IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 87244-3-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION SALEEM MUMIN ROBINSON,
Appellant.
BUI, J. — On the same day he was involved in a vehicle collision, Saleem
Robinson applied and was approved by Progressive for vehicle insurance
coverage. The next day, he contacted Progressive, reported the collision to a
Progressive employee, and filed a claim. Evidence of this recorded telephone
conversation was admitted in his criminal trial for insurance fraud and theft.
Robinson challenges the use of the recorded telephone call, contending that it
violated the “Washington Privacy Act” (WPA). See RCW 9.73.030. We affirm.
FACTS
On May 18, 2021, Saleem Robinson drove and rear-ended a vehicle
driven by Mohamed Waggeh. Both drivers immediately pulled over and
exchanged information. Using his phone, Waggeh took photos of the cars and
documents Robinson presented, which included Robinson’s driver’s license,
vehicle registration, and insurance information. Waggeh testified that the
insurance document had the company name “Accord” and the statement “this
certificate is issued as a matter of information only . . . [t]his certificate does not No. 87244-3-I/2
admit, extend, or [INAUDIBLE] the coverage afforded by the policy below.”
Waggeh contacted the phone number located on that insurance document but he
was not successful reaching anyone. The screenshots of the photos taken by
Waggeh showed time stamps from 12:42 p.m. to 12:46 p.m. Waggeh then
contacted his insurance company GEICO and reported he was in an automobile
collision.
On the same day, May 18, at 6:06 p.m., 1 Progressive approved Robinson
for insurance coverage on the same vehicle involved in the collision. Robinson
purchased insurance coverage online.
The next morning on May 19, Robinson called Progressive to report the
collision and file a claim. During the call, Robinson told a Progressive
representative, named Samantha, the collision occurred on May 18, around 6:15
p.m., which turned out to be false. Robinson told Samantha his name, address,
phone number, and answered a series of questions about the collision. Some of
the questions included whether his vehicle was still drivable, whether there were
fluids leaking from the vehicle, whether the car’s wheels were damaged, if any
airbags deployed, whether there were any injuries, and whether the engine was
starting and running.
At the end of the call, Samantha gave Robinson a claim number and
stated, “a claims representative . . . will be contacting you by end of the next
business day . . . [T]hey’ll go over any additional claim, details, [and] answer any
questions . . . [D]id you want them to contact you on the number you’re calling in
1 The Progressive insurance policy timestamp recorded 9:06 p.m. Eastern Time; all
timestamps in this opinion reflect Pacific Time.
2 No. 87244-3-I/3
[on]?” and Robinson confirmed his callback number. They ended their
conversation, which lasted six minutes. There was no indication, either from
Samantha or any prerecorded message before they spoke that the call would be
recorded.
Robinson’s claim was automatically flagged by Progressive’s system for
investigation because it was filed within 10 days of purchasing an insurance
policy.
After Robinson’s call with Samantha, Robinson engaged in recorded
telephone calls with other Progressive representatives and a detective for the
insurance commissioner. At the beginning of each of these telephone calls,
Robinson was notified the calls were recorded. Robinson had an hour-long
conversation with Progressive’s Special Investigation Unit’s representative,
Zachary Kodatt. Robinson told Kodatt mostly the same information he shared
with Samantha, that he purchased an insurance policy prior to the collision, that
the collision occurred at 6:15 p.m., and that he did not collect any information
from Waggeh or take photos of the scene. Robinson also told Kodatt traffic was
not heavy and explained he did not obtain Waggeh’s information due to a
language barrier. At Kodatt’s request, Robinson filed a police report of the
accident and reported the collision occurred around 6:15 p.m.
The next day on May 20, Progressive’s claims adjuster, Nina Snyder,
called Robinson to get additional information about the accident. Robinson told
Snyder the accident occurred around 6:15 p.m., that he did not obtain information
from Waggeh due to a language barrier, and at the time of the collision, traffic
3 No. 87244-3-I/4
was fairly light. He added he was not able to take pictures of the scene because
his phone slid off the dashboard of his vehicle.
Progressive field investigator, Lisa Hughes, was assigned to conduct
further investigation, after reviewing the information obtained by Kodatt and
Snyder. On June 4, Hughes spoke with Robinson and told him the purpose of the
call, her role in processing the claim, and that Progressive may request additional
documents. A month later, the collision timing was still unconfirmed.
On July 9, Hughes called Robinson again, and the call was recorded. She
asked Robinson to provide a record of his telephone calls on the day of the
collision. The call log revealed Robinson made multiple calls to auto part shops
prior to 6:15 p.m. Hughes followed up with another telephone call to Robinson to
ask him the nature and reasons for his calls to the auto part businesses.
Robinson explained to Hughes that the “young men” he worked with had issues
with their vehicles and he was helping them to contact auto businesses about
possible repairs to their vehicles, not repairs of his own vehicle.
Concurrent with Progressive’s investigation, Waggeh’s insurance
company GEICO also looked into Waggeh’s claim. Geico assigned investigator,
Mitchell Smith to investigate the collision. Waggeh reported to GEICO that the
collision occurred around 12:40 p.m., a different time from what Robinson
reported, on May 18, and Waggeh sent photographs he took of the scene and of
Robinson’s driver’s license. The photographs’ metadata indicated the photos
were taken around 12:40 p.m.
4 No. 87244-3-I/5
On July 12, GEICO notified Progressive that Waggeh’s reported collision
was potentially linked to Robinson’s insurance claim. A day later, Progressive
claim adjuster Lisa McTarsney called Robinson, and during that conversation,
Robinson withdrew his claim. Although Robinson withdrew his claim, Progressive
still had a duty to handle repairs for Waggeh if Robinson had adequate coverage
and was at fault.
On July 21, after McTarsney confirmed the presumed collision time with
GEICO, McTarsney called Robinson to inquire about the date he applied for
coverage in relation to the date of the collision, and whether Robinson “made a
mistake” when he reported the collision time was 6:15 pm. Robinson maintained
he applied for the policy before the collision. McTarsney told Robinson that
Waggeh’s photographs’ metadata showed the collision occurred around 12:40
p.m., and Robinson responded the collision could have occurred earlier than he
remembered.
Progressive referred their investigation to the Washington State Office of
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 87244-3-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION SALEEM MUMIN ROBINSON,
Appellant.
BUI, J. — On the same day he was involved in a vehicle collision, Saleem
Robinson applied and was approved by Progressive for vehicle insurance
coverage. The next day, he contacted Progressive, reported the collision to a
Progressive employee, and filed a claim. Evidence of this recorded telephone
conversation was admitted in his criminal trial for insurance fraud and theft.
Robinson challenges the use of the recorded telephone call, contending that it
violated the “Washington Privacy Act” (WPA). See RCW 9.73.030. We affirm.
FACTS
On May 18, 2021, Saleem Robinson drove and rear-ended a vehicle
driven by Mohamed Waggeh. Both drivers immediately pulled over and
exchanged information. Using his phone, Waggeh took photos of the cars and
documents Robinson presented, which included Robinson’s driver’s license,
vehicle registration, and insurance information. Waggeh testified that the
insurance document had the company name “Accord” and the statement “this
certificate is issued as a matter of information only . . . [t]his certificate does not No. 87244-3-I/2
admit, extend, or [INAUDIBLE] the coverage afforded by the policy below.”
Waggeh contacted the phone number located on that insurance document but he
was not successful reaching anyone. The screenshots of the photos taken by
Waggeh showed time stamps from 12:42 p.m. to 12:46 p.m. Waggeh then
contacted his insurance company GEICO and reported he was in an automobile
collision.
On the same day, May 18, at 6:06 p.m., 1 Progressive approved Robinson
for insurance coverage on the same vehicle involved in the collision. Robinson
purchased insurance coverage online.
The next morning on May 19, Robinson called Progressive to report the
collision and file a claim. During the call, Robinson told a Progressive
representative, named Samantha, the collision occurred on May 18, around 6:15
p.m., which turned out to be false. Robinson told Samantha his name, address,
phone number, and answered a series of questions about the collision. Some of
the questions included whether his vehicle was still drivable, whether there were
fluids leaking from the vehicle, whether the car’s wheels were damaged, if any
airbags deployed, whether there were any injuries, and whether the engine was
starting and running.
At the end of the call, Samantha gave Robinson a claim number and
stated, “a claims representative . . . will be contacting you by end of the next
business day . . . [T]hey’ll go over any additional claim, details, [and] answer any
questions . . . [D]id you want them to contact you on the number you’re calling in
1 The Progressive insurance policy timestamp recorded 9:06 p.m. Eastern Time; all
timestamps in this opinion reflect Pacific Time.
2 No. 87244-3-I/3
[on]?” and Robinson confirmed his callback number. They ended their
conversation, which lasted six minutes. There was no indication, either from
Samantha or any prerecorded message before they spoke that the call would be
recorded.
Robinson’s claim was automatically flagged by Progressive’s system for
investigation because it was filed within 10 days of purchasing an insurance
policy.
After Robinson’s call with Samantha, Robinson engaged in recorded
telephone calls with other Progressive representatives and a detective for the
insurance commissioner. At the beginning of each of these telephone calls,
Robinson was notified the calls were recorded. Robinson had an hour-long
conversation with Progressive’s Special Investigation Unit’s representative,
Zachary Kodatt. Robinson told Kodatt mostly the same information he shared
with Samantha, that he purchased an insurance policy prior to the collision, that
the collision occurred at 6:15 p.m., and that he did not collect any information
from Waggeh or take photos of the scene. Robinson also told Kodatt traffic was
not heavy and explained he did not obtain Waggeh’s information due to a
language barrier. At Kodatt’s request, Robinson filed a police report of the
accident and reported the collision occurred around 6:15 p.m.
The next day on May 20, Progressive’s claims adjuster, Nina Snyder,
called Robinson to get additional information about the accident. Robinson told
Snyder the accident occurred around 6:15 p.m., that he did not obtain information
from Waggeh due to a language barrier, and at the time of the collision, traffic
3 No. 87244-3-I/4
was fairly light. He added he was not able to take pictures of the scene because
his phone slid off the dashboard of his vehicle.
Progressive field investigator, Lisa Hughes, was assigned to conduct
further investigation, after reviewing the information obtained by Kodatt and
Snyder. On June 4, Hughes spoke with Robinson and told him the purpose of the
call, her role in processing the claim, and that Progressive may request additional
documents. A month later, the collision timing was still unconfirmed.
On July 9, Hughes called Robinson again, and the call was recorded. She
asked Robinson to provide a record of his telephone calls on the day of the
collision. The call log revealed Robinson made multiple calls to auto part shops
prior to 6:15 p.m. Hughes followed up with another telephone call to Robinson to
ask him the nature and reasons for his calls to the auto part businesses.
Robinson explained to Hughes that the “young men” he worked with had issues
with their vehicles and he was helping them to contact auto businesses about
possible repairs to their vehicles, not repairs of his own vehicle.
Concurrent with Progressive’s investigation, Waggeh’s insurance
company GEICO also looked into Waggeh’s claim. Geico assigned investigator,
Mitchell Smith to investigate the collision. Waggeh reported to GEICO that the
collision occurred around 12:40 p.m., a different time from what Robinson
reported, on May 18, and Waggeh sent photographs he took of the scene and of
Robinson’s driver’s license. The photographs’ metadata indicated the photos
were taken around 12:40 p.m.
4 No. 87244-3-I/5
On July 12, GEICO notified Progressive that Waggeh’s reported collision
was potentially linked to Robinson’s insurance claim. A day later, Progressive
claim adjuster Lisa McTarsney called Robinson, and during that conversation,
Robinson withdrew his claim. Although Robinson withdrew his claim, Progressive
still had a duty to handle repairs for Waggeh if Robinson had adequate coverage
and was at fault.
On July 21, after McTarsney confirmed the presumed collision time with
GEICO, McTarsney called Robinson to inquire about the date he applied for
coverage in relation to the date of the collision, and whether Robinson “made a
mistake” when he reported the collision time was 6:15 pm. Robinson maintained
he applied for the policy before the collision. McTarsney told Robinson that
Waggeh’s photographs’ metadata showed the collision occurred around 12:40
p.m., and Robinson responded the collision could have occurred earlier than he
remembered.
Progressive referred their investigation to the Washington State Office of
the Insurance Commissioner to determine whether an insurance related crime
occurred. Detective Ron Somerville, the primary investigator, conducted a
recorded phone interview with Robinson on January 20, 2022, where Robinson
stated to Somerville that he purchased the Progressive policy before the
On March 26, 2024, the State filed an amended information, charging
Robinson with felony fraudulent insurance claim and attempted theft in the first
degree. On April 2, the trial court heard, out of the presence of the jury,
5 No. 87244-3-I/6
Robinson’s motion to suppress the telephone conversation with Samantha.
Robinson argued the call was a violation of the WPA because he was recorded
without his consent and he subjectively and reasonably intended for the call to be
private. The trial court entered an oral ruling, denying to exclude the call and
evidence obtained therefrom, concluding that even if Robinson subjectively
intended the conversation to be private, it was not reasonable. The trial court
entered its written ruling on May 9. On April 16, during the jury selection phase of
trial, the court denied Robinson’s motion to reconsider.
The jury deadlocked and was unable to reach a verdict at the first trial. On
September 3, 2024, Robinson had a retrial before a different judge. Robinson
again motioned to suppress the call with Samantha and all evidence derived
therefrom. After hearing argument, the judge adopted the first trial judge’s ruling,
and applied the doctrine of collateral estoppel. The jury found Robinson guilty of
felony fraudulent insurance claim and attempted theft in the first degree.
Robinson timely appealed.
ANALYSIS
Robinson contends the trial court erred by admitting the call with
Samantha and all information derived therefrom, in violation of the WPA. Even if
the trial court erred in concluding the call to Samantha was not protected under
the WPA, its admission was harmless. Thus, we affirm the conviction because
there was no showing of prejudice.
Under the WPA, recording private conversations without the consent of all
parties is generally prohibited. RCW 9.73.030. Our state has a long history of
6 No. 87244-3-I/7
statutory protection of private communications and conversations. State v. Kipp,
179 Wn.2d 718, 724, 317 P.3d 1029 (2014). “Washington State’s privacy act is
considered one of the most restrictive in the nation.” Kipp, 179 Wn.2d at 724.
“Failure to suppress evidence obtained in violation of the [WPA] is prejudicial
unless, within reasonable probability, the erroneous admission of the evidence
did not materially affect the outcome of the trial.” State v. Christensen, 153
Wn.2d 186, 200, 102 P.3d 789 (2004) (citing State v. Porter, 98 Wn. App. 631,
638, 990 P.2d 460 (1999)).
The WPA requires exclusion of “ ‘evidence exclusively and directly flowing
from a privacy act violation.’ ” Kipp, 179 Wn.2d at 731 n.6 (quoting State v.
Faford, 128 Wn.2d 476, 488-89, 910 P.2d 447 (1996)). 2 “For the exclusionary
rule to apply, there must be some proximate causal connection between the
misconduct and the evidence.” State v. Mayfield, 192 Wn.2d 871, 889, 434 P.3d
58 (2019). Even where the misconduct was a “but-for” cause of the discovery of
the evidence, the evidence “ ‘is not subject to suppression under the exclusionary
rule, provided that it ultimately is obtained pursuant to . . . other lawful means
independent of the unlawful action.’ ” Mayfield, 192 Wn.2d at 889 (quoting State
v. Gaines, 154 Wn.2d 711, 718, 116 P.3d 993 (2005)). 3 However, even if the
admission of the call with Samantha was erroneous, any error would be harmless
2 Emphasis added. 3 See also State v. Betancourth, 190 Wn.2d 357, 373, 413 P.3d 566 (2018) (finding
evidence obtained pursuant to a defective warrant admissible because a second valid warrant was issued for the same evidence where the illegal search did not contribute to the issuance of the valid warrant).
7 No. 87244-3-I/8
because the record shows there was incriminating evidence that was obtained
independent from the information gleaned from the call to Samantha.
Progressive had an automatic flagging system that notified its investigative
team to follow up with Robinson because his claim was filed “within seven or
eight minutes of the policy purchase.”
Progressive representatives learned details about the collision from
GEICO representatives, and then using the information gleaned, had multiple
conversations with Robinson, recorded with his consent, where he disclosed
details about the collision.
On July 20 a GEICO representative contacted Lisa McTarsney, a claims
adjuster at Progressive, and told McTarsney the time of the collision was 12:40
p.m. on May 18, a different time than what Robinson reported. GEICO obtained
the date and time of the collision, which it passed on to Progressive, from the
meta data that was generated when Waggeh sent a picture of Robinson’s
driver’s license. McTarsney then followed up by having a recorded conversation
with Robinson, where Robinson admitted the collision could have occurred
earlier in the day than what he previously indicated to Progressive
representatives.
Lisa Hughes, field representative investigator with Progressive, had a
recorded conversation with Robinson where she asked questions about his calls
to vehicle repair shops using the cell phone records that Robinson provided to
Hughes. When Hughes asked Robinson why the calls were made before the time
8 No. 87244-3-I/9
of the collision, Robinson stated he was calling for other individuals about their
cars, and not about his vehicle.
Finally, Robinson had a recorded telephone interview with detectives
Somerville and Ted DeHart from the Office of Insurance Commissioner, where
Robinson maintained his stated position that he purchased his policy before the
In summary, the investigation by the representatives from GEICO,
Progressive, and the office of the insurance commissioner, were independent
and did not flow from the details provided by Robinson during his call with
Samantha. Therefore, the admission of the call with Samantha did not materially
affect the outcome of the trial.
We affirm.
WE CONCUR: