State v. Fjermestad

791 P.2d 897, 114 Wash. 2d 828, 1990 Wash. LEXIS 66
CourtWashington Supreme Court
DecidedJune 7, 1990
Docket56277-6
StatusPublished
Cited by161 cases

This text of 791 P.2d 897 (State v. Fjermestad) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Fjermestad, 791 P.2d 897, 114 Wash. 2d 828, 1990 Wash. LEXIS 66 (Wash. 1990).

Opinions

Callow, C.J.

— This case was certified to this court by the Court of Appeals pursuant to RCW 2.06.030(d) because of its broad public import. The issue presented is whether the use of an electronic body wire by detectives, without court authorization and in violation of Washington's privacy act, RCW 9.73, renders all evidence of the transaction inadmissible and thus mandates dismissal. We hold that it does and reverse the defendant's conviction.

The facts are uncomplicated. The Clark County Sheriff's office conducted a 7-month investigation which was aimed at arresting drug dealers.1 The operation was code named ROPED, which stands for Round up People Enterprising in Drugs. As part of the investigation, officers involved in the operation were required, as a matter of departmental policy, to wear "body wires" when they came into contact with suspected drug dealers. The purpose of wearing the wire was to ensure officer safety. The sheriff's office did not seek judicial authorization to transmit the conversation between the defendant and the officer. The sheriff's office was aware of the State's privacy act.

The Clark County Sheriff's office received several complaints about suspected drug activity in the Crown Park area of Camas. On April 23, 1987, the defendant was approached by a Clark County detective in this park and asked about the possibility of purchasing some marijuana. The defendant responded by asking the detective how much he was interested in buying. After discussing the matter for a few moments, the defendant and a friend left the park. They returned a short time later, at which time [830]*830the defendant entered the detective's car and handed him a gram of marijuana in exchange for $10.

During the entire transaction the detective was wearing an electronic transmitter, or body wire. The transmissions were being sent to two other officers who were parked nearby, but out of sight. The transmitter enabled the two officers to hear what was going on in case their assistance was required. The conversation was not taped nor did the listening officers testify at the defendant's trial.

The defendant was charged with delivery of a controlled substance in violation of RCW 69.50.401(a); to wit: marijuana. Prior to a bench trial, the defendant moved to suppress all evidence obtained by police for violation of the privacy act, or alternatively, a dismissal pursuant to CrR 8.3(b) based on claimed misconduct of the police department. The trial court originally denied motions to suppress and to dismiss. After a bench trial, the defendant was convicted.

The defendant petitioned the trial court for reconsideration of the motions to suppress and to dismiss. On reconsideration, the trial court granted the motion to suppress the conversation between the defendant and the officer but denied the motion to dismiss. The bench trial was reopened and the defendant was found guilty based on the officer's visual observations. Judgment and sentence were entered and this appeal followed.

Washington's privacy act, RCW 9.73, at the time of the conduct in question, prohibited the interception or recording of private conversations unless consent was obtained (a) by all the parties involved in the conversation (RCW 9.73-.030) or (b) if judicial authorization was obtained (RCW 9.73.040). The statute made any information obtained in violation of RCW 9.73 inadmissible in civil or criminal cases.

The origin of Washington's privacy act dates back to 1909 when the Legislature enacted RCW 9.73.010 and [831]*8319.73.020.2 In its original form, the privacy act made it unlawful to divulge information in regard to telegrams and also made it unlawful to open sealed letters.

In 1967, the Legislature enacted legislation which made it unlawful to electronically eavesdrop on private conversations without the consent of all the parties involved or unless the conversation fell within an enumerated exception. These exceptions specifically include matters involving a danger to human life, arson, riot or national security.

RCW 9.73.040, enacted in 1967,3 provides a mechanism for obtaining court authorization to intercept private conversations. In order to obtain court authorization in accordance with RCW 9.73.040, the following information must be supplied to a superior court judge upon a verified application of the State Attorney General or a county prosecuting attorney:

(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
(c) There are no other means readily available for obtaining such information.

RCW 9.73.040(1). This statute has been referred to as the "no consent" statute since the electronic eavesdropping it permits is not limited to situations where one of the participants to the communication or conversation has consented to the eavesdropping. State v. O'Neill, 103 Wn.2d 853, 863, 700 P.2d 711 (1985).

At the time RCW 9.73.040 was enacted, the Legislature added RCW 9.73.0504 which deals with admissibility of [832]*832intercepted communications into evidence. RCW 9.73.050 states:

Any information obtained in violation of RCW 9.73.030 or pursuant to any order issued under the provisions of RCW 9.73.040 shall be inadmissible in any civil or criminal case in all courts of general or limited jurisdiction in this state, except . . .

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Bluebook (online)
791 P.2d 897, 114 Wash. 2d 828, 1990 Wash. LEXIS 66, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fjermestad-wash-1990.