Appeal from Superior Court of Skagit County. Docket No: 94-1-00407-6. Date filed: 03/02/95. Judge signing: Hon. Michael E. Rickert.
Authored by Ann L. Ellington. Concurring: Walter E. Webster, Ronald E. Cox.
The opinion of the court was delivered by: Ellington
ELLINGTON, J. -- Braulio Pacheco-Diaz appeals his conviction for one count of delivery of a controlled substance, arguing that the trial court erred when it denied his motion to suppress evidence the police gathered when they recorded his conversation with an undercover officer. Because the form authorizing the recording reflected the basis of the confidential informant's knowledge, the officers established they had probable cause to believe the conversation would involve unlawful drug trafficking, as required by RCW 9.73.230 of Washington's Privacy Act. The form also adequately identified the consenting party. The trial court correctly refused to suppress, and we affirm.
On June 2, 1993, a confidential informant arranged for Detective Paul Arroyos of the Skagit County Police Department to purchase an ounce of cocaine from the defendant, Braulio Pacheco-Diaz. In accordance with RCW 9.73.230, which allows recording of certain private conversations regarding illegal drug trafficking, a superior officer authorized Detective Arroyos and four other officers to "intercept, transmit, and/or record" a conversation between Arroyos and Pacheco-Diaz, during which Arroyos expected to purchase cocaine from Pacheco-Diaz. The meeting was to take place at a McDonalds Restaurant in Burlington later in the day.
The meeting took place as planned, the conversation was recorded, and Pacheco-Diaz was charged with one count of delivery of a controlled substance and one count of conspiracy to deliver a controlled substance. *fn1 Pacheco-Diaz moved to suppress the evidence obtained when the police recorded the conversation, arguing that the form authorizing the recording did not establish that the officers had probable cause to believe that the conversation would involve unlawful drug trafficking. Pacheco-Diaz claimed that although the authorization form showed that the informant was reliable, it did not establish the basis of his knowledge. Pacheco-Diaz also argued the police had not strictly complied with RCW 9.73.230 because the space in which the name of the consenting party was to be entered on the authorization form was left blank.
The trial court denied the motion to suppress and then convicted Pacheco-Diaz on stipulated facts. Pacheco-Diaz appealed.
Pacheco-Diaz argues that the form authorizing the police to record his conversation failed to establish the basis of the confidential informant's knowledge, so the officers did not demonstrate probable cause to believe the conversation would involve the unlawful sale, possession, manufacture, or delivery of a controlled substance. He claims the test for probable cause under the Privacy Act is the same as the Fourth Amendment standard. The State argues that a lesser standard of probable cause applies in cases involving the Privacy Act. We do not resolve this issue, but for purposes of this case apply the Fourth Amendment standard, and hold that the form established the confidential informant's basis of knowledge. The police thus demonstrated they had probable cause to believe the conversation would involve the unlawful sale of cocaine.
Generally, it is unlawful to intercept or record a private conversation by a device designed to record or transmit conversations unless all the parties to the conversation consent. RCW 9.73.030. However, the chief law enforcement officer of a law enforcement agency, or his or her designee, may authorize other officers to intercept, record, or transmit a conversation if one party to the conversation consents and there is probable cause to believe that the conversation will involve the unlawful sale, possession, manufacture, or delivery of a controlled substance. RCW 9.73.230(1). The authorizing officer must prepare a written report showing that one party has given consent and that probable cause exists, as well as indicating details about the circumstances of the offense to be intercepted. RCW 9.73.230(2). This court does not review the application de novo, but decides only if the facts in the report were minimally adequate to support the determination that was made. State v. Manning, 81 Wash. App. 714, 718, 915 P.2d 1162, review denied, P.2d (1996) (reviewing application under RCW 9.73.090(2)); State v. D.J.W., 76 Wash. App. 135, 145-46, 882 P.2d 1199 (1994), aff'd, State v. Clark, 129 Wash. 2d 211, 916 P.2d 384 (1996).
Pacheco-Diaz claims the Supreme Court decided in State v. Salinas *fn2 that the standard required to establish probable cause under the Privacy Act is the same as required by the Fourth Amendment. In that case, however, the court did not analyze whether a different standard should apply. Rather, the court applied the probable cause standard established in search warrant cases only because the Privacy Act did not set forth a different standard. Salinas, 119 Wash. 2d at 199. It does not appear that the State argued a lesser standard should apply. Furthermore, the Supreme Court indicated in a later case that it had not yet decided whether probable cause under the Privacy Act was different from that under the Fourth Amendment. See State v. Clark, 129 Wash. 2d 211, 223-24, n.12, 916 P.2d 384 (1996).
In State v. D.J.W., *fn3 however, this court concluded that a lesser standard does apply to establish probable cause under RCW 9.73.090 of the Privacy Act. D.J.W. was consolidated by the Supreme Court with several other cases in Clark, but because the Clark Court held that the conversations were not private, and therefore were not protected by the Privacy Act, it did "not consider the defendants' arguments that probable cause in the Privacy Act equates to probable cause under the Fourth Amendment[.]" Clark, 129 Wash. 2d at 223-24, n.12.
The D.J.W. court, however, had considered and explained why, to meet the standard of RCW 9.73.090, non-consenting parties need not be described with the particularity required to satisfy the constitutional probable cause standard:
To be valid, neither the application nor the authorization to record under RCW 9.73.090(5) must identify the nonconsenting parties with the degree of particularity required for search warrants. Rather, as the statute plainly provides, the nonconsenting party need only be described with "reasonable certainty under the circumstances." D.J.W., 76 Wash. App. at 144-45. The court, however, did not discuss whether the standard for determining if the conversation would concern the unlawful sale of a controlled substance under RCW 9.73.230 should be different. *fn4 The State in this case also does not clearly articulate how statutory probable cause should be different from Fourth Amendment probable cause, except to argue that the authorization form need not establish the basis ...