conversation> ... holding a confidential relationship to something ... a secret . ~ .
message : a private communication ... SECRETLY : not open or in public.'"
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1804-05 (1969), quoted in
s This holding is consistent with similar federal cases. For example, in Ornelas v. United States, 517 U.S. 690,699, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996), the Supreme Court held that while ·a reviewing court should review findings of historical fact for clear error and give weight to the inferences the trial judge drew from those facts, "as a general matter determinations ofreasonable suspicion and prob.able cause should be reviewed de novo on appeal." The Court reascii1ed th:it not having de novo review would lead to inconsistent results and that independent review is necessary if appellate courts are to maintain control of, and to clarify, legal principles.
10 State v. Kipp, No. 88083-2
Clark, 129 \Vn.2d at 224··25. A communication is private (1) when parties manifest
a subjective intention that it be private and (2) where that expectation is
reasonable. Townsend, 14 7 Wn.2d at 673 .
. Factors bearing on the reasonableness of the privacy expectation include the
duration and sttbj ect matter of the communication, the location of the
cmnmunication and the presence or potential presence of third parties, and the role
\' of the non consenting party and his or her relationship to the consenting party.
Ultimately, the intent or reasonable expectations of the participants as manifested
by the facts and circumstances of each case controls as to whether a conversation is
private. Clark, 129 Wn.2d at 224-27. The reasonable expectation standard calls for
acase-by-case consideration of all the facts. State v. F'aford, 128 Wn.2d 476, 484,
910 P.2d 447 (1996).
Here, Kipp manifested a subjective intention that the conversation be
private. We have found subjective intent that a conversation be private even though
tl~e party does not explicitly state such an intention. See, e.g., Christensen, 153
Wn.2d at 193 (concluding that the defendant subjectively intended for the phone
conversation to be private by asking to speak to his girl friend and that his girl
friend manifested such an intent by taking the phone into her bedroom and closing
the door). Here, as Kipp was going into the kitchen, another family member left,
thereby evidencing his subjective intent that the conversation be between only him
11 State v. Kipp, No. 88083-2
and his brother-in-law. The State argues that Kipp's statement toward the end of
the conversation shows that he did not intend that the conversation be private.
Specifically, the.State iwtes that Kipp said, "[L]ike I say, when we get a chance,
just you and t we will go somewhere and we'll talk, try to ... understand
everything." 2 Verbatim Report of Proceedings (July 28, 2009) at 213. According
to the State, this demonstrates that Kipp did not believe that the conversation was
.private. However, this reasoning is flawed because the statement occurred at the
end of the conversation and demonstrates only that he desired to continue
discussing the matter privately in the future. Thus, we conclude he subjectively
intended that the conversation be private.
Applying the Clark factors, we conclude Kipp' s expectation of privacy was
reasonable. When considering the first factor, duration and subject matter of the
conversation, the parties agree that the 10-minute duration suggests the
conversation was private. With regard to the subject matter of the conversation, we
have held that "inconsequential, nonincriminating" conversations generally lack
the expectation of privacy necessary to be protected under the act. Faford, 128
Wn.2d at 484.
In contrast, an incriminating statement of a serious subject matter is the type
of conversation protected under the act. In Faford, we held that defendants'
neighbor violated the privacy act by eavesdropping on cordless telephone
12 State v. Kipp, No. 88083-2
conversations and that any evidence gained through this violation was
inadmissible. Although the recorded conversations concerned illegal activity-a ' .
marijuana growing operation in the defendants' home-we held that the
defendants had a reasonable expectation of privacy and that both the recordings
and any information gathered from the illegal communications should have been
suppressed. Faford, 128 Wn.2d at 488-89. 6
Conversely in Clark, we held that 16 conversations where the defendants
approached a stranger for brief, routine conversations on the street about drugs
were not private. We limited our holding to those 16 conversations, noting that
there are many illegal transactions that may involve private conversations. Clark,
129 Wn.2d at 231.
Here, the State contends that a person who confesses to child molestation
should expect this information to be reported to the authorities, and therefore it is
unreasonable to expect the conversation to remain private. While this may be true,
it has little, relevance to whether the recording itself is proper. As Kipp points out,
accepting the State's argument would mean that a confession of child molestation
, __________ 6 While the fruit of the poisonous tree doctrine generally does not apply to private , searches, Washington's privacy act is applied broadly as to require exclusion of any "evidence exclusively and din~.ctly f1owing from a privacy act violation." J·iaford, 128 Wn.2d at 489. Any other result would render any privacy protection illusory and meaningless. Faford, 128 Wn.2d at 489.
13 State v. Kipp, No. 88083-2
or any other crime is never subject to a reasonable expectation of privacy. This is
in.direct opposition J,o what we said in Clark and Faford. Instead, the subject . . . . . ·. . ' . . . matter of the conversation in this case was not one that is normally intended to be
ptiblic, demonstrating Kipp's reasonable expectation of privacy.
The second factor-location of the conversation and presence or potential
presence of a third party-also weighs in favor of concluding that the conversation
~ was private because it took place \Vhile Kipp and his brother-in-law were alone in a
private residence. A private horne is normally afforded maximum privacy
protectio~. State v. Hastings, 119 Wn.2d 229, 233, 830 P.2d 658 (1992). The
undisputed facts establish that the conversation took place in the kitchen of a
private resid.ence. Although the State contends that a kitchen is a common area
subject to~ le~ser expectation of privacy, the record shows that the men were alone
and that Kipp'.s brother-in-law asked his son to leave the room so that they could
~alk. It is difficult to separate rooms in a house and label some "private" and some
not. _Both the trial court and Court of Appeals attempt to generalize that all kitchens
are common areas with increased potential for the presence of third parties. But our
determination as to whether a conversation is private requires a case-by-case
analy~is. vVhether other persons were present is more relevant. Here, based on the
location of the conversation and the absence of a third party, it was reasonable for
Kipp to believe the conversation was private. . ~ . ., .
14 State v. Kipp, No. 88083-2
Finally) Kipp's role as the nonconsenting party and his relationship to his
brother-in-law further demonstrate that Kipp had a reasonable expectation of
privacy. Generally, two people in a conversation hold a reasonable belief that one
of them is not recording the conversation. But, in evaluating this factor, we have
found that the nonconsenting parties' willingness to impart the information to a
stranger evidences that the communication is not private. Clark, 129 Wn.2d at 226-
27 (citing Kadoranian, 119 Wn.2d at 190). We have also repeatedly held that
conversations with police officers are not protected under the act. See Lewis, 157
Wn.2d at 460. The parties in this case are not strangers or public officials; they are
family. And contrary to what the State contends, the nature of the relationship
between ~he patties is not altered by the subject matter of the conversation.
Focusing on Kipp's role as "the accused" eviscerates the privacy act's protections
for any person accused of a crime. Under this rationale, the actual relationship
between the parties would be irrelevant. Ifwe accepted the State's argument, this
factor "would always weigh against any accused person who makes an
incriminating statement, yet incriminating statements are the very type of
communication$ usually triggering the privacy act's protections." Kipp, 171 Wn.
App ..at 41-42 (Van Deren, J., dissenting).
We conclude Kipp had both a subjective and reasonable expectation of
privacy as he was speaking in private with his brother-in-law about a very sensitive
15 State v. Kipp, No. 88083-2
matter. 7 Because the recording violated the privacy act, the trial court should have
suppressed it. 8
7 While the recorded conversation violated the privacy act, the State could have solicited testimony from Kipp's brother-in-law regarding Kipp's alleged confession. Kipp's statements would not have been hearsay. ER 801(d)(2)(i) (A statement is not hearsay ifthe statement is offered against a party and is the party's own statement.).
8 Generally, the admission of evidence in violation of the privacy act is subject to a harmless error analysis. Christensen, 153 Wn.2d at 200 ("Failure to suppress evidence obtained in violation of the act is prejudicial unless, within reasonable probability, the erroneous admission of the evidence did not materially affect the outcome of the trial." (citing State v. Porter, 98 Wn. App. 631, 638, 990 P.2d 460 (1999))). Here, the State did not argue that the error was harmless so we need not engage in this analysis.
16 State v. Kipp, No. 88083-2
CONCLUSION
We reverse the conviction and remand for further proceedings.
WE CONCUR:
17 State v. Kipp, No. 88083-2 Fairhurst, J., concurring
No. 88083-2
FAIRHURST, J. (concurring)-! agree with the majority's result that the
recorded telephone conversation between William John Kipp Jr. and his brother-in-
law was private under Washington's privacy act, chapter 9.73 RCW, and that the
conversation should have been suppressed. Majority at 2. I disagree with the
majority's holding that de novo review is appropriate when determining whether a
particular communication is private in a motion to suppress. I d. at 2, 9-10.
Substantial evidence is the appropriate standard as the Court of Appeals recognized
in this case, State v. Kipp, 171 Wn. App. 14, 24-25, 286 P.3d 68 (2012), review
granted, 176 Wn.2d 1024, 301 P.3d 1047 (2013), and we recognized in State v.
Hill, 123 Wn.2d 641, 645-47, 870 P.2d 313 (1994), and most recently in State v.
Schultz, 170 Wn.2d 746, 753, 248 P.3d 484 (2011).
The majority, relying on State v. Clark, 129 Wn.2d 211, 225, 916 P.2d 384
(1996), reaffirms de novo review. Majority at 7 (When facts are undisputed, the
question of whether a particular communication is private is a matter of law 1 State v. Kipp, No. 88083-2 Fairhurst, J., concurring
reviewed de novo. (citing Kadaran ian v. Bellingham Police Dep 't, 119 Wn.2d 178,
190, 829 P.2d 1061 (1992))). Although this language has also been cited in
subsequent cases, see majority at 7, the standard of review was not at issue in those
cases.
The Court of Appeals correctly recognized that Clark should not have relied
on Kadoranian because it was a civil case involving a summary judgment motion.
Kadoranian filed a civil class action lawsuit under the privacy act claiming the
police department inadvertently intercepted one of her private conversations. 119
Wn.2d at 181-83. Applying the civil summary judgment standard of review, that is
the issue could be determined as a matter of law because the facts were undisputed
and "reasonable minds could not differ on the subject," id. at 190, we affirmed the
trial court's summary judgment that it was not a private conversation, id. at 190-
92.
Further, in Hill, decided two years before Clark, we specifically rejected and
overruled de novo review of criminal motions to suppress evidence. In Hill, we
considered a line of cases that imposed a duty on reviewing courts "to undertake an
independent evaluation" when reviewing factual findings in a motion to suppress.
123 Wn.2d at 645. In Hill, we overruled the de novo standard of review in
criminal cases as "an anomaly in Washington law" after determining that there was
2 State v. Kipp, No. 88083-2 Fairhurst, J., concurring
no reason to make a distinction between constitutional claims such as those
involved in a suppression hearing. Id. We recognized that "[t]he trier of fact is in
a better position to assess the credibility of witnesses, take evidence, and observe
the demeanor of those testifying. This remains true regardless of the nature of the
rights involved." I d. at 646-4 7 (citations omitted). We said a reviewing court
should not conduct an independent evaluation of the facts in a motion to suppress,
but rather should review only those facts to which error has been assigned. Id. at
64 7. "This strikes the proper balance between protecting the rights of the
defendant, constitutional or otherwise, and according deference to the factual
determinations of the actual trier of fact." I d.
Clark does not mention or overrule Hill. There is no discussion in Clark of
Hill being incorrect or harmful. As recently as 2011, we stated in criminal cases
that the reviewing court determines whether findings of fact on a motion to
suppress are supported by substantial evidence and whether those findings support
the trial court's conclusions of law. See Schultz, 170 Wn.2d at 753; see also State
v. Winterstein, 167 Wn.2d 620, 628, 220 P.3d 1226 (2009). "'Substantial evidence
exists where there is a sufficient quantity of evidence in the record to persuade a
fair-minded, rational person of the truth of the finding."' Schultz, 170 Wn.2d at
753 (quoting Hill, 123 Wn.2d at 644).
3 State v. Kipp, No. 88083-2 Fairhurst, J., concurring
The substantial evidence standard is the appropriate standard of review when
reviewing a motion to suppress. The trier of fact is in a better position to assess.
Hill, 123 Wn.2d at 646. Here, the trial judge listened to the recording and then
heard argument. 1 Verbatim Report of Proceedings (July 21, 2009), at 58, 62-64.
In her ruling, the trial judge discussed her impressions of the tape, accepted
defense counsel's description of the events as would have been testified to by the
defendant, and described language she heard on the tape that was not covered by
the factors but which she thought reflected the expectation and intent of the parties.
I d.
The Court of Appeals correctly recognized that summary judgment in civil
cases does not have an equivalent procedure in criminal law. The majority cites
State v. Knapstad, 107 Wn.2d 356, 350, 352-53, 729 P.2d 48 (1986), as proof of a
"summary-judgment-like standard of review in criminal cases." Majority at 7 n.3.
While it uses language that sounds like that applied in a civil summary judgment
motion, a Knapstad motion is a specific pretrial criminal motion brought by the
defendant alleging insufficient evidence. If a Knapstad motion is denied, it cannot
be appealed. Also, only the State can appeal when a Knapstad motion is granted,
and the State may refile the charges because a Knapstad dismissal is without
prejudice. See State v. Freigang, 115 Wn. App. 496, 502, 61 P.3d 343 (2002).
4 State v. Kipp, No. 88083-2 Fairhurst, J., concurring
The substantial evidence standard of review does not diminish the reviewing
court's ability to address errors. When considering a motion to suppress, the
reviewing court will ferret out erroneous conclusions of law that are unsupported
by the findings. State v. Lohr, 164 Wn. App. 414, 423-24, 263 P.3d 1287 (2011)
(court erred in concluding defendant's purse was a household item and therefore
subject to search); State v. Jesson, 142 Wn. App. 852, 857-59, 177 P.3d 139 (2008)
(court erred in concluding defendant's gated, secluded property was impliedly
open to the public and therefore police officer had implied consent to enter).
The Court of Appeals correctly adhered to the principles enunciated in Hill
when applying the substantial evidence standard to review the trial court's findings
in the motion to suppress. Kipp, 171 Wn. App. at 18. We should do the same.
5 State v. Kipp, No. 88083-2 Fairhurst, J., concurring