State v. O'NEILL

700 P.2d 711, 103 Wash. 2d 853

• Court: Washington Supreme Court
• Decided: May 30, 1985
• Docket: 50372-9
• Status: Published

Opinions

Andersen, J.

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.¹

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 both state and federal law violations were involved. In any event, it was agreed that a joint investigation would be appropriate. Thereafter, the informant reported separately to the sheriff's office and to the Federal Bureau of Investigation. The informant was first wired with a concealed transmitter or recorder and, as a result, 11 federally authorized intercepts were obtained by the FBI. These were not provided to the sheriff's office and the sheriff's office was not involved in obtaining them. Later, both the informant and the deputy sheriff who accepted payoffs were similarly wired by the sheriff's office, and it is their recorded conversations or intercepts with the five defendants which the defendants here seek to suppress as evidence.

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 and recording of same;

(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 evidence in federal court under federal law but is inadmissible in evidence in a state court under Washington law?

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.

As held in State v. Stroh, 91 Wn.2d 580, 585, 588 P.2d 1182, 8 A.L.R.4th 760 (1979), however, "an implied requirement that criminal intent be proved may be found in a statute, even though it contains no express requirement with respect to intent, upon the assumption that the legislature did not intend to enact an unjust law."² Manifestly, in enacting the bribery statute the Legislature did not intend to proscribe any innocent or constitutionally protected activity by it, but intended to cover only persons acting with a corrupt intent.³ Since we construe this bribery statute as requiring proof of a defendant's corrupt intent, it is not 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.⁴ Persons of common intelligence can understand such a meaning so the statute is not void for vagueness on that account.

Furthermore, even if the outermost boundaries of this statute may be imprecise, any such uncertainty has no relevance here where the payment of bribes to a police officer to allow prostitution is alleged, since such conduct falls squarely within the "hard core" of the statute's proscriptions.⁵

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".⁶ When the United States Senate was considering passage of the Omnibus Crime Control and Safe Streets Act of 1968, the Senate's report on the need for a comprehensive federal law governing electronic surveillance stated the problem as follows:

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 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)^{7 8} have been followed in turn by federal and state legislation designed to protect against their abuse.

The federal act aimed at controlling such abuses is Title III of the Omnibus Crime Control and Safe Streets Act of 1968.⁹ It is a comprehensive statute which regulates the use of, and procedure for, electronic surveillance. Among other things, it establishes standards of admissibility for electronic eavesdropping evidence in federal courts, sets nationwide minimum standards protecting against infringement upon the privacy of citizens by electronic surveillance methods and allows states to create statutory' criteria in this field which are more protective of privacy rights than are federal standards.¹⁰

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.¹¹ Thus, we must consider the entire sequence of statutes relating to this subject, since legislative policies do change;¹² and in ascertaining legislative purpose, we will read together statutes which stand in pari materia as constituting a unified whole, to the end that a harmonious total statutory scheme evolves which maintains the integrity of the respective statutes.¹³

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.¹⁴ Among these exceptions are interceptions obtained pursuant to court order. Two different types of court orders are authorized, each under a different statute. The statutes authorizing such orders were enacted at different times. Applying the rules of construction set forth above, we conclude that the two statutes authorizing court orders, while related, serve the separate purposes set forth below.

The first of these two statutes is RCW 9.73.040 which was enacted in 1967.¹⁵ To obtain an order pursuant to this statute, it must first be shown that:

(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) (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.¹⁶ A court order obtained under this statute is effective for a maximum period of 15 days but may be renewed by the court where appropriate.¹⁷

The second statute is RCW 9.73.090(2) which was enacted in 1977, some 10 years later.¹⁸ Under this statute electronic eavesdropping on an oral communication or conversation may be authorized by the court with the consent of any party to the communication or conversation; therefore, it will be referred to as the "one party consent statute". A court order may be obtained under this statute by "a law enforcement officer acting in the performance of the officer's official duties" and "if there is probable cause to believe that the nonconsenting party has committed, is engaged in, or is about to commit a felony ..." RCW 9.73.090(2). An order obtained under this statute must be "for a reasonable and specified period of time," RCW 9.73-.090(2), and in no event can such an order be effective for longer than a 7-day period without being renewed by the issuing court upon an appropriate showing.¹⁹ Subsequent notice to the subject of the electronic surveillance is also required as provided by statute,²⁰ as are reports thereon to the administrator for the courts.²¹

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;

(f) A particular statement of facts showing that other normal investigative procedures with respect to the offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ;

(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.²² As the United States Supreme Court recently held, ”[n] either the Constitution nor any Act of Congress requires that official approval be secured before conversations are overheard or recorded by Government agents with the consent of one of the con ver - sants." United States v. Caceres, 440 U.S. 741, 744, 59 L. , 99 S. Ct. 1465 (1979).²³ On the other hand, as discussed above, even in one party consent situations a court order approving electronic eavesdropping is required under the law of this state. In the past, when state and federal law enforcement authorities have sought to cooperate in the investigation of crime and corruption in this state, this basic difference between the state and federal statutes has presented legal problems;²⁴ and as will be discussed shortly, it does so again in this case. In no consent situations, however, prior court approval of electronic eavesdropping is required by both federal²⁵ and state statutes.²⁶

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 in the performance of the officer's official duties" make the application. As the record (including the caption of the order set out under "Facts of Case" above) makes clear, the orders in this case were all sought and entered under the one party consent statute. Accordingly, the police officer who made the applications (assisted by a deputy prosecuting attorney) was an appropriate person to apply for the orders. There was no error in this regard.

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 . . ." (Italics ours.) RCW 9.73.050. Defendants argue on the basis of Williams, and other authority of similar import, that information obtained by Pierce County law enforcement authorities from federal law enforcement authorities (based on FBI one party consent tape recordings obtained without a court order) could not be used to establish probable cause for a state court order allowing electronic eavesdropping in accordance with state statutes. We disagree.

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."²⁷ Defendants contend that probable cause for issuance of the Superior Court order authorizing electronic eavesdropping cannot be based upon the federal tape recordings. Defendants do not, however, contend that there was no probable cause for the issuance of the initial Superior Court order if information derived from the 11 federal tapes can be considered; and since we here conclude that the trial court's ruling upholding the use of information from the federal tapes was correct, we do not further address the subject of probable cause for the issuance of the order.

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 information so obtained into evidence indirectly by offering participant testimony about the conversations that had been recorded. That is not the same as holding that the federal recordings were illegal; they were not. The passing mention of "illegality" of the federally obtained tapes in Williams must be considered in context; that is, in that opinion "illegality" was used in the sense of "inadmissibility" of the tapes.

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 Law of Electronic Surveillance (1977).

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:²⁸

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 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.²⁹ Nothing in the law suggests that a legal wall should be erected between federal and state officers investigating vice and corruption in this state; to the contrary, the law encourages their good faith cooperation. When the sheriff's deputies were provided information by the FBI, which had been derived from FBI one party consent recordings, the sheriff's deputies were justified in using it for the purpose of establishing probable cause to procure a state court order authorizing electronic eavesdropping in accordance with state statutes. The trial court did not err in so ruling.

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 1968.³⁰ Although that federal enactment relates to no consent situations, whereas the state statutes just quoted relate to one party consent situations, we may look to the federal law for interpretative assistance. Construing the above state statutes in this light, it can fairly be said that: the duration of an electronic interception should not be longer than necessary under the facts of the particular case; where one-time surveillance fulfills the needs of the investigation being conducted, that is all that should be authorized or conducted; and where a course of conduct is likely to embrace multiple parties and extend over a period of time, the order authorizing electronic eavesdropping may properly authorize proportionally longer surveillance, up to the statutory maximum.³¹ That statutory maximum in one party consent situations is 7 days.³²

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.³³ Pursuant to the order they were authorized to record conversations with a named individual, the defendant O'Neill, and "others present" at the time of such conversations. The subsequent conversations pursuant to this court order, first with the defendant Bennett, and then with the defendant Chu, were both in the presence of defendant O'Neill and appear to have been within the initial 7-day period. Later recordings of conversations were made pursuant to subsequent court orders, each of which was based on a detailed renewal application made in the statutorily prescribed manner.³⁴

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."³⁵ Viewing the court's order in a reasonable and commonsense manner, rather than hypertechnically,³⁶ we conclude that the trial court's interpretation of it was correct.

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 the person requesting the search warrant and its issuance by the court.³⁷ Conventional search warrants and orders authorizing electronic eavesdropping have many similar characteristics; there are, however, some material differences. These differences include the nature of what is sought to be discovered, the method of acquisition and, in many cases, their duration. These practical differences lead in turn to differences in impact. An order authorizing electronic eavesdropping often affects more persons and may involve multiple invasions of privacy. Such an order is also secret to at least one of the parties in one party consent situations (and to all the parties in no consent situations) and, unlike the conventional search pursuant to a search warrant, is not likely to become promptly known to all parties affected.³⁸ It follows from this that in entering any ex parte order authorizing electronic eavesdropping under the laws of this state, the issuing court should not routinely or automatically issue any such order or renewal order that may be sought, but should exercise all reasonable care consonant with the degree of intrusiveness involved so as to prevent the statutorily authorized process from being abused in any way. No such abuse appears in this case.

Affirmed and remanded for further proceedings.

Dolliver, C.J., Utter and Brachtenbach, JJ., and Cunningham, J. Pro Tern., concur.

1 RAP 2.3; RAP 4.2.

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).

3 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).

4 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).

5 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).

6 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.

7 S. Rep. No. 1097, 90th Cong., 2d Sess. 67, reprinted in 1968 U.S. Code Cong. & Ad. News 2154.

⁸

J. Carr, Electronic Surveillance § 1.01[1], at 2, 3 (1977).

9 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).

10 State v. Williams, 94 Wn.2d 531, 538, 617 P.2d 1012 (1980).

11 See Williams, at 547; State v. Kichinko, 26 Wn. App. 304, 307-11, 613 P.2d (1980); State v. Bonilla, 23 Wn. App. 869, 873-74, 598 P.2d 783 (1979).

12 State v. Wright, 84 Wn.2d 645, 650, 529 P.2d 453 (1974).

13 Wright, at 650. See also Williams, at 547.

14 RCW 9.73.030-.140; State v. Wanrow, 88 Wn.2d 221, 227-32, 559 P.2d 548 (1977).

15 Laws of 1967, 1st Ex. Sess., ch. 93, § 2, p. 1821.

16 RCW 9.73.040(1).

17 RCW 9.73.040(6).

18 Laws of 1977, 1st Ex. Sess., ch. 363, § 3, p. 1675.

19 RCW 9.73.090(4).

20 RCW 9.73.140.

21 RCW 9.73.120.

22 18 U.S.C. § 2511(2)(c). See C. Fishman, Wiretapping and Eavesdropping § 8 (1978).

23 See also United States v. Shields, 675 F.2d 1152, 1158 (11th Cir. 1982).

24 See State v. Williams, 94 Wn.2d 531, 617 P.2d 1012 (1980).

25 18 U.S.C. §§ 2515-2518.

26 RCW 9.73.040(1); RCW 9.73.050.

27 Findings of Pact and Conclusions of Law Regarding Admissibility of Taped Recordings and Constitutionality of Statute (conclusion of law 21).

28 RCW 9.73.050; State v. Williams, 94 Wn.2d 531, 617 P.2d 1012 (1980).

29 United States v. Hall, 543 F.2d 1229, 1233 n.2 (9th Cir. 1976).

30 18 U.S.C. § 2518(1)(d), § 2518(5).

31 See J. Carr, Electronic Surveillance § 4.05[5], at 185 (1977).

³²

33 See Berger v. New York, 388 U.S. 41, 59, 18 L. Ed. 2d 1040, 87 S. Ct. 1873 (1967).

34 RCW 9.73.130.

35 Findings of Fact and Conclusions of Law Regarding Admissibility of Taped Recordings and Constitutionality of Statute (conclusion of law 5).

36 See State v. Olson, 32 Wn. App. 555, 557, 648 P.2d 476 (1982).

37 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).

38 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).