State v. Costello

925 P.2d 1296, 84 Wash. App. 150, 1996 Wash. App. LEXIS 672
CourtCourt of Appeals of Washington
DecidedNovember 21, 1996
DocketNo. 14319-8-III
StatusPublished
Cited by2 cases

This text of 925 P.2d 1296 (State v. Costello) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Costello, 925 P.2d 1296, 84 Wash. App. 150, 1996 Wash. App. LEXIS 672 (Wash. Ct. App. 1996).

Opinion

Schultheis, J.

During a drug buy, an undercover police officer wore a body wire authorized for officer safety [152]*152pursuant to RCW 9.73.210.1 The subsequent drug transaction led to Marc Costello’s conviction for delivery of a controlled substance. On appeal, he contends the authorization for the body wire was deficient and that all information obtained during the buy, including the participating officer’s visual observations, should have been suppressed. We affirm.

The relevant facts are not disputed. On March 1, 1994, Detective Rob Linman and another police officer asked Lieutenant Randy Carper to sign an authorization for a body wire. The officers brought with them an authorization form, already filled out, containing the name of the consenting party, Detective Linman; the name of the criminal suspect, Mr. Costello; the name of the recording officer; and the following "[f]acts supporting reasonable suspicion why consenting party may be placed in danger: Linman will be acting in an undercover capacity to purchase cocaine. Since undercover work is inheritantly [sic] dangerous and drug dealers are known to carry guns, an officer security wire is requested.” Lieutenant Carper signed the authorization.

Later that day, Detective Linman, outfitted with a body wire, and confidential informant Steve Hixson went to Mr. Costello’s apartment and bought an eighth ounce of cocaine from Mr. Costello. Three surveillance officers observed the transaction from a distance.

Mr. Costello was charged with one count of delivery of a controlled substance, RCW 69.50.401(a)(l)(i). At the beginning of his trial, he moved to suppress all evidence obtained on the day of the buy, based on a violation of RCW 9.73.210. In particular, he argued the body wire au[153]*153thorization did not contain the names of all those who were expected to participate in the conversation, and did not specify the reasons for believing the consenting party would be in danger. The court denied the motion and Mr. Costello again moved to suppress after the State rested its case. After hearing testimony from Lieutenant Carper, the court denied the motion. The jury found Mr. Costello guilty as charged. His motions for arrest of judgment, new trial or reconsideration of sentence were denied and he now appeals the court’s denials of his motions to suppress.

Essentially, Mr. Costello contends the authorization requirements of RCW 9.73.210 must be strictly followed and any failure to comply requires exclusion of all information obtained during the interception, including the participating officer’s visual observations. Since Detective Linman was the only witness who observed the actual transaction between Mr. Costello and the confidential informant, his testimony was central to the State’s case and highly prejudicial.

While Washington’s privacy act generally prohibits the intercepting and recording of private communications, limited exceptions are authorized by statute. RCW 9.73.030, .090, .095, .210, .230; State v. Jimenez, 128 Wn.2d 720, 723, 911 P.2d 1337 (1996). One such exception is the interception allowed to protect the safety of the consenting party to a private communication during a drug investigation. RCW 9.73.210(1). Before officers can use a body wire pursuant to this statute, a police commander or officer above the rank of first line supervisor must complete a written authorization including the following information: (1) the date and time of the authorization; (2) all persons expected to participate in the conversation, "to the extent known”; (3) the expected date, location and approximate time of the conversation; and (4) "the reasons for believing the consenting party’s safety will be in danger.” RCW 9.73.210(2). The recorded interception cannot be used in any civil or criminal case and must be immediately destroyed unless (1) the recorded person permits [154]*154its use or (2) physical violence occurs during the interception (in which case it may be used in a civil action for personal injury or wrongful death or in a criminal prosecution for a serious violent offense committed against the consenting party). RCW 9.73.210(4), (6). Although the recording itself may not be used in court, "[njothing in this section bars the admission of testimony of a participant in the communication or conversation unaided by information obtained pursuant to this section.” RCW 9.73.210(5).

We agree with Mr. Costello that the authorization signed by Lieutenant Carper was invalid due to its lack of specificity. Although it contains the dates, times and locations required by RCW 9.73.210(2), it does not include all the names of the participants "to the extent known.” Lieutenant Carper admitted at trial he knew a confidential informant was going to participate in the buy and he assumed the officers who filled out the authorization knew who their confidential informant was. Further, the authorization’s conclusive language about the inherently dangerous nature of undercover work with drug dealers, who "are known to carry guns,” is not a sufficiently specific reason to fear for Detective Linman’s safety. No Washington cases address the specificity of the authorization requirements found in RCW 9.73.210, but other privacy act cases stress that the self-authorization statutes must be strictly followed for the authorizations to be valid. State v. Jimenez, 76 Wn. App. 647, 651, 888 P.2d 744 (1995), rev’d on other grounds, 128 Wn.2d 720, 911 P.2d 1337 (1996).

The illegally recorded conversation has since been destroyed and was never mentioned at trial. But Mr. Costello contends that failure to comply with the statute’s authorization procedure requires exclusion of everything Detective Linman saw or heard during the illegal recording.

The two cases he cites for the proposition that the participating officer’s observations must be excluded, State [155]*155v. Salinas2 and State v. Fjermestad,3 were recently distinguished in Jimenez, 128 Wn.2d at 726. Neither of the investigating officers in Salinas and Fjermestad

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Cite This Page — Counsel Stack

Bluebook (online)
925 P.2d 1296, 84 Wash. App. 150, 1996 Wash. App. LEXIS 672, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-costello-washctapp-1996.