...the guy who went to jail because the mother listened in on a conversation he thought was private).
http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.opindisp&docid=748390MAJ Supreme Court of the State of Washington
Opinion Information Sheet
Docket Number: 74839-0
Title of Case: State of Washington v. Oliver C. Christensen
File Date: 12/09/2004
Oral Argument Date: 10/19/2004
SOURCE OF APPEAL
----------------
Appeal from Superior Court,
County
Honorable Alan R Hancock
JUSTICES
--------
Authored by Tom Chambers
Concurring: Faith Ireland
Barbara A. Madsen
Bobbe J Bridge
Charles W. Johnson
Gerry L Alexander
Richard B. Sanders
Susan Owens
Mary Fairhurst
COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Michael John Tario
Tario & Associates PS
119 N Commercial St Fl 10
Bellingham, WA 98225-4446
Counsel for Respondent(s)
Philip James Buri
Buri Funston PLLC
1601 F Street
Bellingham, WA 98225-3011
Randall Keenan Gaylord
Attorney at Law
PO Box 760
Friday Harbor, WA 98250-0760
Amicus Curiae on behalf of AMERICAN CIVIL LIBERTIES UNION
Douglas B Klunder
Attorney at Law
1603 45th Ave SW
Seattle, WA 98116-1625
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
)
Respondent, ) No. 74839-0
)
v. ) En Banc
)
OLIVER C. CHRISTENSEN, ) )
Petitioner. ) Filed December 9, 2004
)
CHAMBERS, J. - A mother, using the speakerphone function of the family's
cordless telephone system, surreptitiously listened to a conversation
between her daughter and her daughter's boyfriend in which a crime was
discussed. The mother was permitted to testify against the boyfriend at
his trial about what she overheard. We conclude that under the Washington
privacy act, the conversation in question was a private one and the base
unit of the cordless telephone was a device designed to transmit. We
reverse.
STATEMENT OF THE CASE
On October 24, 2000, two young men approached an elderly woman walking down
the street in Friday Harbor, Washington. One of the men grabbed the
woman's purse and, after a struggle in which the woman fell and broke her
glasses, the young men fled with the purse.
San Juan County Sheriff Bill Cumming suspected Oliver Christensen, a local
17-year-old, of involvement in the robbery. He believed that evidence of
the robbery might be found in the house of Christensen's then-girl friend,
Lacey Dixon. Sheriff Cumming contacted Mrs. Dixon, Lacey's mother, and
obtained her consent to search her home for evidence of the crime. He
found no evidence in Mrs. Dixon's home, but asked her to keep a lookout for
any evidence of the crime that might surface.
Christensen later telephoned Lacey. When he called, Mrs. Dixon answered
the telephone. She handed the cordless handset to her daughter, who took
it upstairs into her bedroom and closed the door. Mrs. Dixon activated the
speakerphone function of the cordless telephone system by pressing a button
on the base unit. Mrs. Dixon took notes from the conversation she
overheard, in which Christensen acknowledged to Lacey that he was aware
that police suspected him of the robbery and that he knew the whereabouts
of the purse, but not that he had taken part in the robbery. Neither
Christensen nor Lacey knew of, or consented to, Mrs. Dixon listening to
their conversation.
Over Christensen's objection at trial, Mrs. Dixon testified as to the
substance of the conversation she overheard.1 In addition to Mrs. Dixon,
the State offered the testimony of four other witnesses, only one of whom
could identify Christensen as a participant in the robbery. That witness,
an acquaintance of Christensen's, had agreed to testify for the State on
the same day he agreed to plead guilty to the same robbery. He testified
that on the night of the robbery, he had been high on methamphetamine
during a meth binge but remembered Christensen being involved in the
robbery. Christensen was convicted of second degree robbery.
The Court of Appeals affirmed the trial court's decision to admit Mrs.
Dixon's testimony. State v. Christensen, 119 Wn. App. 74, 79 P.3d 12
(2003). We granted review, State v. Christensen, 151 Wn.2d 1031, 95 P.3d
758 (2004).
DISCUSSION
We must decide whether this state's privacy act was violated when Mrs.
Dixon listened to the conversation between Christensen and Lacey on the
base unit of the cordless telephone without their permission. The act
provides that it is unlawful for any individual to 'intercept, or record
any:'{p}rivate communication transmitted by telephone, telegraph, radio, or
other device between two or more individuals between points within or
without the state by any device electronic or otherwise designed to record
and/or transmit said communication regardless how such device is powered or
actuated, without first obtaining the consent of all the participants in
the communication. RCW 9.73.030(1)(a) (emphasis added). Evidence obtained in violation of the
act is inadmissible for any purpose at trial. RCW 9.73.050.
There are essentially four prongs in analyzing alleged violations of the
privacy act. There must have been (1) a private communication transmitted
by a device, which was (2) intercepted by use of (3) a device designed to
record and/or transmit, (4) without the consent of all parties to the
private communication. RCW 9.73.030.
The parties do not dispute that Mrs. Dixon's act of listening in on the
base unit of the cordless telephone system was an 'intercept' under the
act. There is also no dispute that the intercept was accomplished without
the consent of 'all the participants.' Thus, the only remaining issues are
whether the conversation was a private one and whether the base unit of the
cordless telephone was a device designed to record and/or transmit.
Private Communications
Generally, the question of whether a particular communication is private is
a question of fact, but may be decided as a question of law where the facts
are undisputed. State v. Townsend, 147 Wn.2d 666, 673, 57 P.3d 255 (2002)
(citing State v. Clark, 129 Wn.2d 211, 225, 916 P.2d 384 (1996)). The
facts are not in dispute.
Christensen argues that based on their reasonable expectations and
subjective intent, the conversation between him and Lacey was private. The
State suggests, however, that because Lacey and Christensen knew that it
was possible that their calls would be monitored, their expectation of
privacy was not reasonable despite their subjective intent.
While the term 'private' is not defined in the act, this court has adopted
the dictionary definition: ''belonging to one's self . . . secret . . .
intended only for the persons involved (a 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 (1969), quoted in Townsend, 147 Wn.2d at 673.
A communication is private (1) when parties manifest a subjective intention
that it be private and (2) where that expectation is reasonable. Townsend,
147 Wn.2d at 673. Factors bearing on the reasonableness of the privacy
expectation include the duration and subject matter of the communication,
the location of the communication and the potential presence of third
parties, and the role of the nonconsenting party and his or her
relationship to the consenting party. Clark, 129 Wn.2d at 225-27. We have
held that parties to a conversation on a cordless telephone do not have a
lowered expectation of privacy. State v. Faford, 128 Wn.2d 476, 485, 910
P.2d 447 (1996).
Christensen and Lacey subjectively intended to have a private conversation.
Christensen manifested this intent by asking to speak to his girl friend.
Lacey manifested this intent by taking the cordless telephone from her
mother, going upstairs to her bedroom, and closing the door.
The expectation of privacy was reasonable. The State contends that the
parties' expectation of privacy was not reasonable because they should have
known that someone could have been listening in to their call. We have
repeatedly held that the mere possibility that intrusion on otherwise
private activities is technologically feasible does not strip citizens of
their privacy rights. Faford, 128 Wn.2d at 485 (citing State v. Young, 123
Wn.2d 173, 186, 867 P.2d 593 (1994); State v. Myrick, 102 Wn.2d 506, 513-
14, 688 P.2d 151 (1984)).
The State also suggests that there should be an implied exception to the
act in the case of minor children, arguing that children have a reduced
expectation of privacy because parents have an absolute right to monitor
all telephone calls coming into the family home. The federal wiretap
statute, which makes interception of communications legal where one party
consents, has been interpreted to permit parents acting to protect the
welfare of a child, to consent vicariously for their child to the recording
of their child's conversations. See, e.g., Pollock v. Pollock, 154 F.3d
601, 620 (6th Cir. 1998); Scheib v. Grant, 22 F.3d 149, 154 (7th Cir.
1994); Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir. 1991); Janecka v.
Franklin, 843 F.2d 110, 110 (2d Cir. 1988); Campbell v. Price, 2 F. Supp.
2d 1186, 1191-92 (E.D. Ark. 1998). The Washington act, with its all-party
consent requirement, contains no such parental exception and no Washington
court has ever implied such an exception. We decline to do so now.
The State also alleges that because Mrs. Dixon had listened in to her
daughter's conversations in the past, reasonable expectations of privacy
had been destroyed. There is no evidence in the record, however, that
either Lacey or Christensen was aware of Mrs. Dixon's earlier monitoring.
Furthermore, since it is Christensen's expectation of privacy with which we
are concerned, even if Lacey did have a lowered expectation of privacy
based on the nature of the relationship with her mother, it cannot
reasonably be said that Christensen's expectation was similarly lowered.
The parties' conversation was private.
Device Designed to Transmit
There is no indication that the speakerphone function on the base unit of a
cordless telephone system is a 'device designed to record.' We must, then,
decide whether the base unit of a cordless telephone system is within the
category of 'any device' designed to transmit, a question of first
impression in this court. The interpretation of a statute is a question of
law and subject to de novo review. Rest. Dev., Inc. v. Canawill, Inc., 150
Wn.2d 674, 681, 80 P.3d 598 (2003).
In interpreting a statute, this court's primary obligation is to give
effect to the legislature's intent. Id. This inquiry always begins with
the plain language of the statute. Id. at 681-82. The court must not add
words where the legislature has chosen not to do so. Id. Additionally,
where the statute is subject to more than one reasonable interpretation,
this court may look to other sources of legislative intent, such as the
legislative history. Id.
Christensen argues that the base unit of a cordless telephone system, with
its attached speakerphone component, is a 'device designed to transmit'
under the act. The State argues that the speakerphone portion of the base
unit of a cordless telephone is not such a device.
The section of the privacy act dealing with electronic communications was
passed in 1967, before advances in communications technology such as
cordless and cellular telephones had been developed. Neither the term
'device' nor the term 'transmit' is defined in the statute. Absent a
statutory definition of a term, courts may resort to dictionaries to
ascertain the common meaning of statutory language. See State v. Pacheco,
125 Wn.2d 150, 154, 882 P.2d 183 (1994).
In Faford, another case involving the interception of cordless telephone
conversations, this court rejected the narrow definition of the word
'transmit' that had been adopted by the trial court. On direct review of
the superior court in that case, we held that '{i}n light of the breadth of
the act's purpose,' the preferred definition should include 'alternative
definitions from Webster's Third New International Dictionary, such as
'disseminate' or 'communicate.'' Faford, 128 Wn.2d at 483-84. We further
observed that for the purposes of intercepting a cordless telephone
conversation, 'transmission occurs in the conversion of inaudible sound
waves and their emission as audible sound.' Id. at 483 (citing United
States v. Smith, 978 F.2d 171, 175 n.5 (5th Cir. 1992)).
The State argues that the speakerphone function of the base unit of the
cordless telephone is not within the category of 'any device' designed to
transmit. The State relies primarily on two cases interpreting the act:
State v. Corliss, 123 Wn.2d 656, 870 P.2d 317 (1994) and State v. Bonilla,
23 Wn. App. 869, 598 P.2d 783 (1979).
In Corliss, we held that police did not violate the privacy act by having a
drug informant, who was attempting to arrange drug sales, tilt a telephone
receiver away from his ear so that a police officer could listen in to the
conversation. In a brief discussion, we reasoned that merely listening in
to a conversation did not involve an 'interception' by a 'device.'
Corliss, 123 Wn.2d at 662. The facts of Corliss are markedly different
from the facts of this case. In Corliss, the police officer merely heard a
conversation in the same manner as the police informant who was a party to
the conversation. In contrast, Mrs. Dixon heard a conversation from an
intermediate location between Christensen's telephone extension and Lacey's
mobile handset, and without the knowledge of either party.
Corliss is unhelpful because it involves a situation in which one of the
parties to the private conversation consented, and it did not involve an
'interception' by a surreptitious third party to the call. The police
officer in that case was a party to the call. Mrs. Dixon was not a party
to the conversation between Lacey and Christensen.
Bonilla is also of limited guidance because it did not directly address
the definition of the term 'device' under the act. The issue before the
Bonilla court was whether an interception had occurred. The defendant in
Bonilla called a police dispatcher several times and confessed to murdering
his wife. The dispatcher summoned another officer to listen in on the
calls. The Bonilla court correctly held that the defendant had no
reasonable expectation of privacy under such circumstances. The court
reasoned that there was no illegal 'interception' and that the defendant's
conversation was not a 'private communication.' Without supporting
authority or analysis, the court's opinion contained two conclusory
sentences implying that an extension telephone is not a device within the
meaning of the privacy act. Bonilla, 23 Wn. App. at 873. Yet, the
meaning of the word 'device' was neither briefed nor argued by the parties
in Bonilla. The Bonilla court's gratuitous statements about the meaning of
the term 'device' under the statute was, therefore, mere dicta.
Had the State argued and proved that Mrs. Dixon's act of listening in to
her daughter's conversation with Christensen was not an intercept, the
resolution of this case might well have proceeded down a different
analytical path.2
The Bonilla court also implied that a separate device from the one used in
the communication is required by the statute. We recently rejected this
requirement, holding that 'it makes no difference that the {violation} was
accomplished on a device that was used in the communication.' Townsend,
147 Wn.2d at 674. The State attempts to distinguish Townsend by suggesting
that the separate device requirement applies only to devices designed to
record, and not devices designed to transmit. The act, however, makes no
such distinction.
We adhere to Faford. We must interpret the privacy act in a manner that
ensures that the private conversations of this state's residents are
protected in the face of an ever-changing technological landscape. This
must be done so as to ensure that new technologies cannot be used to defeat
the traditional expectation of privacy. For purposes of the privacy act,
the word 'transmit' means to disseminate or communicate. Here the base
unit of the cordless telephone both received and transmitted. The base
unit received inaudible sound waves, and transmission occurred when those
sound waves and their emissions were converted into audible sound. The
base unit further transmitted inaudible radio signals to the cordless
handset. The base unit of the cordless telephone was a device designed to
transmit within the meaning of Washington's privacy act.
While the statute itself is unambiguous, a survey of the legislative
history only serves to buttress this conclusion. Since 1909, the privacy
act has protected sealed messages, letters, and telegrams from being opened
or read by someone other than the intended recipient. RCW 9.73.010-.020.
In 1967, the legislature amended the act in order to keep pace with the
changing nature of electronic communications and in recognition of the fact
that there was no law that prevented eavesdropping. See House Journal,
40th Leg., 1st Ex. Sess., at 2030-31 (Wash. 1967). In doing so,
Washington's privacy statute became 'one of the most restrictive in the
nation.' Townsend, 147 Wn.2d at 672.3
The federal government and 49 states have enacted privacy or eavesdropping
statutes (all of which are at least as restrictive as the federal statute).4
Washington, however, is among only 11 states that require that all parties
to a private communication must consent to its disclosure.5 The so-called
'all-party consent' rule adds an additional layer of protection to the
private conversations of this state's residents.6 In balancing the
legitimate needs of law enforcement to obtain information in criminal
investigations against the privacy interests of individuals, the Washington
statute, unlike similar statutes in 38 other states, tips the balance in
favor of individual privacy at the expense of law enforcement's ability to
gather evidence without a warrant.7 Since 1967, the legislature has twice
made amendments to the act without amending the 'all-party consent'
provision.
In State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986), this court cited
the act as evidence to support our unanimous decision to use independent
state constitutional grounds to find that use of a pen register violated
the state constitution, even though it did not violate the Fourth
Amendment:
The State of Washington has a long history of extending strong protections
to telephonic and other electronic communications. For example {the privacy
act}, RCW 9.73.010, which makes it a misdemeanor for anyone to wrongfully
obtain knowledge of a telegraphic message, was enacted in 1909 and is based
on section 2342 of the Code of 1881. The 1881 Code, adopted before
statehood, extensively regulated telegraphic communications. See Code of
1881, sec.sec. 2342-62. Our present statute is broad, detailed and extends
considerably greater protections to our citizens in this regard than do
comparable federal statutes and rulings thereon . . . . The long history
and tradition of strict legislative protection of telephonic and other
electronic communications in this state lends strong support to our
decision to resort to independent state constitutional grounds in this
case.
Id. at 66 (citation and footnote omitted). This court, thus, gave
endorsement to Washington's long-standing tradition of affording great
protection to individual privacy. If any textual ambiguity about the
meaning of the statute lingers, it ought to be resolved in favor of giving
effect to the legislative intent of the statute. It is, of course, within
the province of the legislature to shift this statutory balance should it
decide the residents of this state require less privacy protection.
Prejudicial Error
The State maintains that even if there was error in admitting Mrs. Dixon's
testimony, the error was harmless. Christensen asserts that admitting the
testimony was prejudicial. 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. State v. Porter, 98 Wn. App. 631, 638, 990 P.2d 460
(1999).
The erroneous admission of Mrs. Dixon's testimony was prejudicial. Her
testimony was likely the most credible of those witnesses who testified
about Christensen's alleged involvement in the robbery. She listened to
the conversation between Lacey and Christensen soon after the incident and
made personal notes about the conversation. She referenced those notes on
the witness stand. It cannot reasonably be held that the admission of her
testimony did not materially affect the outcome of the trial.
CONCLUSION
The Washington privacy statute puts a high value on the privacy of
communications. In light of its strong wording, the act must be
interpreted to effectuate the legislative intent. Based on the subjective
intentions and reasonable expectations of Christensen and Lacey, their
conversation was a private one. Based on the plain meaning of the term
'transmit,' we hold that the speakerphone component of the base unit of a
cordless telephone is a device designed to transmit under the privacy act.
It was error to admit Mrs. Dixon's testimony regarding what she heard over
the speakerphone and that error was not harmless.
This matter is reversed and remanded for a new trial consistent with this
opinion.
WE CONCUR:
...
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