State v. Kipp, 317 P.3d 1029

William Kipp was secretly recorded by his brother-in-law during a ~10-minute kitchen conversation about allegations that Kipp molested his nieces; Kipp did not consent to recording.
Kipp moved to suppress the recording under Washington’s Privacy Act (RCW 9.73.030); the trial court accepted undisputed facts without an evidentiary hearing and admitted the tape.
A jury convicted Kipp of two counts of rape of a child (2nd degree) and one count of child molestation (2nd degree); Kipp appealed the suppression ruling.
The Court of Appeals affirmed, applying a substantial-evidence standard and rejecting prior Washington precedent that allows de novo review where facts are undisputed.
The Washington Supreme Court granted review, held that when facts are undisputed the question whether a communication is “private” is a legal question reviewed de novo, and concluded the recorded conversation was private and should have been suppressed; conviction reversed and remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the kitchen recording was a “private conversation” under the Privacy Act	Kipp: the conversation was private (subjective intent + reasonable expectation) and recording violated RCW 9.73.030	State: subject matter (confession of molestation) and location (kitchen/common area) made expectation of privacy unreasonable	Held: private — Kipp had subjective intent and a reasonable expectation of privacy; recording should have been suppressed
Standard of appellate review for privacy determinations when facts are undisputed	Kipp: where facts undisputed, privacy is a question of law reviewed de novo (Clark precedent)	State/Ct. App.: apply substantial-evidence (abuse-of-discretion) standard used in criminal suppression reviews	Held: de novo review applies when facts are undisputed; statutory interpretation and legal conclusion warrant independent review
Relevance of relationship and role of nonconsenting party	Kipp: family relationship supports reasonable expectation of privacy; accused status does not negate protection	State: accused’s incriminating statements should lessen expectation; family relation irrelevant given seriousness	Held: relationship (family) supports expectation; accused status alone does not eviscerate Privacy Act protections
Whether error was harmless	N/A — State did not argue harmlessness at Supreme Court	N/A	Held: case remanded; suppression error not analyzed for harmlessness because State did not brief it

State v. Clark, 129 Wn.2d 211 (Wash. 1996) (establishes test: subjective intent + reasonable expectation; where facts undisputed, privacy may be decided as a matter of law)
State v. Faford, 128 Wn.2d 476 (Wash. 1996) (private expectations protect incriminating communications; evidence from privacy violations inadmissible)
State v. Townsend, 147 Wn.2d 666 (Wash. 2002) (describes Washington’s Privacy Act as among the most restrictive)
State v. Christensen, 153 Wn.2d 186 (Wash. 2004) (discusses statutory history and privacy protections for communications)
Kadoranian v. Bellingham Police Dep’t, 119 Wn.2d 178 (Wash. 1992) (civil summary-judgment context applying de novo review where facts undisputed)
State v. Hill, 123 Wn.2d 641 (Wash. 1994) (rejects routine de novo review in criminal suppression matters; emphasizes deference to trial factfinding)
State v. Knapstad, 107 Wn.2d 346 (Wash. 1986) (recognizes summary-judgment–like posture when material facts are undisputed in criminal pretrial motions)
Ornelas v. United States, 517 U.S. 690 (U.S. 1996) (federal guidance that certain legal reasonableness determinations may be reviewed de novo despite appellate deference to facts)