Appeal from Superior Court, (921004719, 921004557, 928021406, 921004867, 921004794, 92100449-2 & 921004891), King County; Hon. William Downing, Judge, 62440-2, 62443-7, Hon. Anthony Wartnik, Judge, 62442-9, 62643-0. Judgment Date: 9-14-92 (Pougue), 7-6-92 (D.J.W.), 9-25-92, (Saleem), 10-26-92 (Hardy, Johnson), 3-25-93 (Jenkins).
Talmadge, J., Durham, C.j., Dolliver, Smith, Guy, J.j., Alexander, J., (concurring in part/dissenting in part), Madsen, Johnson, J.j., Pekelis, J.p.t., Sanders, J., (did not participate).
TALMADGE, J. -- Often in a bazaar-like setting on the street, the defendants responded to a police informant's request for rock cocaine by approaching or entering the informant's car, and selling or delivering rock cocaine to the informant. A camera recorded them in the act. They contend the audio recordings*fn1 were inadmissible because their conversations with the informant were private under the Privacy Act, RCW 9.73.030, and the authorization to record under RCW 9.73.090(5) was not based on probable cause because the authorities had no particular suspect in mind other than street traffickers dealing drugs. In sixteen cases, the trial courts admitted the recordings of the conversations into evidence. The Court of Appeals held that conversations of "vendors . . . selling their wares on a public street to anyone" are generally not protected by the Privacy Act, and ruled that the orders authorizing the recordings satisfied a statutory standard of probable cause under RCW 9.73.090(5). It affirmed the defendants' convictions
for delivery of controlled substances. State v. D.J.W., 76 Wash. App. 135, 882 P.2d 1199 (1994).
We find the conversations here were not private because they were routine sales conversations on public streets between the defendants and a stranger who happened to be an undercover police informant. Twelve of the sixteen conversations also took place in front of a third party, or while the defendant was standing in the public thoroughfare within sight and hearing of any passerby. Because the conversations were not private, RCW 9.73 does not apply and the defendants' convictions are affirmed.
1. Does a surreptitious recording of a conversation between two or more persons, with the consent of one party, violate the Fourth Amendment or Article I, Section 7 of the Washington Constitution?
2. For purposes of RCW 9.73, is a conversation "private" where it is brief, takes place between strangers on a public street, sometimes in front of third persons, and concerns the terms of a routine illegal drug transaction?
The Seattle Police Department (SPD) and the Federal Bureau of Investigation (FBI) hired Kevin Glass as an informant. At the time of the trials, Glass was twenty-six years old and had some eighteen years' experience in armed crime, gang culture, and street-level dealing in illegal drugs.*fn2 After serving time in adult prison, Clark secretly began to work for law enforcement in San Diego, California, while outwardly posing as a loyal "Crips" gang member. He
provided information to the police concerning numerous serious crimes, including drug and weapons transactions. Glass then went to Riverside, California, to pose as a typical street-level cocaine buyer in a car with a hidden camera. He made forty-five purchases in Riverside; the authorities convicted all thirty-three suspects they located.
In late 1991, the FBI asked Glass to perform a similar operation, termed "Operation Hardfall," in Seattle. The SPD and FBI jointly undertook Operation Hardfall to address drug trafficking in high crime areas of Seattle. Commander William Bryant, head of the SPD Narcotics Section, applied to the King County Superior Court for authorization pursuant to RCW 9.73.090(5) to record conversations between Glass and prospective drug dealers. He averred in the application for recording authorization that there was probable cause to believe that street traffickers dealing drugs in high drug trafficking areas would have conversations evidencing violations of the Uniform Controlled Substances Act, RCW 69.50. The determination of high drug trafficking areas was based upon community complaints; the areas encompassed a large portion of the City of Seattle.*fn3 Bryant stated that the typical drug conversation between a street seller and buyer would be very short and would concern quantity, quality and selling price of the drugs. He noted a seller usually could detect a police officer or informant, and the Riverside operation apparently succeeded due to Glass' expertise in posing as a typical customer. He stated that the recording was needed to help identify suspects, corroborate the testimony of the cooperating witness, and disprove any alleged
entrapment. The application sought the authorization for a two-week period, and disclosed that several renewals were contemplated, after which officers would try to arrest all suspects.
The trial court granted the application, finding (a) probable cause that street traffickers were dealing drugs in high drug trafficking areas of Seattle and unincorporated King County in violation of RCW 69.50; (b) probable cause that communications or conversations relating to such offenses would take place and would be evidence of the crimes; (c) Glass consented to the recording; and (d) normal investigative techniques would be unlikely to succeed if tried. The trial court authorized recording for a two-week period and subsequently extended the authorization for additional two-week periods through March 1992.
In practice, detectives chose a specific location for Glass to visit each day within the court-defined areas. Detectives would search Glass, give him money, and tell him where to go. A camera in Glass' car recorded those who approached the front passenger window or sat in the front passenger seat. The detectives stayed in another car as near as possible, trying to avoid being spotted. On the street, Glass typically honked his horn or called out, "What's up? You soupin'?" This expression meant, "Are you selling rock cocaine?" He testified that typically:
I would make contact, ask them are they soupin' [i.e.] are they sellin' rock cocaine. And then they would return, and tell me what do I want, and then I would tell them what I wanted, $40 worth, $20 worth, they would give it to me, I'd hand them the money.
Clark Report of Proceedings at 315.*fn4 An FBI agent corroborated the brevity of the typical street-level illegal drug sale encounter: "One person makes it clear that they want to buy. The other person makes it clear they have
the product. Quick exchange between money and narcotics, and then both just disperse there."*fn5
When Glass honked or called out to a group, often several individuals would step forward to compete for the first chance to sell drugs to Glass.*fn6 Glass even had to develop a special system for tracking rocks of cocaine he bought from multiple sellers. Sometimes he had to instruct the vendors to stand in line.*fn7
After each purchase, Glass called the police and described the seller. Detectives then drove through the neighborhood to identify the suspect. Upon returning to the safe house, the police retrieved the bagged, marked cocaine, and searched and debriefed Glass.
The brief conversations that each defendant had with Glass concerned a routine illegal drug transaction. Each conversation was initiated while the defendant stood on a
public street, sidewalk or in a parking lot. Glass did not know any of the persons who approached or entered his car. The conversations often occurred in front of other people.
For example, Glass spoke with defendant Clark in front of several other persons. Glass drove up to four men standing in the parking lot of an L-shaped apartment building with open walkways overlooking the lot. Glass said, "What's up, you soupin', man?" Three men approached; Clark arrived first and got in the passenger seat. The other two men stood by, leaning forward at the window. Glass asked for a "double"; Clark showed him cocaine, and said, "I'll give you all that for what you got right now." Glass said, "No." Clark said, "This is like, $160." Glass said, "No." One of the other men said, "A blue van," indicating a law enforcement vehicle. Clark and the others looked behind Glass' car briefly. After a moment, Glass and Clark made an exchange, and Clark got out of the car. In front of the others, Clark turned around and yelled back to Glass, "Hey, come back, all night." This conversation lasted one minute. Clark Ex. 3.*fn8
Another typical conversation of this sort where others were present was the two-minute talk Glass had with defendant A.G.E. Glass drove by four persons including A.G.E. and said to the group, "You soupin'?" One person got in the car. Glass yelled to the others, "Y'all got some?" One of them said, "Scooter got some." The one in the car gave Glass something. Glass complained that it was too small, and yelled to the others. The one in the car got out and A.G.E. got in. Glass asked for a "forty." A.G.E. looked around, got something out and handed it to Glass in exchange for the money. A.G.E. said, "I really needed that. Now I can go home." After further small talk A.G.E. said he was "Scooter," and asked Glass to "Come back through." Glass said, "I will." A.G.E. Ex. 4.
Glass' conversation with T.L.C. was typical of four conversations in which a defendant entered the car alone with Glass. The brief conversations completed negotiations which started on the street. Glass asked one seller if anyone else in a group of persons had drugs. The seller got out of the car, went over to T.L.C., and asked him if he had any "soup." T.L.C. then approached Glass' car. Glass asked if he was "souping," and he said "Yeah," and got in. While Glass circled the block, they made an exchange and spoke about the quantity, T.L.C.'s supplier, and the price of cocaine. They made arrangements for T.L.C. to call Glass the next day to make another sale. The conversation took ninety seconds. T.L.C. Ex. 4.
All sixteen conversations were essentially like the ones described above -- brief conversations on the street between Glass and a stranger about the terms of the routine illegal drug transaction.
The active phase of Operation Hardfall took place from January 21 to March 27, 1992. Arrests started on April 13, 1992. Ultimately Glass made 139 purchases, which resulted in ninety-six cases filed in superior court. The sixteen defendants here were each charged with delivery of controlled substances, and each lost a motion in the trial court to suppress the secret recordings. The Commissioner of the Court of Appeals, Division One, consolidated ten cases which involved only the admissibility of the recordings under State v. D.J.W., No. 31088-7. The Commissioner administratively linked six other cases (involving admissibility and other issues) to State v. D.J.W. In the consolidated cases, the Court of Appeals affirmed the admissibility of the recordings, and the convictions. State v. D.J.W., 76 Wash. App. 135, 141, 882 P.2d 1199 (1994). In the linked cases, the Court of Appeals also affirmed the admissibility of the recordings, by separate opinions, citing the decision in State v. D.J.W. as dispositive. E.g., State v. Clark, 76 Wash. App. 150, 883 P.2d 333 (1994). This court
consolidated all of the Operation Hardfall cases under State v. Clark, No. 62438-1.
A. Constitutional Privacy ...