Use of Recording without All Parties’ Consent in Washington Criminal Case

Washington’s privacy act generally prohibits recordings of communications obtained without consent of all parties from being admitted as evidence at trial. RCW 9.73.030. In some circumstances, however, they may be admissible. A law enforcement officer can intercept, record, or disclose a conversation with the consent of one party and authorization of a judge. The judge must approve the application for authorization if there is probable cause the other party committed, is committing, or is about to commit a felony. RCW 9.73.090(2). The requirements for the application are set forth in RCW 9.73.130, and if the application is not in compliance with those requirements, the order is unlawful and the recording cannot be admitted into evidence.  A defendant recently challenged admission of a video of him and his brothers discussing the crime.

According to the appeals court’s unpublished opinion, five young men in masks and dark clothes killed two people and shot three others in an encampment for people without housing.  One of the victims identified the person who shot her as a man called “Juice.”

A man called “Lucky” contacted the police the following day and said his 17-year-old nephew, the defendant, had admitted to the shooting.  Lucky and a relative went to the police department for an interview.  They told the detective the defendant and his brothers owned three guns.  Lucky agreed to try to record a conversation with the defendant.

The detective completed an application for judicial authorization for a one-party consent recording.  The detective included information that the defendant had admitted to the shooting and the corroborating information he had obtained.  The application also stated reasons other investigative strategies were unlikely to work.

A judge signed an authorization order finding probable cause to believe the defendant committed second degree murder and first degree assault.

Lucky made a video recording of a conversation with the defendant and his brothers. The defendant admitted he and his 16-year-old and 13-year-old brothers committed the shootings and got several hundred dollars from the victims. The brothers talked about the guns they used.

The defendant and his 16-year-old brother were charged with two counts of first degree felony murder predicated on robbery and three counts of first degree assault.  Both moved to strike the video, but the trial court denied their motions.

After two hung juries, both the defendant and his brother were convicted as charged.  The defendant appealed.  He argued the video was inadmissible under the state’s privacy act because the police did not establish probable cause he had committed a felony and had failed to show the recording was necessary.

The defendant argued the detective’s affidavit did not contain sufficient information for the court to determine if Lucky was credible so there was not an adequate showing of probable cause he committed a felony. The state argued the defendant was applying the Aguilar-Spinelli test, but it was inapplicable because is used to evaluate whether probable cause exists in relation to tips from informants. The state constitution requires its use in determining if there is probable cause justifying a search warrant based on a tip from an informant.  The issue in this case, however, was probable cause based on RCW 9.73.090. The appeals court concluded that the state constitutional requirements for probable cause for a search warrant were inapplicable. This conclusion is aligned with previous case law, wherein the appeals court held that probable cause under the privacy act was governed by statute instead of state constitutional probable cause principles.

The question, then, was whether the detective’s affidavit contained sufficiently reliable information to establish a reasonable inference the defendant committed a felony. The affidavit stated Lucky had contacted a police officer and stated the defendant was the shooter.  He met with the detective and told him that the defendant, his brothers, and their mother were without housing and lived in a tent.  The detective knew that the brothers lived in a tent.  Lucky and his relative met with the detectives and described conversations with the defendant about the shootings and identified photos of the defendant and his brothers.  They told the detectives what types of guns the defendant had access to and one of them matched the caliber of a bullet removed from a victim.  One of the survivors told the detective that the shooters were “four young Samoan males” and the detective knew the defendant and his brothers had Samoan heritage.

The appeals court found the detective could reasonably infer the defendant had committed a felony based on the information from Lucky, which aligned with other information he had. The circumstances pointed to reliability of the information.  Lucky and his relative were close to the defendant and gave the detectives their names.  They were also willing to cooperate and try to obtain a recording.  The appeals court noted the recording itself would eliminate the possibility they could lie about the conversation to get favors from law enforcement.  The appeals court therefore found there was probable cause for the judge to authorize the recording.

The defendant argued the application did not establish the recording was necessary because other investigative techniques were not likely to succeed.  An application must contain a statement of facts showing that other normal investigative procedures have failed, reasonably appear to be unlikely to succeed, or are too dangerous.  RCW 9.73.130(3)(f).  General boilerplate will not state sufficient particular facts.

The detective’s affidavit noted the witnesses were unable to identify the shooters because it was dark and they were wearing masks.  It also stated there was no surveillance video and no physical evidence pointing to any individual.  He also explained that the defendant or others involved were not likely to discuss the incident in front of a stranger, so an undercover officer was unlikely to be effective.  The recording would bolster the informants’ credibility and clarify context of the conversation.

The appeals court found the affidavit stated particular facts and circumstances that established that other investigative techniques were not likely to succeed.

The defendant argued law enforcement should have used other investigative strategies, including contacting “Juice.”  The appeals court noted investigating Juice would not necessarily mean law enforcement should stop investigating the defendant because there were five people involved.  Likewise, a victim identifying another person in a photomontage would not have excluded the defendant. These strategies would not be an acceptable alternative to further investigation of the defendant.  The application sufficiently established that other normal investigative procedures were unlikely to be successful. The application sufficiently supported the judge’s order.

The appeals court affirmed.

Although the appeals court found the application in this case supported the judge’s authorization, that is not always the case.  If you are facing criminal charges and have been recorded without your consent, a skilled Seattle criminal defense attorney can fight to protect your rights.  Call (206) 622-6562 to set up a consultation with Blair & Kim, PLLC.





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