*1 30, 1985. May 50372-9. En Banc. No. Respondent, Chong v. Washington, The State Petitioners. al, O'Neill, et Sim *2 Connelly I. and Levenson, Ellsworth Herrmann & petitioners Jeffrey O'Neill Fowler. Gross, for D. petitioner Bennett. for Hoff, Neil J. petitioner Buckley, Chu. for C.
James Prosecuting Attorney, Quinn- Chris Griffies, H. William Corey- Deputy, L. Barbara Criminal Brintnall, Chief Deputies, Rex N. Horne, A. Boulet and Gerald Munger, respondent. Deputy, Assistant J. Andersen, Case Facts bribery constitutionality stat-
At issue here is recordings validity con- made of and the of electronic ute during recordings, relating made bribes. The versations investigation, County auth- were of Pierce vice course by court order. orized County by the Pierce amended information filed Attorney charges
Prosecuting this case 23 counts involving bribery, of the five each count one more defendants. pretrial hearings,
Following trial court extensive grant rulings among declined to defendants' other bribery on their claim based that the motions dismiss suppress unconstitutional, and also declined to statute was taped recordings on which much of the State's case findings of law were rests. fact conclusions of Detailed *3 rulings. entered with such connection joined seeking The defendants and the then State discretionary by court. direct review those orders appeared important it Since that there were issues first impression concerning pending prosecutions this and other discretionary granted.1 state, in this review was by The case is on evidence State's based County First, infil- Pierce he used an Sheriff. informant prostitution operations County. along Next, in Pierce trate informant, with the use of the the sheriff also continued susceptible deputies pretended who used one of his acceptance allegedly given then who was of bribes and by payoffs allow them to substantial cash the defendants to prostitution operations. conduct underway, got investigation After the sheriff's office apparently felt it was that contacted federal authorities and 2.3; RAP 4.2. 1RAP In
both state and federal law violations were involved. event, would be joint investigation it was that a agreed Thereafter, reported appropriate. separately informant to the sheriff's office and to the Federal Bureau of Investi- first with a gation. informant was wired concealed and, result, 11 federally transmitter or recorder as a auth- by were obtained the FBI. These were not intercepts orized to the sheriff's office and the sheriff's office was provided Later, involved them. both the informant obtaining deputy accepted payoffs similarly and the sheriff who were office, it is their wired sheriff's recorded conver- intercepts with the five defendants which the sations or suppress here seek to as evidence. defendants All of the recordings sought suppressed to be were obtained the sheriff's office to written pursuant orders entered Wash- Superior Court of the State of order, ington County. for Pierce the first one following obtained, is entered: separate illustrative of the 23 orders Superior
In the Court of State
IN AND THE FOR COUNTY OF PlERCE No. 83-2-02945-2 In the Matter Intercept Authorization To Authorizing and Record Communications Order Intercept or Conversations Pursuant Recording to RCW 9.73.090 County [Deputy] the Pierce To: and members of #42 Sheriff's Office Unit. Special Investigations been made before having sworn application Whereas, me law enforcement by [Deputy] #42, a commissioned Office, and full con- officer of the Sheriff's County Pierce to the matter set forth given sideration been having herein, hereby Finds:
(a) for belief bribery There cause probable going attempted. to be There is
(b) for belief cause that communica- *4 (s) to said relating offense will take tions or conversations place as evidence intercep- through and will be forth; set as hereafter recording tion and (c) one #157, expected commu- [Deputy] conversation, given has intercept consent nication or same; recording and techniques reasonably appear (d) investigative Normal convincing, unlikely accurate evidence obtain to be crime(s); Hereby Therefore, It Is Now, That: Ordered County [Deputy] Pierce Sher- members of the #42 together Investigations Special Unit, with nec- iff's Office essary intercept authorized to assistance are technical any the communica- or instrument device record Chong and others S. O'Neill or conversations tions bribery concerning present occurring Pierce commission of offense upon following place: An area within or at County upon Chong agreed S. O'Neill. to be this authorization Further Ordered It Is hours, 6/22/83, upon terminate and shall effective and con- of the communications recording (intercept above), event upon or described versations (7) days from the effective date. of seven passage Done 6/22/83. Waldo Stone Judge /s/ pertinent referred to where to the facts will be Additional under consideration. issue discretionary presented following four issues are on
review.
Issues bribery under which the Is statute Issue One. 9A.68.010(l)(a)) (RCW charged unconstitu- are defendants tionally vague? overbroad Superior orders which author- Are the Court
Issue Two. eavesdropping of conversations between electronic ized deputy sheriff defective and the informant and defendants application they either on the were not issued because County Attorney the Pierce Prosecut- General or the State Attorney? ing supe- issuance of a Three. Can cause for
Issue eavesdropping authorizing electronic court order rior through federal officers information obtained based on prior conducted without approval in evi- be admissible such evidence would where *5 858 in
dence federal court under federal law but is inadmissible in evidence in a state court under law? authority Four. Did the of the sheriff's office to Issue eavesdropping, granted conduct electronic which had been Superior order, the first Court terminate as soon as the initial conversation with the defendant O'Neill was recorded?
Decision Issue One. Implicitly, expressly, bribery if not stat- Conclusion. (RCW 9A.68.010(l)(a)) requires showing corrupt ute a intent, thus the statute is not overbroad. Nor is the statute vague, particularly persons charged as to with conduct such patently alleged as that here which is within the "hard bribery core" of the statute. readability, opinion
In the interest of in citations placed margin have been in the wherever feasible. argue they
The defendants that the statute under which charged stand violates constitution because it is both vague. overbroad and It reads: (1) Bribery. person guilty bribery A 9A.68.010 if: (a) particular With the intent to secure a result a
particular servant's or other action in his official involving public matter the exercise of the opinion, judgment, vote, discretion, exercise of
capacity, offers, confers, he agrees any pecuniary upon pub- to confer benefit servant; lic . . . question goes
"'[0]verbreadth' to the of substan process, question i.e., tive due whether the statute in is so may only prohibit unprotected broad that it not behavior prohibit constitutionally protected activity but also as State, 874, 878, Blondheim v. P.2d well." 529 argue, person effect, Defendants that since a entirely money might pay with some intent who innocent public charged circumstances that a servant under could be (and bribery they as under the statute as written offer a hypothetical examples), statute is number of unconsti tutionally overbroad.
g59 580, 585, P.2d Stroh, Wn.2d As in State v. held (1979), however, "an implied A.L.R.4th proved may be found intent requirement that criminal it statute, express require- contains no though in a even intent, upon assumption that respect ment with law."2 intend to enact an Mani- unjust not legislature did did bribery Legislature statute the festly, enacting constitutionally any innocent or proscribe intend it, only activity persons but intended to cover protected intent.3 Since we construe this brib- corrupt acting with *6 corrupt a requiring proof as defendant's ery statute intent, not overbroad. it is
"A is void for under the Fourteenth vagueness statute if it is framed in terms so that vague persons Amendment necessarily must at its mean- intelligence guess of common White, as v. 97 application." differ to its State ing and (1982). 98-99, 92, P.2d argue Wn.2d 640 1061 Defendants Legislature that since the has not defined the term "official bribery it is is capacity", vague thus the entire statute unconstitutionally rendered We vague. disagree.
In capacity" the context which the term "official is statute, used in that bribery simply public it means scope is within of what he or she is acting servant employed to do from in a distinguished being engaged as can under- personal intelligence frolic.4 Persons common so the void for meaning vague- stand such a statute on ness that account. 669, Prather, App. 666, P.2d 95 See also 2See State v. 30 Wn. 638 879, State, 874, P.2d 1096
Blondheim v.
529
Womack,
9A.04.020(1)(b);
Bribery
(1964);
6
State v.
4
3RCW
12 Am. Jur. 2d
§
(1968);
(1892);
Smith,
19, 25,
v.
La.
212 So.
Issue Two. authorizing orders eaves-
Conclusion. dropping on defendants' conversations with the infor- mant and the sheriff were issued deputy proper on application. Since such orders are authorized under (RCW 9.73.090(2)), state's "one statute" party consent it appropriate they was be issued on the of a application police officer.
In put specific question posed by order to this issue remaining proper perspective, and the other issues it is helpful statutory to first consider the scheme designed possible potential make it to control abuses of electronic while its use for eavesdropping allowing proper purposes statutory protective enforcement under practices subject judicial supervision. Justice Oliver Wendell Holmes once referred to uncon- "dirty trolled electronic as a business".6 When States considering passage the United Senate was *7 1968, the Omnibus Crime Control and Safe Streets Act of on the need for a federal report comprehensive Senate's electronic surveillance stated the as governing problem follows: . . . into possible
No
is it
for each man to retreat
longer
Every spoken
relating
his home and be left alone.
word
marital,
political, or
personal,
religious,
to each man's
by
can
an unseen
intercepted
commercial concerns
Zuanich,
Miller,
(1975);
539, 541,
State v.
5Bellevue v.
P.2d 603
85 Wn.2d
536
Holmes,
590, 597-98,
61, 63,
(1979); State v.
98 Wn.2d
92 Wn.2d
ggl auditor's speaker turned against auditor and advantage.7 wiretapping as such areas advancements
Scientific frequently (interception of wire communications —most (miniature communications), electronic bugging telephone overhear, speaker's or record a which broadcast devices (one conversation) agents and and wired informants with a trans- either concealed equipped to a conversation recorder)7 in turn federal by been followed mitter or have their designed protect against legislation and state abuse. Title such abuses is controlling act aimed at federal Streets Act of Crime Control and Safe
III of Omnibus use regulates which comprehensive It statute 1968.9 for, surveillance. other of, procedure Among electronic for elec- admissibility it establishes standards things, courts, in federal sets evidence tronic protecting against infringe- minimum nationwide standards electronic surveillance upon privacy ment of citizens statutory' criteria in methods and allows states create than protective privacy rights this field which are more are federal standards.10 govern
The statutes of this state which
counterparts, were not
surveillance, unlike their
Instead,
they were
law.
adopted
single comprehensive
as a
required
time
as
to deal
and amended from
to time
adopted
Legislature,
specific problems perceived
with
Thus, we
decisions of this court.11
response to
sometimes
67,
1097,
Cong.
Rep.
reprinted
Cong.,
in 1968 U.S. Code
90th
2d Sess.
7S.
No.
&
News
Ad.
2154.
2,
(1977).
Carr,
1.01[1],
Surveillance
at
§
8J.
Electronic
90-351,
L. No.
Control
Safe Streets Act of
Pub.
9Omnibus Crime
seq.
III,
(1968),
et
amended
18 U.S.C.
§
Title
82 Stat.
531, 538,
Williams,
11See *8 §02 sequence relating consider the entire of statutes
must subject, legislative policies change;12 since do ascertaining legislative purpose, together will read we stat- pari constituting as utes which stand materia a unified statutory whole, to the end that a harmonious total scheme respective integrity which maintains the evolves statutes.13 private pro-
Electronic on conversations is hibited under law unless it is with the consent parties of all to the conversation or comes within one of the exceptions specified by excep- Among state statute.14 these interceptions pursuant tions are to court order. types authorized, are each Two different of court orders authorizing under a different statute. The statutes such Applying times. orders were enacted at different the rules above, of construction set forth we conclude that the two authorizing orders, related, statutes while serve the separate purposes set forth below.
The first of these two statutes is RCW 9.73.040 which pursuant was enacted 1967.15To obtain an order to this statute, it must first be shown that: (a) grounds There are reasonable believe that security endangered, that a human life is in
national
danger,
committed,
that arson is about to be
or that a
committed, riot is about to be
(b)
grounds
There are reasonable
to believe that evi-
protection
dence will be obtained essential
security,
preservation
life,
of human
or the
national
prevention
riot,
of arson or a
(1979).
Bonilla,
869, 873-74,
(1980);
App.
State v.
Wn.
15Laws of 1st Ex. readily available (c) no means There are other information. obtaining *9 9.73.040(1) (part).
RCW as referred to convenience, first statute will be this For eavesdropping electronic the consent statute" since the "no to where by is limited the statute situations permits it the communication or conversa- to participants one of the the eavesdropping. As above tion consented the has clear, may order makes such an quoted of this statute part Furthermore, limited situations. very only be attorney general any county prosecuting or "the for an order.16 A court apply is such attorney" required for a maxi- under this statute is effective order obtained days may by renewed the court mum of 15 but period appropriate.17 where 9.73.090(2) RCW which was second statute is
The 1977, years some 10 later.18 Under statute enacted communication or con- on an oral eavesdropping electronic by the court with the consent may be authorized versation conversation; or there- any party to the communication fore, party as "one consent stat- it will be referred to A be obtained under this statute ute". court order performance in the of the acting "a enforcement officer "if there is cause official duties" and officer's committed, is nonconsenting has party believe in, a ..." RCW felony is about to commit engaged 9.73.090(2). under this statute must be An order obtained time," RCW 9.73- period and specified "for a reasonable effective for .090(2), in no can such an order be event being renewed 7-day period without than a longer Subsequent appropriate showing.19 an upon issuing 9.73.040(1). 16RCW 9.73.040(6).
17RCW Sess., p. 1675. Ex. ch. 18Laws of 1st 9.73.090(4). 19RCW is also of the electronic surveillance subject
notice to statute,20 reports as are thereon to provided by as required the administrator courts.21 authorizing In order to obtain a court order statute", under this "one consent required. application The under oath application detailed state: must
(1) appli- applicant to make authority cation;
(2) investigative identity qualifications for whom agency enforcement officers or or law or conversation authority to record a communication appli- authorized the identity and the of whoever sought cation; (3) upon of the facts relied A statement particular that an authorization his belief applicant justify issued, including: should be *10 known,
(a) if person, the identity particular The or and whose communications the offense committing recorded; are to be conversations (b) offense that has particular The details as to the committed; been, to be of communication is or is about being, (c) or conversa- particular type showing that there is recorded and a tion to be will be communi- believe such communication cause to cated on the wire facility involved or at communication communication is to where the oral particular place the recorded; be wire
(d) particular and location of the The character particular place the facilities involved or communication recorded; is to be communication where the oral (e) of time for which the period maintained, A the statement of if the character of to be required recording the that the authorization is such investigation when the automatically terminate should not recording described been has or conversation of communication type facts estab- obtained, a statement of particular first that additional commu- cause to believe lishing probable thereafter; type will occur nications of the same 20RCW 9.73.140.
21RCW 9.73.120. showing facts other (f) A statement particular to the respect with procedures investigative
normal reasonably failed or and have tried have been offense be too if or to succeed tried unlikely to be appear dangerous employ; exten- or for the renewal (4) application Where the of facts statement authorization, particular an sion of showing recording, from the thus far obtained the results failure to obtain explanation of the a reasonable or results; all
(5) concerning statement of facts complete A authoriz- individual known previous applications, made application, making and to the individual ing to or a wire oral for authorization to record any or of the same facilities involving communication places son whose involving any per- in the or specified application intercepted, communication is to be application; the court on each action taken documentary evi- (6) testimony or additional Such judge as the support application dence require. (part).
RCW 9.73.130
require reference to the federal
herein also
issues
notable difference
The most
subject.
statutes
on this
eavesdrop-
controlling
between federal statutes
is that under
subject
our
on the
state statutes
ping
consents,
can
police
if one
then
participant
federal law
or con-
a communication
electronically
overhear
record
tes-
tape
or elicit
play
can
prosecutor
versation and the
heard,
necessity of
timony
without
police
as what
States
As the United
judicial approval.22
obtaining
first
held,
the Constitution
recently
either
Court
Supreme
”[n]
approval
requires that official
*11
any
Congress
nor
Act of
or recorded
are overheard
before conversations
secured
-
the con ver
of one of
the consent
agents
Government
with
741, 744,
Caceres,
59 L.
440 U.S.
States v.
sants." United
Fishman, Wiretapping
Eavesdropping
2511(2)(c).
§
See C.
§
22 18U.S.C.
(1979).23
2d
hand,
Ed.
S. Ct. 1465
the other
as
On
party
above,
discussed
even
one
consent situations
approving
eavesdropping
required
order
court
electronic
past,
the law this state. In
when
under
state and
sought
cooper-
federal
enforcement authorities have
corruption
investigation
in the
ate
of crime and
in this
state, this basic difference between the state and federal
presented legal problems;24
has
statutes
and as will be dis-
shortly,
again in
case. In
cussed
it does so
this
no consent
prior
approval
situations, however,
required by
eavesdropping is
federal25 and
both
state
statutes.26
"
By
only
Attorney
statute,
[t]he
General,
or
any
Attorney
specially designated by
Assistant
General
Attorney
application
General,
authorize an
..."
argue
body
U.S.C. 2516. Defendants
that the
of case law
which mandates strict construction of that federal statute
strictly
requires,
language
turn,
we
construe
9.73.040(1)
"upon
which allows
to be
RCW
orders
issued
application
attorney general
verified
either the
or
county prosecuting attorney".
they
basis,
On that
ask
only
attorney general
court to hold that
elected
attorney
prosecuting
apply
order,
an elected
can
for such an
authorizing
and that we strike
the court
down
orders
elec
tronic
that were
entered
this case since
Attorney
County
neither the
General nor
Pierce
Prose
cuting Attorney personally signed
applications.
What
argument might
ever merit such an
have under
no
(RCW 9.73.040(1)),
consent statute
it is not well taken
(RCW 9.73.090(2))
under the one
consent statute
requires only
acting
which
that "a law enforcement officer
(11th
Shields,
1982).
also United
States v.
23See
675 F.2d
Cir.
Williams,
State v.
24See
26RCW RCW 9.73.050.
gQ'J the official duties" make officer's performance in the caption (including record As the application. above) clear, makes "Facts of Case" set out under order and entered under all sought in case were orders this officer Accordingly, police statute. party consent one (assisted prosecut- by deputy a applications made the who person apply for attorney) appropriate was ing an regard. There was error in this no orders. Three.
Issue officers by federal Information Conclusion. in by them conducted eavesdropping from electronic legally law be furnished with federal can accordance turn, officers; in may, properly information and such state purpose establishing for the be used state officers from of an order cause obtain issuance probable in accord- eavesdropping electronic authorizing state court ance with state statutes. above, require prior court
As
state statutes
discussed
party
in
one
for
both
approval
eavesdropping
electronic
situations, but court
situations
and no consent
consent
required
in
party
one
consent situations
not
approval
In State
to federal statutes.
acting pursuant
federal officers
(1980),
Williams,
531, 534,
(Italics advisedly. was used Williams, "inadmissible" In word a state stat- as it did in reliance on there ruled The court informa- renders ute, Williams, specifically at which in of state violation tion obtained case all or criminal civil "inadmissible statutes . . ." this state jurisdiction or limited general courts (Italics ours.) RCW 9.73.050. on the basis argue Defendants Williams, and other authority import, of similar information obtained County Pierce enforcement (based authorities from federal law enforcement authorities on FBI one consent obtained without tape recordings order) a court could be used to establish cause *13 for a state court order electronic in allowing eavesdropping accordance with We disagree. state statutes.
Here the probable trial court found cause for the issuance of each the Superior Court orders authorizing eavesdropping. It also ruled that "[i]nformation (11) obtained from federal from the eleven agents fed [sic] eral which tapes preceded the first State authorized inter cept verbally recording reported when to State officers constituted valid for information whether determining 'probable cause' existed for the issuance of authority State intercept record."27 Defendants that prob contend able Superior cause issuance of the Court order author izing electronic eavesdropping upon cannot be based not, however, federal tape recordings. Defendants do con tend there probable that was no cause for the issuance of if Superior the initial Court order information derived from the 11 can tapes considered; be and since we here conclude ruling upholding that the trial court's the use of tapes correct, information from do the federal was we not further address subject cause for the issu ance the order.
A in basic difference between the situation this case and one with Williams that court was confronted in that the information here obtained by County the Pierce pursuant a court order authorizing Sheriff was obtained the electronic There was no such order in eavesdropping. Williams. There, in prosecutor prosecution a state tried put recordings directly obtained federal authorities evidence; into prosecutor put and the also tried to informa- 27Findings Admissibility Taped Regarding of Pact and Conclusions of Law (conclusion Constitutionality 21). Recordings and of Statute lawof
§69 indirectly by offering partic- into evidence tion so obtained had the conversations that been testimony about ipant the federal holding same as that recorded. That mention they passing were not. illegal; were recordings federally in Williams tapes of the of "illegality" context; is, in that in that opinion must considered "inadmissibility" used the sense of was "illegality" tapes. evidence obtained suggested never
This court has with federal strict accordance acting federal authorities held was inadmissible illegal. law Such evidence was is a Williams, illegal. There difference. but it was not spe- to electronic relating Federal statutes between federal and cooperation cifically authorized here: which occurred agencies state law enforcement who, (1) officer law enforcement Any investigative or chapter, has obtained authorized by any means wire or oral communi- knowledge cation, of the contents therefrom, may disclose such or evidence derived offi- enforcement investigative contents another *14 to appropriate that such disclosure is cer to extent duties of officer proper performance official making receiving or the disclosure. who,
(2) Any investigative or law enforcement officer by has any chapter, means authorized this by knowledge of communi- of the contents wire oral such con- or evidence derived therefrom use cation use is to the appropriate proper tents to the extent such performance of his official duties. (part).
18 U.S.C. § Report, Commission submit- Wiretapping The National in a compre- was Congress ted President Ford and developments attendant summary of events and hensive relating the federal statutes of upon implementation surveillance, III the Omnibus namely Title of electronic (18 of 1968 U.S.C. Safe Streets Act Crime Control and §§ 2510-2520). the Commission's author of primary The Carr, of com- B. is the author James Report, Professor subject, on the informative treatise prehensive Law Electronic Surveillance of us,
Pertinent to the issue before Professor Carr therein explains policy and purpose quoted of the above federal statutes:
Where one law enforcement has learned the officer by of by any contents a communication means authorized III, Title §2517(1) may under he such disclose contents another law officer "to the extent that enforcement such proper performance disclosure is to the of appropriate making the official duties the officer or receiving purpose provision disclosure." The this is to authorize the exchange eavesdropping information among law personnel generally, enforcement and between state and particularly. federal officials
Although Report Senate 1097 indicates that both offi- in exchange cers must be in engaged the proper duties, performance of their Congress, as revealed aspects other of the legislative history, intentionally §2517(1) wrote in disjunctive. original draft III Title required parties both to the exchange to in engaged performance duties, the proper of their there was congressional considerable concern about allowing one to the exchange provide or receive disclosures scope outside the Despite his lawful duties. concerns, these in §2517(1) present was its adopted form. (Footnotes omitted.) Carr, J. Electronic Surveillance 7.04[1], at 433 in
The further discussion text concerning use officers of evidence obtained officers prohibit which per states electronic surveillance likewise insofar on present tinent as it bears situations such as that state, where evidence not obtained accordance with state statutes inadmissible in proceedin state court gs :28
Once federal officers have made their to state whose jurisdiction evidence available officers surveillance, prohibits enforcement *15 officers can probably state use such evidence. Most pro- hibitory only interception statutes cover or divulgence, or 9.73.050; Williams, (1980). 28RCW State v. P.2d 1012 officers were not both, but not use. the state Where like they, in federal original interception, involved the III, prohi- state prior to Title not violate the officers do the obtained using bition surveillance information the federal from authorities. prohibitory applied
If a state statute were to be use, it might be deemed to be conflict prevent with of explicit provisions §§2517(1) the In view to encourage intention and facilitate congressional cooperation, such conflict would raise close federal-state Although issues. the state statute preemption difficult evidence, eavesdropping the use would restrict thereby, perhaps, itself, surveillance such restriction law enforcement federal activities which impede would encouraged by §2517(2). specifically were reach only allowing would preemption Such investiga- evidence to use derived federally officers prohibit tive It would not states purposes. from in state trials. excluding such evidence ours.) (Footnotes Carr, J. Electronic Sur- omitted. Italics 7.04[2][a], veillance at 435-36 paragraph foregoing quotation The italicized thus federally even where supports proposition that information excluded from evi- statute, dence as Williams held to be the law of this state, in establishing that does not exclude its use Accordingly, we we do appropriate. cause as here hold to be holding incompatible not view our herein as with the hold- of this in Williams. ing County deputies
Here the Pierce Sheriff's were in the FBI of the informant and the wiring involved recordings. No has suggestion obtaining purpose herein as to collusion for been made law. What was avoiding requirements rather, involved, federal and state cooperation was between County in Pierce payoffs crime and investigating officers improper.29 Nothing suggests that was not between federal and wall should be erected legal that a (9th 1976). Hall, v. n.2 Cir. 29United States F.2d *16 investigating corruption state; state officers vice and in this contrary, encourages good cooper- to the the law their faith provided deputies ation. When the sheriff's were informa- FBI, tion the which had been FBI derived from one party recordings, deputies justi- consent the sheriff's were using purpose establishing probable fied it for the procure authorizing cause to a state court order electronic eavesdropping in accordance with state statutes. The trial ruling. did err in so Issue Four. authority eavesdropping The electronic Conclusion. sought granted the sheriff and the court this case concerning did not terminate when the initial conversation bribery was recorded. pertain period
Two state statutes to the time within eavesdropping which electronic is to be conducted under party this state's one consent statute. One section of the " provides [authorizations statute that issued under this days, section shall effective for be not more than seven after period issuing authority may upon application the which original the officer who secured the authorization renew or period continue the authorization for an additional not to 9.73.090(4). days." exceed seven RCW The other section is 9.73.130(3)(e), requires applications RCW which that a for '' period [a] court order contain statement of the of time for recording required maintained, which to if be investigation character of is such that authorization recording automatically for should not when terminate type described communication or conversation has been particular establishing obtained, first probable a statement of facts cause believe that additional communications type thereafter; of the same will occur ..." patterned state These statutes are after sections of III Title of the Omnibus Crime Control Safe Streets Although Act 1968.30 that federal enactment relates just situations, no consent whereas the state statutes 2518(5). 2518(1)(d), U.S.C. 30 18 § may situations, we look
quoted consent to one relate interpretative Construing assistance. the federal light, fairly be said it can statutes above interception should not of an electronic duration that: necessary particular longer under than the facts of be case; one-time surveillance fulfills the needs where investigation being conducted, is all that should conducted; of conduct and where a course authorized likely parties period multiple to embrace and extend over authorizing time, the order up properly proportionally longer surveillance, authorize *17 statutory statutory in the party maximum.31 maximum one That days.32
consent situations is 7 authorizing Superior The first electronic Court order eavesdropping Case" set in full under "Facts of out order, were conversations above. Pursuant apparently to that one days separate with defendants recorded on argue: O'Neill, that the The defendants Bennett and Chu. subsequent O'Neill to the initial one with conversations purview order; that subse- were not within the quent recordings Bennett and of the conversations with yet recordings suppressed; and that the Chu should be later (and inferentially Chu of defendants the defendant other "illegal" well), having been derived from such earlier as recordings suppressed. on that basis also should question roving was a commission The order surrepti- deputy authorizing sheriffs to overhear they County tiously that record conversation Pierce appear suggest.33 Pursuant to to, as defendants chose they with were the order authorized to record conversations "others individual, O'Neill, named the defendant a subsequent present" at time of such conversations. Carr, 4.05[5], 31See J. Electronic at Surveillance § 9.73.090(4). 32RCW 41, 59, Berger York, L. Ed. 2d 87 S. Ct. 33See v. New U.S. pursuant order, first with the
conversations to this court Chu, were Bennett, then defendant defendant with the appear presence of defendant O'Neill and both 7-day recordings period. initial Later have been within the pursuant subsequent court were made of conversations renewal orders, which was based on a detailed each of application statutorily prescribed in the manner.34 made application initial order
The detailed for the clearly authorizing electronic showed conspira investigation ongoing was of an offense under potentially involved, involved, torial nature and several people. application plural in the referred to conversa regarding prostitution operations, "laundering" tions monthly operations, making payoffs and funds from such by requesting authority ended record "communications or conversations". The order itself also referred to record ing author "communications or The order conversations". izing eavesdropping arguably a contained ambiguity length measure the surveil so far as the lance term authorized the order is The trial concerned. authority granted court, however, ruled as to this that the instead "is not limited to one conversation but order recording of all communications and conversa authorizes concerning present O'Neill and others tions of defendant period bribery for a of seven officer enforcement *18 (7) days."35Viewing in and order a reasonable the court's hypertechnically,36 we manner, than rather commonsense interpretation of it was cor the trial court's conclude that rect. prin- warrant, a search
In issuance of a conventional rights cipal protection is a citizen's Fourth Amendment interposed magistrate between detached and the neutral 34RCW 9.73.130. Admissibility Taped Regarding 35Findings of Law Fact and Conclusions 5). (conclusion Constitutionality of law
Recordings Statute and 557, Olson, 555, App. P.2d 476 32 Wn. 648 36See State v. requesting person its issuance the search warrant and
the by warrants and orders Conventional search court.37 many eavesdropping authorizing similar have electronic are, however, characteristics; differ- there some material what differences include the nature of These ences. acquisition sought and, discovered, in to be method of many practical cases, differences lead their duration. These authorizing impact. in An elec- turn to differences in order may eavesdropping persons and often more tronic affects multiple privacy. is also Such an order involve invasions of parties in consent to at secret least one of the one situations) (and parties in no situations to all the consent pursuant and, to a search unlike the conventional search par- likely promptly to all warrant, known is not become any entering ex in ties from this that affected.38It follows parte authorizing under the order routinely issuing should state, laws of this automatically or renewal order that such order issue sought, exercise all reasonable care con- but should degree as of intrusiveness involved so sonant with statutorily process being prevent authorized from any way. appears abuse in No such this case. abused proceedings. further remanded for Affirmed and C.J., JJ., Brachtenbach, Cun- Dolliver, Utter Tern., concur. J. Pro ningham, part, dissenting part) (concurring con- J. Dore, —I majority. trial court cur with the result reached properly motion and the denied both motion dismiss suppress was First, dismiss to properly evidence. the motion "corrupt an element
denied because intent" 436, Ct. States, 10, 14, 68 S. L. Ed. 37Johnson v. United U.S. 667, 170, (1948); Delaware, Ct. 2674 2d S. Franks v. 57 L. Ed. 438 U.S. 2.05A, 1984); (Supp. Carr, 3-4 Fish at C. 38See J. Electronic Surveillance § (1978); man, Eavesdropping v. San Wiretapping at 7-8 United States 1978). tora, (9th Cir. 583 F.2d 462 n.6 *19 876 bribery,
the crime of 9A.68.010. This RCW element bribery expunges objection charge to the of as uncon- stitutionally vague. suppression Second, of overbroad and interception the state-authorized of conversations by majority, unwarranted, not for the the reasons stated support but because the affidavits of filed issuance independently probable state warrants and establish cause federally there is no need to use obtained information. majority's holding probable I dissent to the cause for interception by a state of conversations can be established interceptions majority's federal that violate state law. holding privacy Washington violates the interests of resi- guaranteed by Washington privacy dents act, under- protections mines the Washington of of article section 7 encourages subterfuge Constitution,
State and respect and evasion with to state law. subject case,
In the the state and federal law enforcement joint investigation authorities conducted a into Pierce County During cooper- sauna activities. of their course tape recordings activities, ative agents. 13 were made federal recordings satisfy requirements These did not Washington privacy act, 9.73, our RCW were, there- illegally fore, obtained under law.
recordings State, were however, utilized in submit- ting tapes superior judges information on for determining recordings cause to authorize secret agents. wiretap The federal statute, Title III of the Omnibus Crime Control and Safe Act Streets deals wire with interception interception of oral 18 communications. purpose protect privacy §§ U.S.C. 2510-2520. Its is to wire and oral communications and to a uni- delineate on form basis circumstances and under which conditions interception wire and oral communications Superior Halpin v. Court, authorized. Cal. 3d Rptr. P.2d 1295, 101 Cal. prohibits interceptions
Title most III wire or either oral when neither to the communications consents national (exceptions 18 U.S.C. interception. carriers). On the communication common security *20 persons Title III it unlawful hand, does not make other or oral com- intercept a wire color of law to under acting to the communi- munication, person where such is given has cation, communication parties or to the one (2) (c). Nei- 2511 interception. such 18 U.S.C. consent to statute any federal the federal constitution nor ther before conversa- approval that be secured requires official with the agents by government tions are recorded federal States v. See United consent of one of the conversants. Caceres, 733, L. 99 Ct. 1465 U.S. Ed. 2d S. (1979). not, under the Hence, enforcement officers need law statute, wiring to an prior a court order obtain to interception. informant who has consented receipt, Title III dis- provisions govern of which closure, by law wiretap-derived and use information of as provide enforcement officers follows: (1) who, law Any or enforcement officer investigative any by means this has obtained by chapter, authorized any of oral communi- of the contents wire or knowledge therefrom, cation, may disclose such or evidence derived or enforcement offi- investigative contents to another to appropriate to extent that such cer disclosure duties of the offi- proper performance official receiving the disclosure. making cer (2) who, investigative or law enforcement officer Any any chapter, means authorized has obtained wire or oral communi- of the contents knowledge use such con- may cation or evidence derived therefrom to the appropriate proper tents to the extent such use duties. performance his official (Italics mine.) 2517(1), provi- these Under U.S.C. § sions, wiretap informa- a state officer receive use receipt and use is only tion extent to the of his official performance appropriate proper for the duties is defined a state officer's official scope duties. The by state law. Congress Title III indicates that legislative history of
intended
permit
to
state electronic surveillance laws to be
more
and, therefore,
restrictive than the federal provision
protective
more
privacy.
individual
State enactments
cannot, however, be less restrictive. Nor can they expand
the use of
beyond
perimeters
electronic surveillance
Thus,
established
Title III.
Congress did not intend to
supersede state attempts
protect
privacy
conversational
but merely
subject
legislation
minimum
See
Williams,
standards.
State v.
Wn.2d
539-40,
(1980);
Carr,
The State of Washington attempted wiretap- to curtail ping before the federal statute In adopted. was 9.73.030-.080, enacted RCW it unlaw- making anyone ful for not operating under a court order inter- cept or divulge certain communications without the consent *21 of all persons engaged the communications or conversa- tions. This law was all characterized as an party consent law. The law provides that a court wiretap ordered can be when there authorized are reasonable to grounds believe security that national or human life endangered. is RCW adopted, 9.73.040. As originally RCW 9.73 is one of the most restrictive electronic promul- surveillance laws ever gated. 1970,
In the statute was amended to exclude certain police and fire department functions such as of recording incoming telephone calls. 1970, Sess., Laws Ex. ch. of 1st (codified 9.73.090(1)). at RCW Wanrow, In State v. 221, 559 P.2d (1977), interpreted this court 9.73.090(1) except RCW to calls to emergency telephone police the prohibition against from the unconsented private of conversations of recording only purpose for the the their insuring accuracy reception. of This does provision not affect the application of RCW under which 9.73.050 nonconsensual inad- private conversations are recordings missible as evidence. Wanrow,
In amended RCW light Legislature again 9.73. The Senate have conformed original proposals would recordings with the federal law and allowed
the statute Legislature Bill 45th consents. Senate party one when (1977); Legislature Bill 45th Senate Engrossed pro- however, Senate House, approve to these refused to exception broad an they were too posals because to conformed Hence, the statute was not privacy. right which adopted was provision law but rather a federal statute underlying the general retains the restrictiveness mak- yet personnel some latitude gives law enforcement one communications when intercept it oral ing lawful to order. has a court party and the officer consents prob- 9.73.090(2). The must be based on court order RCW party that has nonconsenting able to believe cause committed, in, felony. engaged is is about commit a 9.73.090(2). RCW individ- provides
The statute that it unlawful RCW The statute provisions. ual to violate its 9.73.030. in violation of the statute or acquired excludes all evidence order, 9.73.050, provides both civil RCW RCW 9.73.060 and .080. penalty. criminal Thus, Washington privacy significantly expands act offers a minimum standards the federal statute and protection citizens. degree greater requires probable both one consent and party state act cause, simply provides wiretap whereas statute intercept it where unlawful communications interception. one consents action, In for the court present cause interception interception part ordered state was based on with the fed- recording of conversations accordance *22 statute, the eral but in of more restrictive wiretap violation activity on the state The condones majority statute. in not admitted basis that the federal information was the federal statutes criminal trial proceeding state federal and state law cooperation mandate between agree. I cannot agencies. enforcement that one privacy provides act Washington prior unlawful without recordings consent are 880
approval upon probable Thus, based cause. the state offi- wiretap cer's use of the federal information was the use of illegally probable proceeding. seized evidence cause prohibited This use is under RCW 9.73.030 and article Washington section 7 of the State Constitution. primary purpose privacy of the act is to
protect privacy public prohibiting of individuals dis- proceeding, semination, even the course of a criminal of illegally Williams, obtained information. State v. (1980);
531, 542-43,
Wanrow,
P.2d the Court held that evidence obtained in violation of RCW 9.73 cannot used for impeachment. The court stated: directly Although Henderson did not seek admis " [a]ny sion of 9.73.030" information obtained in violation of RCW (RCW 9.73.050), transcription his use of the clearly pre purpose violated the statute's intended
venting upon privacy parties "encroachment App. Grant, 260, 265, v. a conversation." State 9 Wn. P.2d 1013 Henderson, at 530. proceeding. is true in instant
The same criminal Although infor- the State did not seek the admission of the privacy act, mation obtained violation of the state illegally use in the obtained information pur- clearly intended cause determination violated the act's
881 illegally of public dissemination prohibiting pose prob- information of Affidavits and obtained information. public available for dissemination. able cause are generally 584, P.2d 966 v. Wn.2d 637 Pub'g Murphy, Co. 96 Cowles (1981). determi- principle probable
A cause well established be used to illegally is that seized evidence cannot nations Bean, 467, v. 89 572 probable cause. State Wn.2d establish 447, (1978); Jones, State v. 22 Wn. 591 App. 1102 P.2d (1979). equally This is true of use of informa- P.2d 796 wiretap interception support an in of a illegal tion from Giordano, v. 416 U.S. subsequent intercept. United States 529-34, (1974); see 505, 341, L. 2d S. Ct. 1820 40 Ed. 94 80 Fishman, Wiretapping Eavesdropping also C. indi- Court has Supreme United States also intercept in cated that evidence obtained violation may not in sense: recording statutes be used direct use of methods thus characterized To forbid the but to only put their indirect would no curb on full use ethi- very invite the methods "inconsistent with deemed What personal liberty." cal standards and destructive of in in Lumber was said a different context Silverthorne States, 385, 392, 319, Co. v. United 251 L. Ed. U. S. [64 183, 24 182, 1426,] pertinent Ct. here: 40 S. A.L.R. a provision forbidding acquisition "The essence of way so evidence in a certain is that not evidence merely court, not be it acquired shall used before but States, all." v. not be used at See Gouled shall United L. 261, 264], S. Ed. S. Ct. 255 U. 307 [65 States, 338, 340-41, L. Ed. v. U.S. Nardone United Ct. 60 S. bench, the case at it follows Employing logic the same of RCW 9.73.030 that information obtained violation used trial, also not be only may not be used at but authorized cause for of court establish issuance 9.73.090(2). conclude To intercepts pursuant RCW with faith to break encourage otherwise is to state officers clearly expressed State and violate and its citizens cooperation contemplate did close Congress policy. Though welcoming federal officers and the officers of states between usurpation permit cooperation, it not intend to did majority contemplated by in the state law manner opinion. legitimate residing in have
Individuals admissibility restricting of evidence derived interest intercept proceedings. from state court *24 concerning illegally privacy individuals interests of protected requirement evidence are the that obtained against not be such evidence used individuals. Viola- privacy joint tion the state act the of federal/state represents investigation the kind of intrusion that exclusionary prevent. employ designed rule is to Refusal to gathered wiretap the strict state standards to the by evidence agents in law has the federal contravention of state impairing privacy legitimate of state interests. effect 1, section 7 Article of the State Constitution private provides: person in his "No be disturbed shall authority affairs, invaded, or his home of law." without citizenry guaranty upon This of constitutional confers governmen- right state a to free from unreasonable be 432, 443, Jackson, tal 102 intrusions. State v. Wn.2d 688 (1984). exclusionary applicable rule when- P.2d 136 is right ever the an to free from unreasonable individual governmental 1, under article section 7 is unrea- intrusions sonably White, 97 State v. Wn.2d violated. (1982).
P.2d exclusionary recognized has rule This court objectives: applied three should be achieve protect important, privacy first, individuals interests of and most governmental against intru- unreasonable unlawfully police acting sions; second, from to deter dignity obtaining preserve evidence; third, in by refusing judiciary evidence which to consider through illegal has been means. obtained Bonds, 1, 12, v. State 98 Wn.2d 653 P.2d establishing statutorily imposed requirement of intercepts probable of warrants for state cause for issuance
gg3
accommodating
for
standards
embodies the constitutional
from
in
citizens
safeguarding
interests
opposing
often
in
seeking
privacy
interferences with
unreasonable
v.
See State
law enforcement.
give
leeway
fair
for effective
289, 303,
Broadnax,
I between the exclu- perceive distinguishing no basis use prohibition rule and the sionary of RCW 9.73.050 device for 9.73.030; provisions each RCW of those in privacy inception whether its eliminating an invasion conformity If evidence or derivative thereof. with but violation of state law standards 9.73.050, proceedings under RCW excluded Williams, (1980), P.2d its State v. *25 cause probable proceeding use state in a contin- by officers ues RCW 9.73.030. precluded by to be sense contrary major-
It is
to reason and common
information in Wil-
ity
wiretap
contend that
the federal
to
that
evidence is
illegal.
liams was not
It is the fact
be held
requires
that
it to
illegal
under
law
pursuant
in a
RCW
proceeding
inadmissible
state court
case, it
not
Williams,
present
See
In the
9.73.050.
at 536.
which
exclusionary
prohibits
9.73.050
rule of RCW
information,
application
but the
this illegally
use of
seized
1,
article
section
firmly
principles
of the
established
in a
not be used
shall
illegally
that
seized information
subsequent
for a
cause
proceeding
probable
to establish
wiretap.
of the
exclusion
requires
seizure which
new version of
has,
effect,
created
majority
The
original
to the
silver
According
platter
"silver
doctrine".
state officials
by
doctrine,
obtained
platter
evidence
suppressed
would
officials
turned over to federal
means of an
search.
by
illegal
it was obtained
though
even
States,
L. Ed.
69 S.
Lustig v. United
338 U.S.
by
doctrine was overruled
original
Ct. 1372
States,
206, 4
v.
U.S.
Court in Elkins
United
Supreme
(1960)
that
it
L.
Elkins, at 221-22. invites state law enforcement majority's holding with federal initial association
personnel to withdraw from disre- the federal officers to tacitly encourages officers and platter The silver doctrine statutory prohibitions. our gard obtained infor- illegally would then state use of this permit authorization for its own mation to obtain state court interception. used to obtained evidence to be illegally
To allow the simply encourage cause would establish they indirectly legally that which cannot enforcement to do an incen- should not condone such directly. do This court pri- the state tive and intent of purpose to circumvent vacy state-guaranteed act and evasion of subterfuge interests. privacy the fed-
I would hold that the information *26 should eral officers was under and illegal cause determination. probable have been excluded from the Williams rein- opinion, is with the Such a rule consistent prevents underlying privacy policies act, and forces the exclusionary effect. rule and its deterrent erosion of the finding require holding a does not Furthermore, such a improperly instant action were that the state orders probable cause for issuance The affidavits establish issued. independent contained the information warrants tapes. Investigation This court in Federal Bureau of recently Aguilar-Spinelli 2-pronged test for reaffirmed the evaluating probable in relation cause the existence of tips. P.2d Jackson, Wn.2d informants' State v. (1984). (as tip in an affida- For an informant's detailed vit) issue, to create a search warrant cause for (1) the under- the officer's forth some of affidavit must set lying drew his circumstances from which the informant independently magistrate evaluate conclusions so that a can reliability informant of the manner which the (2) acquired information; his and must set affidavit underlying of the circumstances from which the forth some or his concluded informant was credible officer Jackson, at 435. The affidavit submit- information reliable. 2-pronged by Sergeant Exhibit meets this test. ted Gibbs B. requires knowledge", prong first, or "basis of underlying justification
revealing factual of some prob- that an assessment informant's conclusion so accuracy can be made. conclusion of the informant's able 43, 48, P.2d 1272 Sieler, State v. Generally knowledge" way satisfy the "basis of the surest passing prong by showing on what that the informant LaFave, Search 1 W. him firsthand information. is to by Sergeant In the affidavit submitted Seizure 3.3 clearly paragraph (2)(g) estab- case, Gibbs the instant knowledge: firsthand lishes the informant's Informant Confidential Between 4/25/83 6/08/83 Chong had several Sim O'Neill [defendant] #421 conversations operations regarding . . . the sauna Aguilar-Spinelli prong is met. Hence, test the first "veracity" prong, facts sufficient the second Under *27 magistrate presented must be so the either determine credibility reliability the inherent or the of the informant particular Fisher, the occasion. State v. on denied, P.2d cert. This U.S. 1137 prong is met if the if information has led to arrests past proven information has to be '"true and correct'". Sergeant Fisher, at 965. Gibbs' affidavit states proven information received from informant Velez was B, be "correct and true" and Exhibit led to one arrest. (c). (2)(a), paragraph Hence, the second the affidavit meets prong Aguilar-Spinelli of the test. independent
Accordingly, grounds, there lawful existed illegal tapes, support war- the state court intercept rants for of conversation. Conclusion citizenry
Washington grant has chosen to its State greater privacy interest communications than mandated by pri- federal law. Where the State chooses to enforce this vacy by prohibiting certain interest conduct its law prohibition officers, that stands as a enforcement limitation authority of the state officer's to otherwise use information privacy citizenry. in violation of the obtained interests of its privacy Washington I submit that the construction of the majority illegally act which the sustains use of wiretap information, a construction which labels a privacy appropriate direct violation of the state's act proper performance duties, is no of the state officer's official inconsequential privacy intrusion on the interests our privacy legislative citizenry. Reading the state act the into investigative cooperation permit decried intent illicit only blight Legisla- on our law, is an undeserved not integrity compromise of the ture but a respect my Legislature judiciary view, due In to our as well. judiciary ignoring, integrity forbids our if of our rewarding, officer's violation of a state the commands of employs sovereignty him. which majority. with I concur aspects, In all other J. J., with concurs Dore, Pearson, May 30, 1985. En Banc. 50213-7. No. *28 v. Respondent, Hospital, Memorial
Harrison County, Appellant. Kitsap