Opinion
No. 56772-1-I.
May 7, 2007.
Appeal from a judgment of the Superior Court for King County, No. 05-1-04966-5, Steven C. Gonzalez, J., entered August 5, 2005.
Affirmed by unpublished opinion per Coleman, J., concurred in by Ellington and Dwyer, JJ.
Antoine Wilson appeals his convictions for violation of a no-contact order and witness tampering, arguing that the trial court erred in admitting a portion of a recorded telephone conversation he had with the protected party of the no-contact order. Wilson argues that he did not consent to the recording, and thus, it should have been excluded as violating Washington's privacy act. The State argues that because the conversation was recorded on an answering machine and Wilson had heard the machine's introductory message and knew that it would continue to record even after someone picks up the phone, he impliedly consented to the recording. Because Wilson was familiar with the functions of the answering machine, we conclude that he impliedly consented to the recording by conversing after he knew the machine had started to record.
FACTS
Wilson lived with Kristi Herold and her son for approximately 18 months while he dated Herold. One evening Herold went out with a friend, leaving Wilson at home with her son. She returned early the next morning, and Wilson was angry with her for staying out late and suggested that she had been out with another man. Wilson and Herold began fighting, and Herold called 911. Police arrived and arrested Wilson.
A police officer faxed to a judge a temporary no-contact order protecting Herold and a copy of the order to the jail where Wilson had been transported. The following morning, Wilson appeared in court, where he was formally served with the no-contact order. Herold called the police that day to report that Wilson had contacted her and also that he had taken money from the home before he was arrested.
Wilson continued to contact Herold repeatedly from jail and refused to return the money to Herold unless she recanted her statement to the police and told them to drop the charges. One of the many phone calls was recorded by Herold's answering machine. The answering machine had started before Herold picked up the phone, and a jail employee testified that based on the operation of the jail phone system, Wilson would have heard the recorded message telling him to leave a message. After the message finished, the recorded message from the jail played, informing Herold how to accept the call. Herold accepted the call and began talking with Wilson. Because the answering machine had already started, the rest of the conversation was recorded. Herold did not turn off the answering machine because she was not near the machine, and she testified that she generally turned off the machine only if she was near it.
Wilson denied hearing the answering machine's introductory message, but the jail employee testified extensively regarding the functions of the jail telephone system and stated that the answering machine introduction would have been heard by Wilson. The trial court found that based on the jail employee's testimony, Wilson had heard the introduction. See Verbatim Report of Proceedings (July 7, 2005) at 39-40.
Based on this call and many others, the State charged Wilson with eight counts of domestic violence felony violation of a no-contact order and one count of tampering with a witness. Wilson made a pretrial motion to suppress the answering machine recording of his conversation with Herold, claiming that the recording violated Washington's privacy act. The trial court ruled that a portion of the recording was admissible because Wilson impliedly consented to its recording. In its oral ruling, the trial court explained:
THE COURT: As far as the telephone conversation in question, it is clear that the caller, Mr. Wilson, knew that an answering machine had initially picked up and that once the person he was calling accepted charges, that the machine might well still have been on, since there was no interruption. I don't think it's reasonable to assume, however, that he understood the whole conversation was being recorded or that he consented to that. Therefore, I am granting the motion to suppress starting with line four on page three.
Verbatim Report of Proceedings (VRP) (July 7, 2005) at 40. When the State asked the court to clarify its ruling, it responded:
THE COURT: I believe that [Wilson] had a reasonable expectation that if the answering machine was still on that she would have traveled to it and turned it off, and that's about at least — may well have taken longer, but I think it's reasonable at that point he should have expected the machine to have been turned off.
VRP (July 7, 2005) at 41.
The jury convicted Wilson as charged, and the court imposed a standard-range 60-month sentence. Wilson timely appealed.
ANALYSIS
Wilson argues that because he did not consent to being recorded on Herold's answering machine, the trial court erred in admitting part of the conversation. The State argues that Wilson impliedly consented because he knew how the answering machine worked and heard the machine's message before he began talking. Under the State's argument, the entire conversation — not just the portion admitted by the trial court — should have been admitted.
Washington's privacy act states that it is generally unlawful to record a private communication transmitted by, inter alia, telephone without the consent of all participants in the communication. RCW 9.73.030(1)(a). Evidence obtained in violation of the statute is inadmissible. RCW 9.73.050. Typically the party who seeks to record a conversation must obtain express consent, but courts have found implied consent under various circumstances. For example, a court concluded that a recorded answering machine message was admissible because the appellant knew his message would be recorded and therefore had no reasonable expectation of privacy. In re Marriage of Farr, 87 Wn. App. 177, 940 P.2d 679 (1997). In State v. Modica, 136 Wn. App. 434, 450, 149 P.3d 446 (2006), a court concluded that where both parties to a conversation heard a recorded message alerting them that the call was being recorded and the parties nevertheless conversed, the parties have consented for purposes of the privacy act.
Wilson asserts that the conversation recorded on Herold's answering machine was private — thus implicating the privacy act — and argues that he did not consent to the recording. The State argues — if the conversation is presumed to be private — that because Wilson heard the announcement at the start of the answering machine message and was familiar with how the machine worked, he knew the machine was recording and therefore impliedly consented to the recording. Because of his familiarity with the machine, it can be inferred that he knew that the machine would continue to record the conversation even once Herold picked up the phone. And because he never had any indication that she had turned off the machine, the State argues that Wilson impliedly consented to the recording during the entire conversation, not just the first section as arbitrarily admitted by the trial court.
The State argues in its brief that an inference that Wilson knew Herold's machine would continue to record is not necessary because he, in fact, testified that he knew the machine was on when he was speaking with Herold. See Brief of Respondent, at 30. But the State's citation to Wilson's testimony is misleading because it cites to Wilson's testimony about his mother's answering machine, not about Herold's answering machine. Herold testified that Wilson, because he had lived with her for more than a year, was very familiar with the workings of the answering machine and often used it himself. She also testified that she regularly left the machine recording if she picked up the phone, was not near the machine to turn it off, and would stop the recording only if she happened to be near the machine. Therefore, because Wilson did not directly testify that he was familiar with the functions of Herold's answering machine, an inference is necessary, and such an inference is reasonable under these circumstances.
Wilson agrees that the trial court's distinction between the first section and the rest of the conversation is arbitrary, but argues that he did not consent to any recording — during the first section or at any other point in the conversation. He claims it was reasonable for him to assume that once Herold picked up the phone, she would turn off the answering machine. Herold testified that if she is near the machine when she picks up a call, she turns it off — but in this case she was not near the machine, a fact imperceptible to Wilson. VRP (July 7, 2005) at 12.
Because Wilson heard the answering machine's introductory message and knew the machine had started recording, was familiar with how the machine operated given his own regular use of the machine, and was given no indication that the machine had been turned off, we conclude that Wilson impliedly consented to the recording of this conversation. The trial court did not need to suppress any part of the recording because Wilson had no reason to think that the recording had been stopped at any point in the conversation. Thus, we conclude that the recording was properly admitted and affirm Wilson's conviction.