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State v. Kipp

Supreme Court of Washington, En Banc

February 6, 2014

The State of Washington, Respondent,
v.
William John Kipp, Jr., Petitioner

Argued September 19, 2013.

Alton B. McFadden II (of Olsen & McFadden Inc. PS ), for petitioner.

Russell D. Hauge, Prosecuting Attorney, and Jeremy A. Morris, Deputy, for respondent.

Sarah A. Dunne, Nancy L. Talner, and Douglas B. Klunder on behalf of American Civil Liberties Union of Washington, amicus curiae.

AUTHOR: Justice Charles W. Johnson. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Susan Owens, Justice James M. Johnson, Justice Debra L. Stephens, Justice Sheryl Gordon McCloud. AUTHOR: Justice Mary E. Fairhurst. WE CONCUR: Steven C. Gonzá lez, and Charles K. Wiggins

OPINION

Page 1030

C. Johnson, J.

[179 Wn.2d 722] ¶ 1 The central issue in this case is whether the trial court erred in admitting into evidence a secretly recorded conversation between William Kipp and his brother-in-law in violation of Washington's privacy act, chapter 9.73 RCW. Kipp was convicted of two counts of rape of a child and one count of child molestation in the second degree. Part of the evidence presented at trial was a recording of a conversation made without Kipp's knowledge or consent. Before trial, Kipp moved to suppress the recording, relying on the privacy act. The trial court ruled that the recording was not a private conversation and, therefore, not subject to suppression. A jury found Kipp guilty and he appealed. In a split decision, the Court of Appeals affirmed, holding that substantial evidence supported the trial court's ruling. In reaching its conclusion, the Court of Appeals rejected this court's precedent under State v. Clark, 129 Wn.2d 211, 916 P.2d 384 (1996), which holds that when facts are undisputed, the question of whether a particular communication is private is a matter of law reviewed de novo. The Court of Appeals utilized an abuse of discretion standard on review. Kipp petitioned this court for discretionary review, which we granted. State v. Kipp, 171 Wn.App. 14, 286 P.3d 68 (2012), review

Page 1031

granted, 176 Wn.2d 1024, 301 P.3d 1047 (2013). We hold that for purposes of the privacy act, when facts are undisputed, the question of whether a particular communication is private is a matter [179 Wn.2d 723] of law reviewed de novo. In this case, Kipp's conversation with his brother-in-law was private and therefore should have been suppressed. We reverse and remand.

Facts and Procedural History

¶ 2 William Kipp was accused of sexually assaulting two of his nieces. He was confronted by their father, Kipp's brother-in-law, who secretly recorded the conversation onto a cassette tape. This conversation was reported to police. The State charged Kipp, for the acts against one of his nieces, with two counts of second degree rape of a child and one count of second degree child molestation.

¶ 3 Before trial, Kipp moved to suppress the recorded conversation under the privacy act, chapter 9.73 RCW. The trial court declined to conduct an evidentiary hearing and instead accepted the facts put forth by the parties. [1] The trial court also listened to the recording, which was a little over 10 minutes in duration, and accepted the following undisputed facts: (1) Kipp did not know he was being recorded, (2) the taped conversation is about 10 minutes long, (3) the conversation took place in the upstairs kitchen of a private home, (4) the conversation was between Kipp and his brother-in-law, (5) the topic of conversation was the accusation that Kipp molested Joseph Tan's daughters, and (6) Kipp suggested toward the end of the conversation that they talk about it further at a later time. Based on these facts, the trial court concluded that the conversation between Kipp and his brother-in-law was not a private conversation and therefore not subject to suppression under the privacy act. The recorded conversation was admitted into evidence at trial, and the court reporter transcribed the recording to the best of her abilities. The court revisited the suppression motion after the State substituted the original [179 Wn.2d 724] recording during trial. The court reaffirmed its earlier ruling. A jury found Kipp guilty on all counts.

¶ 4 Kipp appealed. The Court of Appeals affirmed in a split decision, holding that sufficient evidence supported the trial court's decision that the conversation was not private. We granted Kipp's petition for discretionary review. The American Civil Liberties Union of Washington filed a brief in support of Kipp's argument.

Analysis

¶ 5 The privacy act prohibits recording of any " [p]rivate conversation, by any device electronic or otherwise designed to record or transmit such conversation regardless [of] how the device is powered or actuated without first obtaining the consent of all the persons engaged in the conversation." RCW 9.73.030(1)(b). Evidence obtained in violation of the act is inadmissible for any purpose at trial. RCW 9.73.050. It is undisputed that the conversation was recorded without Kipp's permission. The only issue, then, is whether the conversation between Kipp and his brother-in-law was " private."

¶ 6 Generally, the privacy act is implicated when one party records a conversation without the other party's consent. Washington State's privacy act is considered one of the most restrictive in the nation. State v. Townsend, 147 Wn.2d 666, 672, 57 P.3d 255 (2002).

¶ 7 " Our state has a long history of statutory protection of private communications and conversations." Clark, 129 Wn.2d at 222.

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 ...

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