OFFICES AND OFFICERS ‑- CITY ‑- POLICE ‑- COUNTY ‑- SHERIFF ‑- LAW ENFORCEMENT ‑- COMMUNICATIONS ‑- RECORDING OF EMERGENCY PHONE CALLS TO A POLICE AGENCY
(1) Under the provisions of chapter 9.73 RCW, the "incoming phone calls" exception in RCW 9.73.090(1)(a) does permit a police agency to record those incoming calls which are not of an "emergency" nature.
(2) Assuming the foregoing, however, care must be taken in applying the "incoming phone calls" exception in RCW 9.73.090(1)(a) where the call is received by a police agent who has deliberately induced a criminal suspect, not yet arrested or formally charged, to make an incoming call to the police agency; there, wherever the spirit or the letter of the statute dictates taped mutual consent or judicial authorization prior to recording a telephone conversation with a criminal suspect, the "incoming calls" exception could well be held inapplicable even if single party consent is present.
(3) The several statutory exceptions to the Privacy Act set forth in RCW 9.73.030(2), RCW 9.73.090(1)(a), RCW 9.73.090(1)(b) and RCW 9.73.090(2) do not overlap each other in such a way as to render any such exception(s) totally duplicative of another and therefore unnecessary and superfluous.
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October 10, 1980
Honorable Russ Juckett
3000 Rockefeller Avenue
Everett, Washington 98201
ATTN: Stephen Henley
Deputy Prosecuting Attorney
Cite as: AGO 1980 No. 20
By letter previously acknowledged, you requested the opinion of this office on three questions which we paraphrase as follows:
[[Orig. Op. Page 2]]
(1) Under the provisions of chapter 9.73 RCW, does the "incoming phone calls" exception in RCW 9.73.090(1)(a) permit a police agency to record those incoming calls which are not of an "emergency" nature?
(2) Does the "incoming phone calls" exception in RCW 9.73.090(1)(a) allow recording by a police agent who has deliberately induced a criminal suspect, not yet arrested or formally charged, to make an incoming call to the police agency?
(3) Do any of the several exceptions to the Privacy Act set forth in RCW 9.73.030(2), RCW 9.73.090(1)(a), RCW 9.73.090(1)(b) and RCW 9.73.090(2) overlap each other in such a way as to render any such exception(s) totally duplicative of another and therefore unnecessary and superfluous?
We answer your first question in the affirmative, your second question as set forth in our analysis and your third question in the negative.
Both the federal and state statutes in this area, which we will discuss in detail below, restrict electronic interception of certain categories of private conversations. Both statutory schemes also provide as means of enforcement (1) civil relief for eavesdropping victims, (2) criminal sanctions against violators and (3) a statutory exclusionary rule. However, all of the Washington cases and most of the cases decided under the federal statute have involved only the respective exclusionary rules. Similarly, our analysis herein will be generally restricted to the exclusionary rule aspects of the statutes and not the direct civil or criminal sanctions for violations.
The pertinent portions of chapter 9.73 RCW must be viewed in light of certain partially preemptive federal statutes relating to "Wire Interceptions and Interception of Oral Communications" which are included in Title III of [[Orig. Op. Page 3]] the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520. Under the federal law a state may promulgate legislation authorizing certain state court judges to issue wiretap orders to be utilized in the enforcement of state criminal statutes, 18 U.S.C. § 2516(2). However, the federal act is not self-executing insofar as state law enforcement officials are concerned. Therefore, to obtain a valid wiretap warrant from a state court, there must be a state wiretap statute in effect, Halpin v. Superior Court of San Bernardino County, 6 Cal.3d 885, 101 Cal.Rptr. 375, 495 P.2d 1295 (1972), cert. den. sub. nom., California v. Halpin, 409 U.S. 982, 34 L.Ed.2d 246, 93 S.Ct. 318 (1972).
Also under the federal legislative scheme state statutes may contain standards more stringent than the requirements of federal law thus, inter alia, excluding from state courts evidence that would be admissible in federal court. But a state may not adopt standards that are less restrictive than those set forth in the federal law. Accord,Peoples v. Jones, 30 Cal.App.3d 852, 106 Cal.Rptr. 749 (1973) app. dism. sub. nom. California v. Jones, 414 U.S. 804, 38 L.Ed.2d 40, 94 S.Ct. 163 (1973). Any evidence obtained under a less restrictive state statute would be inadmissible in state court. See, 18 U.S.C. § 2515.
Your questions do not relate to the practice of "bugging" which involves a lack of consent by all parties to the conversation and for which both statutory schemes require a prior court order. Therefore, we will not discuss in detail the federal restriction1/ upon state legislation2/ in that area. Instead, your questions involve what is commonly known as single‑party consent "monitoring" of conversations.
For law enforcement the significant Title III monitoring exceptions are broad and general. They appear in 18 U.S.C. 2511(2)(c) and (d) as follows:
"(c) It shall not be unlawful under this chapter [18 USCS §§ 2510 et seq.] for a person acting under color of law to intercept a wire or oral communication, where [[Orig. Op. Page 4]] such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.
"(d) It shall not be unlawful under this chapter [18 USCS §§ 2510 et seq.] for a person not acting under color of law to intercept a wire or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State or for the purpose of committing any other injurious act."
Washington's statutory scheme, on the other hand, is a more restrictive and cautious approach to the authorization of both "bugging" and "monitoring." Throughout our analysis we will, nonetheless, keep the federal law and its monitoring exceptions in mind when discussing Washington's single‑party consent exceptions to interception. Except where specifically noted, however, the reader can assume that the current Washington statute is within the limits permitted by Title III, supra, and its exceptions.
Since your questions call for construction3/ of our state law (chapter 9.73 RCW) several basic principles of statutory construction will serve as our initial guide. First, the principle purpose in statutory construction is to determine [[Orig. Op. Page 5]] and give effect to legislative intent. Janovich v. Herron, 91 Wn.2d 767, 592 P.2d 1096 (1979). Second, the primary source for determining that intent is, of course, in the language of the statute. In Re Estate of Lyons, 83 Wn.2d 105, 515 P.2d 1293 (1973). And third, the original act in question and all amendments thereto should be read as one law passed at the same time, taking into account the sequential development of the statutory scheme. Amburn v. Daly, 81 Wn.2d 241, 501 P.2d 178 (1972). Thus, in light of these fundamental principles the task of answering your questions calls initially for a careful analysis of the current language of the relevent [relevant] portions of the Washington law as well as a review of the initial 1967 enactment, the 1970 amendments thereto, the court decision ofState v. Wanrow, 88 Wn.2d 221, 559 P.2d 548 (1977) and the significant 1977 amendments to the statute which were promulgated in response toWanrow within a few months after it was announced by the Court.
The basic purpose4/ of chapter 9.735/ is to protect private6/ electronic communications and other private conversations‑-electronic or otherwise‑-from interception7/ or [[Orig. Op. Page 6]] recording without mutual consent8/ of all participants. Thus, RCW 9.73.030(1)(a) and (b) provide as follows:
"(1) Except as otherwise provided in this chapter, it shall be unlawful for any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions to intercept, or record any:
"(a) Private 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;
"(b) Private conversation, by any device electronic or otherwise designed to record or transmit such conversation regardless how the device is powered or actuated without first obtaining the consent of all the persons engaged in the conversation."
[[Orig. Op. Page 7]]
To enforce this privacy protection, the statute then provides in RCW 9.73.050 for its own exclusionary rule for both civil and criminal proceedings.9/ In addition, it provides for both a civil damages remedy (RCW 9.73.060) and a criminal penalty (RCW 9.73.080) for unauthorized interception or recording of such a "communication or conversation."10/
There are also, however, several statutory exceptions to this scheme which allow for either interception or recording, or both, of certain categories of communications or conversations even where there is a lack of mutual consent of all of the participants. Your questions concern the meaning and interrelationship of certain of these exceptions which relate to law enforcement activities. We will next set forth, in their order of appearance, each of these exceptions.
Exigent Circumstances Calls and Conversations:
First to be noted is RCW 9.73.030(2) which provides as follows:
[[Orig. Op. Page 8]]
"(2) Notwithstanding the provisions of subsection (1) of this section, wire communications or conversations (a) of an emergency nature, such as the reporting of a fire, crime, or other disaster, or (b) which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands, or (c) which occur anonymously or repeatedly or at an extremely inconvenient hour, whether or not conversation ensues, may be recorded with the consent of one party to the conversation."
Continuing Extreme Danger Situations‑-Prosecutor-Obtained Ex Parte Judicial Wiretap Orders:
RCW 9.73.040 then provides in relevant part as follows:
"(1) An ex parte order for the interception of any communication or conversation listed in RCW 9.73.030 may be issued by any superior court judge in the state upon verified application of either the state attorney general or any county prosecuting attorney setting forth fully facts and circumstances upon which the application is based and stating 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.
". . ."11/
[[Orig. Op. Page 9]]
Incoming Calls to Police and Fire Stations:
Next, RCW 9.73.090(1)(a)12/ reads in part as follows:
"(1) The provisions of RCW 9.73.030 through 9.73.080 shall not apply to police and fire personnel in the following instances:
"(a) Recording incoming telephone calls to police and fire stations;"
This same statute, in RCW 9.73.090(1)(b), then further states that:
"(1) The provisions of RCW 9.73.030 through 9.73.080 shall not apply to police and fire personnel in the following instances:
"(a) . . .
"(b) Video and/or sound recordings may be made of arrested persons by police officers responsible for making arrests or holding persons in custody before their first appearance in court. Such video and/or sound recordings shall conform strictly to the following:
"(i) The arrested person shall be informed that such recording is being made and the statement so informing him shall be included in the recording;
[[Orig. Op. Page 10]]
"(ii) The recording shall commence with an indication of the time of the beginning thereof and terminate with an indication of the time thereof;
"(iii) At the commencement of the recording the arrested person shall be fully informed of his constitutional rights, and such statements informing him shall be included in the recording;
"(iv) The recordings shall only be used for valid police or court activities."
Continuing Felony Investigations‑-Police‑Obtained Ex Parte Judicial Authorization to Record With Single‑Party Consent:
Finally, RCW 9.73.090(2) provides in relevant part as follows:
"(2) It shall not be unlawful for a law enforcement officer acting in the performance of the officer's official duties to intercept, record, or disclose an oral communication or conversation where the officer is a party to the communication or conversation or one of the parties to the communication or conversation has given prior consent to the interception, recording, or disclosure: PROVIDED, That prior to the interception, transmission, or recording the officer shall obtain written or telephonic authorization from a judge or magistrate, who shall approve the interception, recording, or disclosure of communications or conversations with a nonconsenting party for a reasonable and specified period of time, if there is probable cause to believe that the nonconsenting party has committed, is engaged in, or is about to commit a felony: PROVIDED HOWEVER, That if such authorization is given by telephone the authorization and officer's statement justifying such authorization must be electronically recorded by the judge or magistrate on a recording device in the custody of the [[Orig. Op. Page 11]] judge or magistrate at the time transmitted and the recording shall be retained in the court records and reduced to writing as soon as possible thereafter.
". . ."13/
Historical Development of Chapter 9.73:
We next turn to the sequential, historical development of those law enforcement exceptions in chapter 9.73 RCW which are pertinent to your inquiries.
(a)The 1967 Enactment:
The basic privacy protection of RCW 9.73.030(1), supra, was first enacted by § 1, chapter 93, Laws of 1967 which read in relevant part as follows:
"Except as otherwise provided in this chapter, it shall be unlawful for any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions to intercept, record or divulge any:
"(1) Private 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;
"(2) Private conversation, by any device electronic or otherwise designed to record or transmit such conversation regardless how the device is powered or actuated without first obtaining the consent of all the persons engaged in the conversation.
". . ."
[[Orig. Op. Page 12]]
The only exception under this 1967 act was that provided in RCW 9.73.040 which we labelled above as "Continuing Extreme Danger Situations‑-Prosecutor-Obtained Ex Parte Judicial Wiretap Orders." See, § 2 of chapter 93,supra. It presently reads in all relevant respects as currently codified in RCW 9.73.040, set forthsupra at page 8. As earlier noted, however, your inquiry does not call for interpretation of this initial exception.
(b)The 1970 Amendments:
Two new categorical exceptions to the privacy rule of chapter 9.73 RCW were added by § 1, chapter 48, Laws of 1970, 1st Ex. Sess. First, subsection (2) of that section read as follows:
"(2) Video and/or sound recordings may be made of arrested persons by police officers responsible for making arrests or holding persons in custody before their first appearance in court. Such video and/or sound recordings shall conform strictly to the following:
"(a) the arrested person shall be informed that such recording is being made and the statement so informing him shall be included in the recording,
"(b) the recording shall commence with an indication of the time of the beginning thereof and terminate with an indication of the time thereof,
"(c) at the commencement of the recording the arrested person shall be fully informed of his constitutional rights, and such statements informing him shall be included in the recording,
"(d) the recordings shall only be used for valid police or court activities."
This exception was first codified as RCW 9.73.090(2), was then recodified in unamended form as RCW 9.73.090(1)(b) under 1977 amendments (§ 3, chapter 363, Laws of 1977, 1st Ex. Sess.) and currently stands as the exception we have set forth and labelled "Arrestee Interrogations," supra, at page 9.
[[Orig. Op. Page 13]]
The other categorical exception added by the 1970 enactment was contained in subsection (1) of § 1, chapter 48, supra, and read as follows:
"The provisions of RCW 9.73.030 through 9.73.080 shall not apply to police and fire personnel in the following instances:
"(1) Recording incoming telephone calls to police and fire stationsfor the purpose and only for the purpose of verifying the accuracy of reception of emergency calls.
". . ." (Emphasis supplied)
It was this 1970 amendment which was involved in the celebrated case ofState v. Wanrow,supra. In the first installment of that case, both Division III, Court of Appeals and then our State Supreme Court rendered similar limiting interpretations of the underscored language of the provision. See, 14 Wn.App. 115, 538 P.2d 849 (1975) and 88 Wn.2d 221, 559 P.2d 548 (1977). Factually, Ms. Wanrow had shot and killed a man in purported defense of herself, her adult female friend and the friend's juvenile daughter. Thereupon, the friend called the police on an emergency "crime check" number‑-which the police made available for citizens to alert them as to observed crimes‑-and told police about the incident. Ms. Wanrow then got on the line and gave her own account of the incident in which she admitted her participation in the shooting. The conversations were recorded without the knowledge or consent of the callers.
At the ensuing trial, the recording was admitted over Defendant Wanrow's objections and she was convicted. But, on her subsequent appeal to Division III and again on the prosecutor's appeal to our State Supreme Court, she won a reversal. There (i.e., in the Supreme Court), writing for a five‑judge majority, Justice Utter focused on the above underscored limiting language of RCW 9.73.090(1) and opined on that basis that the only use to which such emergency recordings could be put was to "verify accuracy" of such elements of the conversation as street numbers, names of complainants, etc. Therefore, the recording could not be used as evidence.14/
[[Orig. Op. Page 14]]
(c)The 1977 Amendatory Act:
Thereafter, the 1977 legislature responded directly and immediately to this interpretation of the statute.15/ We will here set forth this set of amendments in bill drafting form for ease of understanding‑-as contained in chapter 363, Laws of 1977, 1st Ex. Sess. in relevant part as follows:
". . .
"(2) Notwithstanding the provisions of subsection (1) of this section, wire communications or conversations (a) of an emergency nature, such as the reporting of a fire, crime, or other disaster, or (b) which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands, or (c) which occur anonymously or repeatedly or at an extremely inconvenient hour, whether or not conversation ensues, may be recorded with the consent of one party to the conversation.16/
". . .
"Sec. 3. Section 1, chapter 48, Laws of 1970 ex. sess. and RCW 9.73.090 are each amended to read as follows:
[[Orig. Op. Page 15]]
"(1) The provisions of RCW 9.73.030 through 9.73.080 shall not apply to police and fire personnel in the following instances:
(((1)))(a) Recording incoming telephone calls to police and fire stations (( for the purpose and only for the purpose of verifying the accuracy of reception of emergency calls));"17/
In addition, a further exception added onto the statute by the 1977 legislature is the exception which we have above labelled "Continuing Felony Investigations‑-Police‑Obtained Ex Parte Judicial Authorization to Record with Single‑Party Consent," supra, at p. 10. RCW 9.73.090(2), as added by § 3, chapter 363, Laws of 1977, 1st Ex. Sess., authorizes, upon judicial authorization to a police officer conducting a felony investigation, the interception, recording and disclosure of private wire or other communications or conversations involving the suspect and a consenting party.
With all of the foregoing statutory provisions and sequential development thereof in mind, we now turn to your questions.
Repeated for ease of reference, this question asks:
Under the provisions of chapter 9.73 RCW, does the "incoming phone calls" exception in RCW 9.73.090(1)(a) permit a police agency to record those incoming calls which are not of an "emergency" nature?
[[Orig. Op. Page 16]]
We answer in the affirmative. Specifically, it is our opinion that in contrast to the predecessor statute upon whichState v. Wanrow, supra, was based‑-and except as qualified in our response to question (2) below‑-the current version of RCW 9.73.090(1)(a) places no limitation upon the type of incoming call to a police or fire station which may be recorded and does not in any way limit its use, including its ultimate admission as evidence against a caller. Clearly, the above‑outlined statutory history shows that the 1970 language which limited the use of such recordings to the "purpose of verifying the accuracy of information" (seeWanrow, supra) was intentionally excised from the statute in 1977.
However, while we indicated at the outset that our generally more restrictive state statute satisfies federal (Title III) standards, we must note here that at least single‑party consent appears to be minimally required in order for a law enforcement recording under RCW 9.73.090(1)(a), as thus amended, to withstand scrutiny. Thus, inUnited States v. Harpel, 493 F.2d 346 (10th Cir. 1974) the Court found a criminal violation of the federal law where a police officer used an extension phone and a tape machine to make an unconsenting tape recording of a call between a fellow officer and a federal drug investigator. This would apparently mean that even if a call is incoming to a police station, the interception and recording of that call without at least one participant's consent would violate federal law.
Practically speaking, for Washington law enforcement agencies what this means is that a single‑party consent requirement must be read into RCW 9.73.090(1)(a),supra, and that agencies should inform all employees and other recipients on incoming, recorded lines that recordings are being made and that no non-consent recordings shall occur.
With these qualifications in mind, however, we believe that the mere passive practice of making a recording of all non-induced calls and non-elicited statements18/ which come into the stationhouse phones is permissible under the state statute and that these recordings can be used in any subsequent criminal or civil trial, so long as there is single‑party consent to the recording pursuant to federal statute.
[[Orig. Op. Page 17]]
Your second question assumes the foregoing affirmative answer to question (1) and asks generally about the situation where a police officer deliberately "induces" or "elicits" from an as yet unarrested, uncharged19/ criminal suspect a call to the stationhouse‑-so that police can capture the suspect's voice or statements on tape.
This question leaves open a fairly wide range of variation in factual situations where "deliberateness," "inducement," or "elicitation"20/ by the police might be an issue. We will not here attempt to hypothesize all possible factual variations. Rather we will pose a single hypothetical case which we believe illustrates that the spirit of chapter 9.73 RCW may require prior judicial authorization or mutual consent for recording of certain types of incoming calls in circumstances raising the "deliberate inducement" issue.
One clear example of "deliberate inducement" would be where a police agency would arrange for an "undercover" phone at the stationhouse for such activities as narcotics, gambling or stolen property investigations. Undercover investigators might receive calls at such phones as if the phones were those in a private residence or business. Technically, these would [[Orig. Op. Page 18]] be "incoming telephone calls to (a) police . . . station . . ." and would therefore qualify the for above‑noted exception, reading RCW 9.73.090(1)(a), supra, on its face. However, such recordings might instead fall squarely within the more restrictively covered category of calls excepted only under that which we have labelled as the "Continuing Felony Investigations‑-Police‑Obtained Ex Parte Judicial Authorization to Record with Single‑Party Consent" exception set forth in RCW 9.73.090(2),supra, at page 10. We believe the spirit of the legislation would dictate, as a prerequisite to recording of such a phone conversation, either (1) prior authorization per the terms of that statutory subsection or (2) taped announcement of mutual consent under RCW 9.73.030(3),supra.21/
[[Orig. Op. Page 19]]
We do not suggest that every tape of a "deliberately induced" incoming phone call is proscribed by the statute, however. For instance because of the special purpose of the "Exigent Circumstances" exception of RCW 9.73.030(2),supra, we believe that the legislative spirit favors the admissibility of recordings of all calls covered by that subsection even if deliberately induced (cf.,State v. Forrester, supra). The basic problem area, rather, appears to be the interrelationship of the authorization of RCW 9.73.090(1)(a) and the restrictions contained in RCW 9.73.090(2) as illustrated by the immediately preceding hypothetical.
In conclusion, nonetheless‑-without attempting to posit the several hypothetical variations possible‑-we would respond to your second question with the following general rule: That wherever the spirit or letter of the statute dictates taped mutual consent (RCW 9.73.030(3)) or judicial authorization (RCW 9.73.090(2)) prior to recording a telephone conversation with a criminal suspect, the "incoming calls" exception could well be held inapplicable even if single‑party consent is present.
Your third question, repeated here for ease of reference, asks:
Do any of the several exceptions to the Privacy Act set forth in RCW 9.73.030(2), RCW 9.73.090(1)(a), RCW 9.73.090(1)(b) and RCW 9.73.090(2) overlap each other in such a way as to render any such exception(s) totally duplicative of another and therefore unnecessary and superfluous?
In analyzing this question, we take note of another fundamental rule of statutory construction which is pertinent here. It tells us that effect must be given, if possible, to every word, clause and sentence of a statute so that no part will be inoperative or superfluous, void or insignificant. Snow's Mobile Homes, Inc. v. Morgan, 80 Wn.2d 283, 494 P.2d 216 (1972). This basic tenet of statutory construction creates a negative presumption against duplicativeness of the various exceptions to chapter 9.73 RCW.
In addition, we believe that the clear meaning of the statutory language involved supports the non-duplication presumption here. We will demonstrate this by way of descriptions [[Orig. Op. Page 20]] of general, categorical fact patterns which fall exclusively within only one of the several single‑party consent exceptions‑-looking, initially, to the three separate exceptions in RCW 9.73.030(2),supra, at page 9.
First, assume that a volunteer fireman or a policeman‑-or any other individual‑-receives a call at his home or is contacted in person at his doorstep or on a street corner and, accordingly, may not record the call or report under the incoming-calls-to-the‑stationhouse exception in RCW 9.73.090(1)(a). He may nonetheless record the conversation under RCW 9.73.030(2) if it is "of an emergency nature, such as the reporting of a fire, crime or other disaster, . . ."
Similarly, if someone receives a wire communication or engages in a conversation, by phone or otherwise, which conveys "threats of extortion, blackmail, bodily harm or other unlawful requests or demands . . ." he may record that conversation even though he is not talking on a police or fire stationhouse incoming phone line at the time. Only RCW 9.73.030(2)(b),supra, authorizes an extrajudicial single‑party consent recording of such a threat-conveying phone call or other such conversation where received as other than an incoming phone call to a police or fire stationhouse.
Similar analysis applies equally to the single‑party consent recording of wire communications or other private conversations which occur "anonymously or repeatedly or at an extremely inconvenient hour . . ." Although not received as incoming phone calls to a stationhouse phone, such calls or conversations may be recorded but only because this recording is authorized by special exception in RCW 9.73.030(2)(c).
The foregoing thus illustrates that the "incoming phone calls" exception of RCW 9.73.090(1)(a) does not render superfluous the exceptions in RCW 9.73.030(2). Conversely, for incoming phone calls not covered by the overlapping "Exigent Circumstances Calls and Conversations" exceptions of RCW 9.73.030(2)(a), (b) and (c), the only basis for arguing the lawfulness of the recording will be RCW 9.73.090(1)(a). Thus, for instance, a non-emergency phone call to a police department could be recorded only because RCW 9.73.090(1)(a) allows it.
Next, as previously noted, RCW 9.73.090(1)(b) is intended to cover the special set of circumstances where a person, under interrogation, has already been arrested or is being held in custody. In that case the heightened statutory protections of that provision including, in effect, mutual consent to the recordings and more, will apply even though it might be argued [[Orig. Op. Page 21]] that one of the other exceptions would otherwise appear to authorize a less restrictive recording process.22/
Finally, RCW 9.73.090(2), supra, at page 10, covers the special categorical situation in which police, in the course of a felony investigation, have reason to record their own or an informer's wire communication or other conversation with a non-consenting suspect of their investigation. In such a situation, the police must comply with the judicial authorization and other requirements of RCW 9.73.090(2), even though it might appear superficially that one or more of the other exceptions might justify a deliberate attempt to circumvent the rigorous requirements of RCW 9.73.090(2).
It is clear, then, that each of the several single‑party consent exceptions in chapter 9.73 RCW, while overlapping each other in certain respects, covers distinct and separate territories, the non-overlapping portions of which are relatively well-defined. It is our opinion therefore that none of the statutory exceptions is unnecessary or duplicative of the other but that each serves a distinct legislative purpose.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
JOHN R. WASBERG
Assistant Attorney General
*** FOOTNOTES ***
1/18 U.S.C. § 2516(2).
2/See RCW 9.73.040.
3/There would appear to be no constitutional issue raised by your questions. While "private" telephone calls are protected by the Fourth Amendment of the United States Constitution (seeKatz v. United States, 389 U.S. 347 (1967)), there is little doubt the Washington statutory scheme, set forth and described in detail below, is valid. Even as modified by the 1977 amendments reducing the barriers to law enforcement interception and recording, it seems well within Fourth Amendment limitations which allow for single‑party consent interception and recording. SeeU.S. v. White, 401 U.S. 745, 28 L.Ed.2d 453, 91 S.Ct. 1122 (1971). See alsoCasenote "Admissibility of Recorded Conversation," 11 Gonzaga Law Review, 792, 793, fn. 6 (1976).
4/See State v. Wanrow, 88 Wn.2d 221, 233, 559 P.2d 548 (1977);cf.,State v. Kichinko, 26 Wn.App. 304 (Div. I, 1980).
5/The modern electronic-era protections of RCW 9.73.030-9.73.140 here under scrutiny were grafted onto a law which was conceived in simpler times (1909) and which originally protected only against "Divulging telegram(s)," RCW 9.73.010, and "Opening sealed letter(s)." See RCW 9.73.020.
6/Because state interception authorization must be at least as restrictive as the federal law, the term "private," undefined by chapter 9.73 RCW, must generally include at least the ambit of the federally-undefined concept of "expectation of privacy" found to be the minimal protective reach of the federal law by courts interpreting 18 U.S.C. § 2510, et seq. Chapter 9.73 RCW's term "private" has, however, received a broad interpretation from our appellate courts. See,State v. Wanrow, supra, 88 Wn.2d at 233, and see State v. Grant, 9 Wn.App. 260, 511 P.2d 1013 (Div. I, 1973). And seeState v. Bonilla, 23 Wn.App. 869 (Div. II, 1979) andState v. Forrester, 21 Wn.App. 855 (Div. III, 1979).
7/Again, because of the preemptory federal interception law, the protective ambit of the term "interception," undefined by chapter 9.73 RCW, must generally extend to at least the elements of the federal definition; i.e., "the aural acquisition of the contents of any wire or oral communication through the use of electronic, mechanical, or other device." 18 U.S.C. § 2510(4).
8/The term "consent," which is undefined under the federal law, is partially defined by RCW 9.73.030(3) as follows:
"(3) Where consent by all parties is needed pursuant to this chapter, consent shall be considered obtained whenever one party has announced to all other parties engaged in the communication or conversation, in any reasonably effective manner, that such communication or conversation is about to be recorded or transmitted: PROVIDED, That if the conversation is to be recorded that said announcement shall also be recorded."
Note that exclusively with respect to the exception we have labelled "Arrestee Interrogation,"infra, at page 9, even where mutual consent has been obtained via this statutorily prescribed announcement or by some other means, the additional taping prerequisites of RCW 9.73.090(2) must be met. See,State v. Cunningham, 93 Wn.2d 823 (1980). In all other taping situations, however, such mutual consent will apparently place the recording outside the law's prohibitions. See, fn. 21,infra, at page 18.
9/There are ten published Washington appellate court opinions interpreting the post-1967 provisions of chapter 9.73 RCW, all of which have dealt with the question of admissibility of recorded statements of either a suspect or a law enforcement officer in a criminal trial.
There is no reference to the preemptive federal legislation in any of those ten published Washington appellate decisions to date. Because of the fact patterns involved in those cases, and also because the Washington scheme is generally more restrictive than the federal scheme, this possible oversight has most probably not been prejudicial to either the state or the defendant.
Litigation involving the federal statutes has been more intense than under our state statute. In its twelve years of existence, chapter 119 of Title 18 U.S.C. has generated enough cases to fill over 150 pages of annotations.
10/The phrase "communication or conversation" is used throughout chapter 9.73 RCW apparently as a shorthand reference to the more detailed description of RCW 9.73.030(1)(a) and (b) set forth, supra, at page 6.
11/This exception is not addressed by your inquiry. It is the only state statutory exception authorizing "bugging" (as opposed to "monitoring") without at least a single‑party consent to the interception or recording. Numerous qualifying restrictions on the application for and procedures to be followed under this exception are set forth at RCW 9.73.040(2) ‑ (7). Unlike the other exceptions in the state statute, even the authorized interceptions allowed by this exception cannot generally be used in subsequent criminal prosecutions. The only exception providing for admissibility of the product of these authorized wiretaps is where the crime involved is one which jeopardizes national security.
12/The exception cited in your first two questions.
13/Detailed and complex restrictions regarding this final exception to the basic privacy protection of the statute are found in RCW 9.73.120-9.73.140. For a recent interpretation of certain aspects of this particular exception, seeState v. Kichinko, 26 Wn.App. 304 (Div. I, 1980)
14/In so ruling, the majority found some support for its interpretation in reported floor discussion of the narrowness of the then proposed qualified exception when the 1970 amendatory bill was originally before the legislature. Senate Journal, 41st Legislature (1970), at p. 205. SeeState v. Wanrow,supra, at pp. 232, 233. The dissent's position in part, on the other hand, was that the limitation of the statute was to control only what the police and fire agencies might attempt to record‑-not what was done with recordings after they were lawfully on tape.
15/See discussion in State v. Bonilla,supra, 23 Wn.App. at 874 and State v. Forrester, supra, 21 Wn.App. at 862, taking note of causal connection between theWanrow decision announcement and 1977 amendments to chapter 9.73 RCW.
16/This exception for "Exigent Circumstances Calls and Conversations," codified now as RCW 9.73.030(2), is set forth in current form supra at page 8.
17/This exception is the one we have labelled "Incoming Calls to Police and Fire Stations" set forth supra in current form at page 9.
18/See discussion of this inducement or elicitation issue in our response to question (2), infra.
19/After being arrested or charged, a suspect under interrogation would clearly be covered by the special taped warnings requirements of RCW 9.73.090(1)(b). State v. Cunningham, 93 Wn.2d 823 (1980).
20/As was noted previously, this statute's protections are an expansion of privacy protections beyond those provided by the Fourth Amendment. While neither the Fifth Amendment right against self-incrimination nor the Sixth Amendment right to counsel at all critical stages in criminal proceedings is involved at this pre‑arrest stage, perhaps some of the cases involving questions of deliberateness of police conduct in inducing or eliciting statements in violation of the rights established under these respective constitutional amendments may be helpful in determining whether there has been a deliberate inducement violative of the spirit of chapter 9.73 RCW. See,e.g., Massiah v. United States, 377 U.S. 201, 12 L.Ed.2d 246, 84 S.Ct. 1199 (1964);Brewer v. Williams, 430 U.S. 387, 51 L.Ed.2d 424, 97 S.Ct. 1232 (1977);Rhode Island v. Innis, 48 Law Week 4506 (1980).
21/Last July, in State v. Cunningham, 93 Wn.2d 823, ___P.2d___(1980) (see footnotes 8, 19) our Supreme Court ruled that for "Arrestee Interrogations," RCW 9.73.090(1)(b), even taped mutual consent (RCW 9.73.030(3)) will not qualify a tape for admission if the former subsection's additionally required taped warnings have not been administered. The Court declared in this respect:
"The foregoing statutory provisions, when adhered to strictly, will establish within the recording itself that a defendant's consent was given only after being informed the statement would be recorded; that the consent and resultant statement were given only after being fully informed of one's constitutional rights, including the exact information imparted; and that the statement was not obtained by means of oppressively long interrogation or interrogation that occurred at unreasonable times or in unreasonable sequences. In short, while RCW 9.73.030 authorizes the use of a recorded statement obtained after the prior consent of all persons engaged therein, RCW 9.73.090(2) controls the nature and means of obtaining that consent. The two statutory provisions are interrelated parts of a single statutory scheme." 93 Wn.2d at 829, 830.
The Court's exclusion of a mutual consent recording in Cunningham is, we believe, narrowly restricted to the "Arrestee Interrogation" context. In any other context mutual consent obtained in the manner partially described in RCW 9.73.090(3), will make the tape admissible in evidence irrespective of the apparent applicability or non-applicability of any other statutory exception.
22/See State v. Cunningham discussed supra at footnote 21.