probable cause exists to believe that the communication involves the manufacture, delivery, or sale of controlled substances. We affirm.
I.
On January 14, 2005, the Northwest Regional Drug Task Force conducted a controlled purchase of cocaine from Barron in Whatcom County. Although the cocaine field-tested positive and was impounded, Barron was not arrested at that time. One week later, Barron called Detective Mitchelson, the undercover detective who had purchased the cocaine from him, and arranged to meet her to sell her a further half ounce of cocaine for $ 400. Following the conversation with Barron, Mitchelson was fitted with a wire to record the transaction.
Mitchelson met Barron a half hour later in Barron's rental car, and purchased the cocaine. After completing the sale, Barron drove off, and was subsequently stopped and arrested.
Barron waived his right to a jury trial and agreed to be tried by the court on the police reports and the transcript of the wire recording. He also moved to suppress the recording, arguing that it was not based on sworn testimony and did not establish the requisite probable cause. The court denied his motion to suppress.
Barron was convicted of one count of unlawful delivery of a controlled substance, and one count of unlawful possession of a controlled substance with intent to deliver.
II.
Challenges to the constitutionality of legislation are reviewed de novo. The decision to admit evidence lies within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Unchallenged findings of fact entered following a suppression hearing are verities on appeal, and we review conclusions of law in an order pertaining to suppression of evidence de novo.
City of Fircrest v. Jensen, 158 Wn.2d 384, 389, 143 P.3d 776 (2006).
State v. Brown, 132 Wn.2d 529, 571-572, 940 P.2d 546 (1997).
State v. Gaines, 154 Wn.2d 711, 716, 116 P.3d 993 (2005).
Under the federal constitution, there is no search when one party consents to the interception and recording of a private conversation. The same is true under the Washington constitution. Where one participant in a conversation has consented to the recording of a conversation, the recording does not violate article I, section 7 of the state constitution.
U. S. v. White, 401 U.S. 745, 751-52, 91 S. Ct. 1122, 28 L. Ed. 2d 453 (1971).
State v. Salinas, 119 Wn.2d 192, 197, 829 P.2d 1068 (1992).
State v. Clark, 129 Wn.2d 211, 221, 916 P.2d 384 (1996).
Washington provides greater statutory protection to private conversations than either the federal or state constitutions. The Privacy Act, chapter 9.73 RCW, is designed to protect private conversations from governmental intrusion. The act generally requires a court order prior to the interception of any private communication. RCW 9.73.090, for instance, allows police to intercept and record private conversations where one party to the conversation is a police officer or one of the parties gives consent, provided that judicial authorization is obtained prior to the interception or recording.
Clark, 129 Wn.2d at 232.
In 1989, the Legislature carved out an exception to the general requirement that the recording of private conversations requires prior judicial approval. Noting the increasing danger posed to law enforcement officers by drug interdiction, and the increasing violence and sophistication of drug dealers, the Legislature allowed conversations regarding illegal drug operations to be intercepted and recorded without prior judicial approval, subject to certain conditions. RCW 9.73.230 states that a chief law enforcement officer (or specified designee of a certain rank) may, as part of a criminal investigation, authorize the interception, transmission, or recording of a conversation where one party to the conversation has given consent, and probable cause exists to believe the conversation will involve illegal drug trafficking. The police must submit a report detailing the interception to a judge within fifteen days for review. The court must then make an ex parte review of the authorization, but not of the evidence, and ensure that the statutory procedures and requirements have been met. Absent from the statute is any requirement of an oath or affirmation by any witness or law enforcement officer. The statute does impose felony penalties and fines on any person or agency who intentionally intercepts, transmits, or records, or who intentionally authorizes the interception, transmission, or recording of a conversation in violation of the statute.
Barron argues that RCW 9.73.230 violates the separation of powers doctrine by requiring the courts to rely on unsworn statements when reviewing the factual sufficiency of probable cause.
RCW 9.73.230 has survived constitutional attack before. State v. Salinas held that RCW 9.73.230 does not violate article 1, section 7 of the Washington constitution. Salinas was arrested while purchasing cocaine from an informant wearing a wire. Salinas argued that authorizing the use of a wire under RCW 9.73.230 violated article 1, section 7, which states that no person shall be disturbed in his private affairs, or his home invaded, without authority of law. The court noted that it was well settled that under our constitution there is no violation of the right of privacy where one party consents to a conversation being recorded.
119 Wn.2d 192, 829 P.2d 1068 (1992).
Salinas, 119 Wn.2d at 197.
Salinas, 119 Wn.2d at 197.
Subsequently, the court in State v. Knight rejected the argument that RCW 9.73.230 violates separation of powers and due process because it allows law enforcement officers, rather than a neutral magistrate, to determine probable cause. That argument, the court said, "'put the cart before the horse.'"
79 Wn. App. 670, 904 P.2d 1159 (1995).
Knight, 79 Wn. App. at 677.
Knight, 79 Wn. App. at 677 (quoting Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 298, 840 P.2d 860 (1992)).
The court reiterated that there is no search under the federal and Washington constitutions when one party consents to an interception and recording of a private conversation. Consequently, the court held, there was no requirement that a magistrate determine probable cause. The police took action, the court noted, using a statute that imposes standards more stringent than those imposed by either the federal or state constitutions.
Knight, 79 Wn. App. at 677-78.
Knight, 79 Wn. App. at 678.
Knight 79 Wn. App. at 678.
Barron points to the Salinas court's mention of an affidavit offered in the authorization report. But Salinas does not stand for the proposition that reports made pursuant to RCW 9.73.230 must be under oath.
One party consent recordings are not a search, and do not implicate the constitution. If no oath is required by officers or witnesses in authorizing a recording under RCW 9.73.230, none is required for judicial review. Additionally, the Legislature plainly contemplated ensuring the veracity of probable cause findings by stipulating criminal sanctions and fines for those who might abuse the statute.
Where the constitutionality of a statute is challenged, that statute is presumed constitutional and the burden is on the party challenging the statute to prove its unconstitutionality beyond a reasonable doubt. Courts are generally hesitant to strike a duly enacted statute unless fully convinced that the statute violates the constitution. We reject Barron's argument that RCW 9.73.230 violates the separation of powers doctrine.
Tunstall v. Bergeson, 141 Wn.2d 201, 220, 5 P.3d 691 (2000).
State v. Clinkenbeard, 130 Wn. App. 552, 560, 123 P.3d 872 (2005).
Barron also contends that his due process rights were violated when the recording was authorized based on unsworn evidence. In support of his argument he cites to Nirk v. City of Kent Civil Service Commission. But the comparison to the present case is unpersuasive. Nirk involved witnesses at a discharge hearing who were not sworn when giving testimony. The court held that in a permanent deprivation hearing, witnesses must be sworn. At the hearing in Nirk, the party to be affected was given reasonable notice of the hearing and an opportunity to appear in person or by an attorney.
30 Wn. App. 214, 633 P.2d 118 (1981).
Nirk, 30 Wn. App. at 220.
[W]e hold that when considering the importance of the oath, the significant interests at stake in a discharge hearing, the legislative provision authorizing the administration of oaths, and the minimal inconvenience that such a requirement would cause, due process requires that witnesses be sworn at a civil service discharge hearing.
Nirk, 30 Wn. App. at 221 (emphasis added).
The present case does not involve a permanent deprivation at a discharge hearing. There was no requirement that the party to be affected be notified and granted an opportunity to be heard. Far from authorizing the administration of an oath, RCW 9.73.230 notably dispenses with such a requirement.
Barron insists that due process is violated when a person has a right not to be recorded and that right is taken from him based on unsworn evidence. The Knight court dispatched the due process argument as it dispatched the separation of powers argument: Where one party consents to the interception and recording, there is no search and thus no violation of the constitution. There was no violation of Barron's due process rights.
Knight, 79 Wn. App. at 677-78.
Finally, Barron argues that the information presented in the application did not establish probable cause. His argument rests on an incomplete reading of the form authorizing the wire. He addresses the issue of the first controlled buy on January 14, 2005, and argues that the description of the buy gives a magistrate insufficient factual detail to independently evaluate the underlying facts supporting a finding of probable cause. He emphasizes the fact that the officer signing the authorization was relying on hearsay information provided by a fellow officer. He points to the Aguilar-Spinelli test used to determine the veracity of an informant's tip, and cites State v. Smith and State v. Sieler as support.
Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); Spinelli v. U.S., 393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).
110 Wn.2d 658, 756 P.2d 722 (1988).
95 Wn.2d 43, 621 P.2d 1272 (1980).
Both Smith and Sieler dealt with civilian informants, not police officers as in the present case. A police officer is generally presumed to be a reliable source. Where police officers are acting together as a unit, cumulative knowledge of all the officers involved in the arrest may be considered in deciding whether there was probable cause to apprehend a particular suspect.
State v. Matlock, 27 Wn. App. 152, 155, 616 P.2d 684 (1980).
State v. White, 40 Wn. App. 490, 493, 699 P.2d 239 (1985).
Barron's argument ignores his call to Detective Mitchelson which initiated the second controlled buy. Such a significant fact cannot be overlooked in determining probable cause. The call itself provided probable cause, even without the support of the other information contained in the authorization. The information presented in the application was sufficient to establish probable cause.
AFFIRMED.
WE CONCUR: