State v. O'NEILL
State v. O'NEILL
Opinion of the Court
Facts of Case
At issue here is the constitutionality of the bribery statute and the validity of electronic recordings made of conversations relating to bribes. The recordings, made during the course of a Pierce County vice investigation, were authorized by court order.
The amended information filed by the Pierce County Prosecuting Attorney in this case charges 23 counts of bribery, each count involving one or more of the five defendants.
Following extensive pretrial hearings, the trial court among other rulings declined to grant the defendants' motions to dismiss based on their claim that the bribery statute was unconstitutional, and also declined to suppress the taped recordings on which much of the State's case rests. Detailed findings of fact and conclusions of law were entered in connection with such rulings.
The defendants and the State then joined in seeking direct discretionary review of those orders by this court. Since it appeared that there were important issues of first impression concerning this and other pending prosecutions in this state, discretionary review was granted.
The State's case is based on evidence obtained by the Pierce County Sheriff. First, he used an informant to infiltrate prostitution operations in Pierce County. Next, along with the continued use of the informant, the sheriff also used one of his deputies who pretended to be susceptible to the acceptance of bribes and who was then allegedly given substantial cash payoffs by the defendants to allow them to conduct prostitution operations.
After the investigation got underway, the sheriff's office contacted federal authorities and it was apparently felt that
All of the electronic recordings sought to be suppressed were obtained by the sheriff's office pursuant to written orders entered by the Superior Court of the State of Washington for Pierce County. The following order, the first one obtained, is illustrative of the 23 separate orders entered:
In the Superior Court of the State of Washington IN AND FOR THE COUNTY OF PlERCE
In the Matter of Authorization To Intercept and Record Communications or Conversations Pursuant to RCW 9.73.090
No. 83-2-02945-2
Order Authorizing Intercept and Recording
To: [Deputy] #42 and members of the Pierce County Sheriff's Office Special Investigations Unit.
Whereas, sworn application having been made before me by [Deputy] #42, a commissioned law enforcement officer of the Pierce County Sheriff's Office, and full consideration having been given to the matter set forth herein, the court hereby Finds:
(a) There is probable cause for belief that bribery is going to be attempted.
(b) There is probable cause for belief that communications or conversations relating to said offense (s) will take place and will be obtained as evidence through interception and recording as hereafter set forth;
(c) [Deputy] #157, one party to the expected communication or conversation, has given consent to intercept
(d) Normal investigative techniques reasonably appear to be unlikely to obtain convincing, accurate evidence of the crime(s);
Now, Therefore, It Is Hereby Ordered That:
[Deputy] #42 and members of the Pierce County Sheriff's Office Special Investigations Unit, together with necessary technical assistance are authorized to intercept and record by any device or instrument the communications or conversations of Chong S. O'Neill and others present concerning commission of the offense of bribery occurring at or upon the following place: An area within Pierce County to be agreed upon by Chong S. O'Neill.
It Is Further Ordered that this authorization is effective 1600 hours, 6/22/83, and shall terminate upon (intercept and recording of the communications and conversations described above), or in any event upon the passage of seven (7) days from the effective date.
Done 6/22/83.
/s/ Waldo Stone Judge
Additional facts will be referred to where pertinent to the issue under consideration.
The following four issues are presented on discretionary review.
Issues
Issue One. Is the bribery statute under which the defendants are charged (RCW 9A.68.010(l)(a)) unconstitutionally overbroad or vague?
Issue Two. Are the Superior Court orders which authorized electronic eavesdropping of conversations between the defendants and the informant and deputy sheriff defective because they were not issued on the application of either the State Attorney General or the Pierce County Prosecuting Attorney?
Issue Three. Can probable cause for issuance of a superior court order authorizing electronic eavesdropping be based on information obtained by federal officers through electronic eavesdropping conducted without prior court approval where such evidence would be admissible in evi
Issue Four. Did the authority of the sheriff's office to conduct electronic eavesdropping, which had been granted by the first Superior Court order, terminate as soon as the initial conversation with the defendant O'Neill was recorded?
Decision
Issue One.
Conclusion. Implicitly, if not expressly, the bribery statute (RCW 9A.68.010(l)(a)) requires a showing of corrupt intent, thus the statute is not overbroad. Nor is the statute vague, particularly as to persons charged with conduct such as that alleged here which is patently within the "hard core" of the bribery statute.
In the interest of readability, the citations in this opinion have been placed in the margin wherever feasible.
The defendants argue that the statute under which they stand charged violates the constitution because it is both overbroad and vague. It reads:
9A.68.010 Bribery. (1) A person is guilty of bribery if:
(a) With the intent to secure a particular result in a particular matter involving the exercise of the public servant's vote, opinion, judgment, exercise of discretion, or other action in his official capacity, he offers, confers, or agrees to confer any pecuniary benefit upon such public servant; . . .
"'[0]verbreadth' goes to the question of substantive due process, i.e., whether the statute in question is so broad that it may not only prohibit unprotected behavior but may also prohibit constitutionally protected activity as well." Blondheim v. State, 84 Wn.2d 874, 878, 529 P.2d 1096 (1975). Defendants argue, in effect, that since a person who might with some entirely innocent intent pay money to a public servant under circumstances that could be charged as bribery under the statute as written (and they offer a number of hypothetical examples), the statute is unconstitutionally overbroad.
"A statute is void for vagueness under the Fourteenth Amendment if it is framed in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application." State v. White, 97 Wn.2d 92, 98-99, 640 P.2d 1061 (1982). Defendants argue that since the Legislature has not defined the term "official capacity", it is vague and thus the entire bribery statute is rendered unconstitutionally vague. We disagree.
In the context in which the term "official capacity" is used in the bribery statute, it simply means that the public servant is acting within the scope of what he or she is employed to do as distinguished from being engaged in a personal frolic.
Issue Two.
Conclusion. The orders authorizing electronic eavesdropping on the defendants' conversations with the informant and the deputy sheriff were issued on proper application. Since such orders are authorized under this state's "one party consent statute" (RCW 9.73.090(2)), it was appropriate that they be issued on the application of a police officer.
In order to put the specific question posed by this issue and the other remaining issues in proper perspective, it is helpful to first consider the statutory scheme designed to make it possible to control potential abuses of electronic eavesdropping while allowing its use for proper law enforcement purposes under statutory protective practices and subject to judicial supervision.
Justice Oliver Wendell Holmes once referred to uncontrolled electronic eavesdropping as a "dirty business".
No longer is it possible . . . for each man to retreat into his home and be left alone. Every spoken word relating to each man's personal, marital, religious, political, or commercial concerns can be intercepted by an unseen*861 auditor and turned against the speaker to the auditor's advantage.7
Scientific advancements in such areas as wiretapping (interception of wire communications — most frequently telephone communications), bugging (miniature electronic devices which overhear, broadcast or record a speaker's conversation) and wired informants and agents (one party to a conversation equipped with either a concealed transmitter or recorder)
The federal act aimed at controlling such abuses is Title III of the Omnibus Crime Control and Safe Streets Act of 1968.
The statutes of this state which govern electronic surveillance, unlike their federal counterparts, were not adopted as a single comprehensive law. Instead, they were adopted and amended from time to time as required to deal with specific problems perceived by the Legislature, and sometimes in response to decisions of this court.
Electronic eavesdropping on private conversations is prohibited under Washington law unless it is with the consent of all parties to the conversation or comes within one of the exceptions specified by state statute.
The first of these two statutes is RCW 9.73.040 which was enacted in 1967.
(a) There are reasonable grounds to believe that national security is endangered, that a human life is in danger, that arson is about to be committed, or that a riot is about to be committed, and
(b) There are reasonable grounds to believe that evidence will be obtained essential to the protection of national security, the preservation of human life, or the prevention of arson or a riot, and
RCW 9.73.040(1) (part).
For convenience, this first statute will be referred to as the "no consent statute" since the electronic eavesdropping it permits is not limited by the statute to situations where one of the participants to the communication or conversation has consented to the eavesdropping. As the above quoted part of this statute makes clear, such an order may only be obtained in very limited situations. Furthermore, "the state attorney general or any county prosecuting attorney" is required to apply for such an order.
The second statute is RCW 9.73.090(2) which was enacted in 1977, some 10 years later.
In order to obtain a court order authorizing electronic eavesdropping under this "one party consent statute", a detailed application under oath is required. The application must state:
(1) The authority of the applicant to make such application;
(2) The identity and qualifications of the investigative or law enforcement officers or agency for whom the authority to record a communication or conversation is sought and the identity of whoever authorized the application;
(3) A particular statement of the facts relied upon by the applicant to justify his belief that an authorization should be issued, including:
(a) The identity of the particular person, if known, committing the offense and whose communications or conversations are to be recorded;
(b) The details as to the particular offense that has been, is being, or is about to be committed;
(c) The particular type of communication or conversation to be recorded and a showing that there is probable cause to believe such communication will be communicated on the wire communication facility involved or at the particular place where the oral communication is to be recorded;
(d) The character and location of the particular wire communication facilities involved or the particular place where the oral communication is to be recorded;
(e) A statement of the period of time for which the recording is required to be maintained, if the character of the investigation is such that the authorization for recording should not automatically terminate when the described type of communication or conversation has been first obtained, a particular statement of facts establishing probable cause to believe that additional communications of the same type will occur thereafter;
(4) Where the application is for the renewal or extension of an authorization, a particular statement of facts showing the results thus far obtained from the recording, or a reasonable explanation of the failure to obtain such results;
(5) A complete statement of the facts concerning all previous applications, known to the individual authorizing and to the individual making the application, made to any court for authorization to record a wire or oral communication involving any of the same facilities or places specified in the application or involving any person whose communication is to be intercepted, and the action taken by the court on each application; and
(6) Such additional testimony or documentary evidence in support of the application as the judge may require.
RCW 9.73.130 (part).
The issues herein also require reference to the federal statutes on this subject. The most notable difference between federal statutes controlling electronic eavesdropping and our state statutes on the subject is that under federal law if one participant consents, then the police can record or electronically overhear a communication or conversation and the prosecutor can play the tape or elicit testimony as to what the police heard, without the necessity of first obtaining judicial approval.
By federal statute, only " [t]he Attorney General, or any Assistant Attorney General specially designated by the Attorney General, may authorize an application ..." 18 U.S.C. § 2516. Defendants argue that the body of case law which mandates strict construction of that federal statute requires, in turn, that we strictly construe the language of RCW 9.73.040(1) which allows orders to be issued "upon verified application of either the state attorney general or any county prosecuting attorney". On that basis, they ask this court to hold that only the elected attorney general or an elected prosecuting attorney can apply for such an order, and that we strike down the court orders authorizing electronic eavesdropping that were entered in this case since neither the Attorney General nor the Pierce County Prosecuting Attorney personally signed the applications. Whatever merit such an argument might have under the no consent statute (RCW 9.73.040(1)), it is not well taken under the one party consent statute (RCW 9.73.090(2)) which requires only that "a law enforcement officer acting
Issue Three.
Conclusion. Information obtained by federal officers from electronic eavesdropping conducted by them in accordance with federal law can legally be furnished to state officers; and such information may, in turn, properly be used by state officers for the purpose of establishing probable cause to obtain the issuance of an order from a state court authorizing electronic eavesdropping in accordance with state statutes.
As discussed above, state statutes require prior court approval for electronic eavesdropping in both one party consent situations and no consent situations, but court approval in one party consent situations is not required for federal officers acting pursuant to federal statutes. In State v. Williams, 94 Wn.2d 531, 534, 617 P.2d 1012 (1980), which dealt with one aspect of this conflict between state and federal statutes, this court ruled as follows:
We hold our state privacy act applies to interceptions and recordings by federal agents and that tape recordings obtained in violation of our act are inadmissible in state court proceedings. That act also prohibits testimony about those recorded conversations, when the recording itself is suppressed.
(Italics ours.)
In Williams, the word "inadmissible" was used advisedly. The court there ruled as it did in reliance on a state statute, Williams, at 541, which specifically renders information obtained in violation of state electronic eavesdropping statutes "inadmissible in any civil or criminal case in all courts of general or limited jurisdiction in this state . . ."
Here the trial court found probable cause for the issuance of each of the Superior Court orders authorizing electronic eavesdropping. It also ruled that "[i]nformation obtained from [sic] federal agents from the eleven (11) federal tapes which preceded the first State authorized intercept and recording when verbally reported to State officers constituted valid information for determining whether 'probable cause' existed for the issuance of State authority to intercept and record."
A basic difference between the situation in this case and the one that the court was confronted with in Williams is that the information here obtained by the Pierce County Sheriff was obtained pursuant to a court order authorizing the electronic eavesdropping. There was no such order in Williams. There, the prosecutor in a state prosecution tried to put recordings obtained by federal authorities directly into evidence; and the prosecutor also tried to put informa
This court has never suggested that evidence obtained by federal authorities acting in strict accordance with federal law was illegal. Such evidence was held inadmissible in Williams, but it was not illegal. There is a difference.
Federal statutes relating to electronic eavesdropping specifically authorized the cooperation between federal and state law enforcement agencies which occurred here:
(1) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.
(2) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire or oral communication or evidence derived therefrom may use such contents to the extent such use is appropriate to the proper performance of his official duties.
18 U.S.C. § 2517 (part).
The National Wiretapping Commission Report, submitted to President Ford and Congress in 1976, was a comprehensive summary of events and developments attendant upon implementation of the federal statutes relating to electronic surveillance, namely Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. §§ 2510-2520). The primary author of the Commission's Report, Professor James B. Carr, is the author of a comprehensive and informative treatise on the subject, The
Pertinent to the issue before us, Professor Carr therein explains the policy and purpose of the above quoted federal statutes:
Where one law enforcement officer has learned the contents of a communication by any means authorized by Title III, under §2517(1) he may disclose such contents to another law enforcement officer "to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure." The purpose of this provision is to authorize the exchange of eavesdropping information among law enforcement personnel generally, and between state and federal officials particularly.
Although Senate Report 1097 indicates that both officers in such exchange must be engaged in the proper performance of their duties, Congress, as revealed by other aspects of the legislative history, intentionally wrote §2517(1) in the disjunctive. The original draft of Title III required both parties to the exchange to be engaged in the proper performance of their duties, and there was considerable congressional concern about allowing one party to the exchange to provide or receive disclosures outside the scope of his lawful duties. Despite these concerns, §2517(1) was adopted in its present form.
(Footnotes omitted.) J. Carr, Electronic Surveillance § 7.04[1], at 433 (1977).
The further discussion in that text concerning use by state officers of evidence obtained by federal officers in states which prohibit electronic surveillance is likewise pertinent insofar as it bears on situations such as that present in this state, where evidence not obtained in accordance with state statutes is inadmissible in state court proceedings:
Once federal officers have made their eavesdropping evidence available to state officers whose jurisdiction prohibits law enforcement electronic surveillance, the state officers probably can use such evidence. Most prohibitory statutes cover only interception or divulgence, or*871 both, but not use. Where the state officers were not involved in the original interception, they, like federal officers prior to Title III, do not violate the state prohibition by using the surveillance information obtained from the federal authorities.
If a state prohibitory statute were to be applied to prevent such use, it might be deemed to be in conflict with the explicit provisions of §§2517(1) and (2). In view of the congressional intention to encourage and facilitate close federal-state cooperation, such conflict would raise difficult preemption issues. Although the state statute would restrict the use of eavesdropping evidence, and thereby, perhaps, surveillance itself, such restriction would impede federal law enforcement activities which were specifically encouraged by §2517(2).
Such preemption would reach only to allowing state officers to use federally derived evidence for investigative purposes. It would not prohibit the states from excluding such evidence in state trials.
(Footnotes omitted. Italics ours.) J. Carr, Electronic Surveillance § 7.04[2][a], at 435-36 (1977).
The italicized paragraph in the foregoing quotation thus supports the proposition that even where federally obtained electronic eavesdropping information is excluded from evidence by statute, as Williams held to be the law of this state, that does not exclude its use in establishing probable cause as we here hold to be appropriate. Accordingly, we do not view our holding herein as incompatible with the holding of this court in Williams.
Here the Pierce County Sheriff's deputies were not involved in the FBI wiring of the informant and the obtaining of the 11 federal recordings. No suggestion has been made herein as to any collusion for the purpose of avoiding the requirements of Washington law. What was involved, rather, was cooperation between federal and state officers investigating crime and payoffs in Pierce County and that was not improper.
Issue Four.
Conclusion. The electronic eavesdropping authority sought by the sheriff and granted by the court in this case did not terminate when the initial conversation concerning bribery was recorded.
Two state statutes pertain to the time period within which electronic eavesdropping is to be conducted under this state's one party consent statute. One section of the statute provides that " [authorizations issued under this section shall be effective for not more than seven days, after which period the issuing authority may upon application of the officer who secured the original authorization renew or continue the authorization for an additional period not to exceed seven days." RCW 9.73.090(4). The other section is RCW 9.73.130(3)(e), which requires that applications for a court order contain '' [a] statement of the period of time for which the recording is required to be maintained, if the character of the investigation is such that the authorization for recording should not automatically terminate when the described type of communication or conversation has been first obtained, a particular statement of facts establishing probable cause to believe that additional communications of the same type will occur thereafter; ..."
These state statutes are patterned after sections of Title III of the Omnibus Crime Control and Safe Streets Act of 1968.
The first Superior Court order authorizing electronic eavesdropping is set out in full under "Facts of Case" above. Pursuant to that one order, conversations were apparently recorded on separate days with defendants O'Neill, Bennett and Chu. The defendants argue: that the conversations subsequent to the initial one with O'Neill were not within the purview of the order; that the subsequent recordings of the conversations with Bennett and Chu should be suppressed; and that the yet later recordings of the defendant Chu (and inferentially of other defendants as well), having been derived from such earlier "illegal" recordings should on that basis also be suppressed.
The court order in question was not a roving commission authorizing the deputy sheriffs to overhear and surreptitiously record any conversation in Pierce County that they chose to, as defendants appear to suggest.
The detailed application for the initial order authorizing electronic eavesdropping clearly showed that the offense under investigation was of an ongoing conspiratorial nature and involved, or potentially involved, several people. The application referred in the plural to conversations regarding prostitution operations, "laundering" of funds from such operations, making monthly payoffs and ended by requesting authority to record "communications or conversations". The order itself also referred to recording "communications or conversations". The order authorizing electronic eavesdropping arguably contained a measure of ambiguity so far as the length of the surveillance term authorized by the order is concerned. The trial court, however, ruled as to this that the authority granted by the order "is not limited to one conversation but instead authorizes recording of all communications and conversations of defendant O'Neill and others present concerning bribery of a law enforcement officer for a period of seven (7) days."
In the issuance of a conventional search warrant, a principal protection of a citizen's Fourth Amendment rights is the neutral and detached magistrate interposed between
Affirmed and remanded for further proceedings.
Dolliver, C.J., Utter and Brachtenbach, JJ., and Cunningham, J. Pro Tern., concur.
RAP 2.3; RAP 4.2.
See State v. Prather, 30 Wn. App. 666, 669, 638 P.2d 95 (1981). See also Blondheim v. State, 84 Wn.2d 874, 879, 529 P.2d 1096 (1975).
RCW 9A.04.020(1)(b); 12 Am. Jur. 2d Bribery § 6 (1964); State v. Womack, 4 Wash. 19, 25, 29 P. 939 (1892); State v. Smith, 252 La. 636, 212 So. 2d 410 (1968); Deehl o. Knox, 414 So. 2d 1089 (Fla. Dist. Ct. App. 1982). See also RCW 9A.08-.010(l)(a); Washington State Crim. Just. Training Comm'n, Revised Criminal Code Training Seminar Manual § 9A.68 (compiled and edited by G. Golob & G. Mooney 1976).
United States v. Heliczer, 373 F.2d 241, 245 (2d Cir., cert. denied, 388 U.S. 917 (1967); United States v. Waylyn Corp., 130 F. Supp. 783, 786 (D.P.R. 1955).
Bellevue v. Miller, 85 Wn.2d 539, 541, 536 P.2d 603 (1975); State v. Zuanich, 92 Wn.2d 61, 63, 593 P.2d 1314 (1979); State v. Holmes, 98 Wn.2d 590, 597-98, 657 P.2d 770 (1983).
Olmstead v. United States, 277 U.S. 438, 72 L. Ed. 944, 48 S. Ct. 564, 66 A.L.R. 376 (1928), dissent by Holmes, J., 277 U.S. at 470.
S. Rep. No. 1097, 90th Cong., 2d Sess. 67, reprinted in 1968 U.S. Code Cong. & Ad. News 2154.
J. Carr, Electronic Surveillance § 1.01[1], at 2, 3 (1977).
Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, Title III, § 802, 82 Stat. 212 (1968), amended by 18 U.S.C. § 2510 et seq. (1970).
State v. Williams, 94 Wn.2d 531, 538, 617 P.2d 1012 (1980).
See Williams, at 547; State v. Kichinko, 26 Wn. App. 304, 307-11, 613 P.2d
State v. Wright, 84 Wn.2d 645, 650, 529 P.2d 453 (1974).
Wright, at 650. See also Williams, at 547.
RCW 9.73.030-.140; State v. Wanrow, 88 Wn.2d 221, 227-32, 559 P.2d 548 (1977).
Laws of 1967, 1st Ex. Sess., ch. 93, § 2, p. 1821.
RCW 9.73.040(1).
RCW 9.73.040(6).
Laws of 1977, 1st Ex. Sess., ch. 363, § 3, p. 1675.
RCW 9.73.090(4).
RCW 9.73.140.
RCW 9.73.120.
18 U.S.C. § 2511(2)(c). See C. Fishman, Wiretapping and Eavesdropping § 8 (1978).
See also United States v. Shields, 675 F.2d 1152, 1158 (11th Cir. 1982).
See State v. Williams, 94 Wn.2d 531, 617 P.2d 1012 (1980).
18 U.S.C. §§ 2515-2518.
RCW 9.73.040(1); RCW 9.73.050.
Findings of Pact and Conclusions of Law Regarding Admissibility of Taped Recordings and Constitutionality of Statute (conclusion of law 21).
RCW 9.73.050; State v. Williams, 94 Wn.2d 531, 617 P.2d 1012 (1980).
United States v. Hall, 543 F.2d 1229, 1233 n.2 (9th Cir. 1976).
18 U.S.C. § 2518(1)(d), § 2518(5).
See J. Carr, Electronic Surveillance § 4.05[5], at 185 (1977).
RCW 9.73.090(4).
See Berger v. New York, 388 U.S. 41, 59, 18 L. Ed. 2d 1040, 87 S. Ct. 1873 (1967).
RCW 9.73.130.
Findings of Fact and Conclusions of Law Regarding Admissibility of Taped Recordings and Constitutionality of Statute (conclusion of law 5).
See State v. Olson, 32 Wn. App. 555, 557, 648 P.2d 476 (1982).
Johnson v. United States, 333 U.S. 10, 14, 92 L. Ed. 436, 68 S. Ct. 367 (1948); Franks v. Delaware, 438 U.S. 154, 170, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978).
See J. Carr, Electronic Surveillance § 2.05A, at 3-4 (Supp. 1984); C. Fishman, Wiretapping and Eavesdropping § 6, at 7-8 (1978); United States v. Santora, 583 F.2d 453, 462 n.6 (9th Cir. 1978).
Concurring in Part
(concurring in part, dissenting in part) — I concur with the result reached by the majority. The trial court properly denied both the motion to dismiss and the motion to suppress evidence. First, the motion to dismiss was properly denied because "corrupt intent" is an element of
I dissent to the majority's holding that probable cause for a state interception of conversations can be established by federal interceptions that violate state law. The majority's holding violates the privacy interests of Washington residents guaranteed by the Washington privacy act, undermines the protections of article 1, section 7 of the Washington State Constitution, and encourages subterfuge and evasion with respect to state law.
In the subject case, the state and federal law enforcement authorities conducted a joint investigation into Pierce County sauna activities. During the course of their cooperative activities, 13 tape recordings were made by federal agents. These recordings did not satisfy the requirements of our Washington privacy act, RCW 9.73, and were, therefore, illegally obtained under Washington law. The federal recordings were utilized by the State, however, in submitting information on such tapes to superior court judges for determining probable cause to authorize secret recordings by state agents.
The federal wiretap statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, deals with wire interception and interception of oral communications. 18 U.S.C. §§ 2510-2520. Its purpose is to protect the privacy of wire and oral communications and to delineate on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized. Halpin v. Superior Court, 6 Cal. 3d 885, 495 P.2d 1295, 101 Cal. Rptr. 375 (1972).
Title III prohibits most interceptions of either wire or oral communications when neither party consents to the
The provisions of Title III which govern the receipt, disclosure, and use of wiretap-derived information by law enforcement officers provide as follows:
(1) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure.
(2) Any investigative or law enforcement officer who, by any means authorized by this chapter, has obtained knowledge of the contents of any wire or oral communication or evidence derived therefrom may use such contents to the extent such use is appropriate to the proper performance of his official duties.
(Italics mine.) 18 U.S.C. § 2517(1), (2). Under these provisions, a state officer may receive and use wiretap information only to the extent that such receipt and use is appropriate for the proper performance of his official duties. The scope of a state officer's official duties is defined by state law.
The legislative history of Title III indicates that Congress
The State of Washington attempted to curtail wiretapping before the federal statute was adopted. In 1967, Washington enacted RCW 9.73.030-.080, making it unlawful for anyone not operating under a court order to intercept or divulge certain communications without the consent of all persons engaged in the communications or conversations. This law was characterized as an all party consent law. The law provides that a court ordered wiretap can be authorized when there are reasonable grounds to believe that national security or human life is endangered. RCW 9.73.040. As originally adopted, RCW 9.73 is one of the most restrictive electronic surveillance laws ever promulgated.
In 1970, the statute was amended to exclude certain police and fire department functions such as recording of incoming telephone calls. Laws of 1970, 1st Ex. Sess., ch. 48, § 1 (codified at RCW 9.73.090(1)). In State v. Wanrow, 88 Wn.2d 221, 559 P.2d 548 (1977), this court interpreted RCW 9.73.090(1) to except emergency telephone calls to police from the prohibition against the unconsented recording of private conversations only for the purpose of insuring the accuracy of their reception. This provision does not affect the application of RCW 9.73.050 under which nonconsensual recordings of private conversations are inadmissible as evidence.
In light of Wanrow, the Legislature again amended RCW 9.73. The original Senate proposals would have conformed
The statute provides that it is unlawful for any individual to violate its provisions. RCW 9.73.030. The statute excludes all evidence acquired in violation of the statute or court order, RCW 9.73.050, and provides both a civil and criminal penalty. RCW 9.73.060 and .080.
Thus, the Washington privacy act significantly expands the minimum standards of the federal statute and offers a greater degree of protection to Washington citizens. The state act requires both one party consent and probable cause, whereas the federal wiretap statute simply provides that it is not unlawful to intercept communications where one party consents to the interception.
In the present action, probable cause for the court ordered state interception was based in part on interception and recording of conversations in accordance with the federal wiretap statute, but in violation of the more restrictive state statute. The majority condones this activity on the basis that the federal information was not admitted in the state criminal trial proceeding and the federal statutes mandate for cooperation between federal and state law enforcement agencies. I cannot agree.
The Washington privacy act provides that one party consent recordings are unlawful without prior court
The primary purpose of the Washington privacy act is to protect the privacy of individuals by prohibiting public dissemination, even in the course of a criminal proceeding, of illegally obtained information. State v. Williams, 94 Wn.2d 531, 542-43, 617 P.2d 1012 (1980); State v. Wanrow, 88 Wn.2d 221, 233, 559 P.2d 548 (1977). In Williams, we held that the prohibitions of the state act were applicable to federally authorized interceptions which did not comply with the state statute. Recordings made by federal agents, as well as testimony as to the content of the conversations, were inadmissible in a criminal proceeding. The basis of our holding in Williams was the illegality of the wiretap under state law, the statutory prohibition of admissibility of unlawfully obtained information, the statute's application to any individual, and the specific expectation of privacy an individual has under the Washington privacy act.
Similarly, in State v. Henderson, 16 Wn. App. 526, 557 P.2d 346 (1976), the Court of Appeals held that evidence obtained in violation of RCW 9.73 cannot be used for impeachment. The court stated:
Although Henderson did not directly seek the admission of " [a]ny information obtained in violation of RCW 9.73.030" (RCW 9.73.050), his use of the transcription clearly violated the statute's intended purpose of preventing "encroachment upon the privacy of the parties to a conversation." State v. Grant, 9 Wn. App. 260, 265, 511 P.2d 1013 (1973).
Henderson, at 530.
The same is true in the instant criminal proceeding. Although the State did not seek the admission of the information obtained in violation of the state privacy act, the use of the illegally obtained information in the probable cause determination clearly violated the act's intended pur
A well established principle of probable cause determinations is that illegally seized evidence cannot be used to establish probable cause. State v. Bean, 89 Wn.2d 467, 572 P.2d 1102 (1978); State v. Jones, 22 Wn. App. 447, 591 P.2d 796 (1979). This is equally true of the use of information from an illegal wiretap or interception in support of a subsequent intercept. United States v. Giordano, 416 U.S. 505, 529-34, 40 L. Ed. 2d 341, 94 S. Ct. 1820 (1974); see also C. Fishman, Wiretapping and Eavesdropping § 80 (1978). The United States Supreme Court also has indicated that evidence obtained in violation of intercept and recording statutes may not be used in any sense:
To forbid the direct use of methods thus characterized but to put no curb on their full indirect use would only invite the very methods deemed "inconsistent with ethical standards and destructive of personal liberty." What was said in a different context in Silverthorne Lumber Co. v. United States, 251 U. S. 385, 392, [64 L. Ed. 319, 40 S. Ct. 182, 183, 24 A.L.R. 1426,] is pertinent here: "The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court, but that it shall not be used at all." See Gouled v. United States, 255 U. S. 298, 307 [65 L. Ed. 647, 41 S. Ct. 261, 264],
Nardone v. United States, 308 U.S. 338, 340-41, 84 L. Ed. 307, 60 S. Ct. 266 (1939).
Employing the same logic to the case at bench, it follows that information obtained in violation of RCW 9.73.030 not only may not be used at trial, but also may not be used to establish probable cause for issuance of court authorized intercepts pursuant to RCW 9.73.090(2). To conclude otherwise is to encourage state officers to break faith with the State and its citizens and violate clearly expressed state policy. Though Congress did contemplate close cooperation
Individuals residing in Washington have a legitimate interest in restricting the admissibility of evidence derived from the federal intercept in state court proceedings. The privacy interests of individuals concerning illegally obtained evidence are protected by the requirement that such evidence not be used against such individuals. Violation of the state privacy act by the joint federal/state investigation represents the kind of intrusion that the exclusionary rule is designed to prevent. Refusal to employ the strict state standards to the wiretap evidence gathered by federal agents in contravention of state law has the effect of impairing legitimate state privacy interests.
Article 1, section 7 of the Washington State Constitution provides: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." This constitutional guaranty confers upon the citizenry of this state a right to be free from unreasonable governmental intrusions. State v. Jackson, 102 Wn.2d 432, 443, 688 P.2d 136 (1984). The exclusionary rule is applicable whenever the right of an individual to be free from unreasonable governmental intrusions under article 1, section 7 is unreasonably violated. State v. White, 97 Wn.2d 92, 110, 640 P.2d 1061 (1982).
This court has recognized that the exclusionary rule should be applied to achieve three objectives:
first, and most important, to protect privacy interests of individuals against unreasonable governmental intrusions; second, to deter the police from acting unlawfully in obtaining evidence; and third, to preserve the dignity of the judiciary by refusing to consider evidence which has been obtained through illegal means.
State v. Bonds, 98 Wn.2d 1, 12, 653 P.2d 1024 (1982).
The statutorily imposed requirement of establishing probable cause for issuance of warrants for state intercepts
Policy arguments rooted in deterrence and maintaining judicial integrity, the other objectives which are said to be served by the exclusionary rule, have great validity here. A blanket suppression rule governing the use of unlawfully obtained wiretap evidence for purposes of determining probable cause would deter state and federal officers from violating state law.
I perceive no basis for distinguishing between the exclusionary rule of RCW 9.73.050 and the use prohibition of RCW 9.73.030; each of those provisions is a device for eliminating an invasion of privacy whether in its inception or derivative thereof. If evidence obtained in conformity with federal standards but in violation of state law is excluded in state court proceedings under RCW 9.73.050, State v. Williams, 94 Wn.2d 531, 617 P.2d 1012 (1980), its use by state officers in a probable cause proceeding continues to be precluded by RCW 9.73.030.
It is contrary to reason and common sense for the majority to contend that the federal wiretap information in Williams was not illegal. It is the fact that such evidence is illegal under Washington law that requires it to be held inadmissible in a state court proceeding pursuant to RCW 9.73.050. See Williams, at 536. In the present case, it is not the exclusionary rule of RCW 9.73.050 which prohibits the use of this illegally seized information, but the application of the firmly established principles of article 1, section 7 that illegally seized information shall not be used in a court proceeding to establish probable cause for a subsequent seizure which requires exclusion of the federal wiretap.
The majority has, in effect, created a new version of the "silver platter doctrine". According to the original silver platter doctrine, evidence obtained by state officials and turned over to federal officials would not be suppressed
Free and open cooperation between state and federal law enforcement officers is to be commended and encouraged. Yet that kind of cooperation is hardly promoted by a rule that implicitly invites federal officers to withdraw from such association and at least tacitly to encourage state officers in the disregard of constitutionally protected freedom. If, on the other hand, it is understood that the fruit of an unlawful search by state agents will be inadmissible in a federal trial, there can be no inducement to subterfuge and evasion with respect to federal-state cooperation in criminal investigation. Instead, forthright cooperation under constitutional standards will be promoted and fostered.
Elkins, at 221-22.
The majority's holding invites state law enforcement personnel to withdraw from initial association with federal officers and tacitly encourages the federal officers to disregard our statutory prohibitions. The silver platter doctrine would then permit state use of this illegally obtained information to obtain state court authorization for its own interception.
To allow the illegally obtained evidence to be used to establish probable cause would simply encourage law enforcement to do indirectly that which they cannot legally do directly. This court should not condone such an incentive to circumvent the purpose and intent of the state privacy act by subterfuge and evasion of state-guaranteed privacy interests.
I would hold that the information obtained by the federal officers was illegal under Washington law and should have been excluded from the probable cause determination. Such a rule is consistent with the Williams opinion, rein
Furthermore, such a holding does not require a finding that the state orders in the instant action were improperly issued. The affidavits establish probable cause for issuance of the warrants independent of the information contained in Federal Bureau of Investigation tapes. This court recently reaffirmed the Aguilar-Spinelli 2-pronged test for evaluating the existence of probable cause in relation to informants' tips. State v. Jackson, 102 Wn.2d 432, 688 P.2d 136 (1984). For an informant's tip (as detailed in an affidavit) to create probable cause for a search warrant to issue, (1) the officer's affidavit must set forth some of the underlying circumstances from which the informant drew his conclusions so that a magistrate can independently evaluate the reliability of the manner in which the informant acquired his information; and (2) the affidavit must set forth some of the underlying circumstances from which the officer concluded that the informant was credible or his information reliable. Jackson, at 435. The affidavit submitted by Sergeant Gibbs meets this 2-pronged test. Exhibit B.
The first, or "basis of knowledge", prong requires a revealing of some underlying factual justification for the informant's conclusion so that an assessment of the probable accuracy of the informant's conclusion can be made. State v. Sieler, 95 Wn.2d 43, 48, 621 P.2d 1272 (1980). Generally the surest way to satisfy the "basis of knowledge" prong is by showing that the informant is passing on what is to him firsthand information. 1 W. LaFave, Search and Seizure § 3.3 (1978). In the affidavit submitted by Sergeant Gibbs in the instant case, paragraph (2)(g) clearly establishes the informant's firsthand knowledge:
Between 4/25/83 and 6/08/83 Confidential Informant #421 and [defendant] Chong Sim O'Neill had several conversations regarding the sauna operations . . .
Hence, the first prong of the Aguilar-Spinelli test is met.
Under the second or "veracity" prong, sufficient facts
Accordingly, there existed lawful grounds, independent of the illegal federal tapes, in support of the state court warrants for intercept of conversation.
Conclusion
Washington State has chosen to grant its citizenry a greater privacy interest in communications than mandated by federal law. Where the State chooses to enforce this privacy interest by prohibiting certain conduct by its law enforcement officers, that prohibition stands as a limitation of the state officer's authority to otherwise use information obtained in violation of the privacy interests of its citizenry.
I submit that the construction of the Washington privacy act by which the majority sustains the use of illegally obtained wiretap information, a construction which labels a direct violation of the state's privacy act appropriate to the proper performance of the state officer's official duties, is no inconsequential intrusion on the privacy interests of our citizenry. Reading into the state privacy act the legislative intent to permit illicit investigative cooperation decried by state law, not only is an undeserved blight on our Legislature but a compromise of the integrity of the Washington judiciary as well. In my view, due respect to our Legislature and the integrity of our judiciary forbids our ignoring, if not rewarding, a state officer's violation of the commands of the sovereignty which employs him.
Pearson, J., concurs with Dore, J.
Reference
- Full Case Name
- The State of Washington, Respondent, v. Chong Sim O'Neill, Et Al, Petitioners
- Cited By
- 54 cases
- Status
- Published