Clayton Sr. appeals from three convictions for unlawful
possession of a firearm, challenging the use under our
Privacy Act of a police body camera recording. We affirm.
charges arose from a visit by law enforcement to a Spokane
home. On the evening of October 7, 2016, multiple officers
responded to the residence following a report of shots being
fired. Mr. Clayton let officers in the residence and
consented to a search. There were six people in the residence
in addition to the officers who entered. Three officers had
active body cameras recording the investigation, but none of
the residents were advised of that fact.
officer discovered two revolvers in a dresser and also
observed bullet holes in a couch, wall, and the floor. Upon
learning that Mr. Clayton was ineligible to possess the
revolvers, officers arrested him for unlawful possession of
the weapons. The prosecutor charged two counts of unlawful
possession of a firearm based on the October arrest.
girlfriend, Barbara Lawley, told officers that one month
earlier, Clayton had fired a shot in the apartment that
struck the couch on which she was sitting. Ultimately, the
prosecutor charged Clayton with one count of second degree
assault and one count of unlawful possession of a firearm for
the September incident, as well as two counts of unlawful
possession of a firearm for the two weapons recovered in
October. The defense objected to the joinder of the September
charges to the existing October counts, but the court
permitted the amendment. The court also denied a motion to
sever the counts at the conclusion of the State's case.
conducting a CrR 3.6 hearing on a defense motion to suppress
the recordings, the court permitted the video evidence only
to the point where the officer discovered the guns and
arrested Clayton. Body camera footage from one of the
officers was played for the jury at trial.
testified at trial that an acquaintance, Jeff, had fired the
shot at Lawley in June and that Clayton had momentarily
possessed the weapon before returning it to the man. He also
told jurors that he had purchased the two replica weapons for
his mother at an estate sale because she collected old guns
and wanted the weapons; he never owned or possessed them.
During the instruction conference, the court declined to give
the defense's request for a necessity instruction, ruling
that the defense had failed to make the necessary showing to
obtain the instruction.
counsel argued that his client had not assaulted Lawley and
that her behavior in not immediately reporting to police and
remaining with Clayton was inconsistent with her claim that
he had shot at her a month earlier. He also argued that his
client's momentary control over the weapons did not
constitute dominion and control of them.
jury acquitted Clayton on the assault charge, but convicted
him of all three unlawful possession charges. After the court
imposed standard range sentences for the offenses, Mr.
Clayton timely appealed to this court. A panel considered his
appeal without hearing argument.
Clayton raises three issues in his appeal. In order, we
consider his contentions that the court erred in admitting
the body camera evidence, in denying his motion to sever, and
in refusing to instruct on necessity.
Clayton argues that the police body camera recording was made
in violation of the "Privacy Act," chapter 9.73
RCW, rendering the evidence inadmissible. Because the police
interaction with Mr. Clayton and his family was not a private
conversation, there was no error.
Privacy Act prohibits intercepting or recording a private
communication unless all parties to the communication
consent. RCW 9.73.030(1)(b). "Any information obtained
in violation of RCW 9.73.030 . . . shall be inadmissible in
any civil or criminal case in all courts of general or
limited jurisdiction in this state." RCW 9.73.050.
"Whether a conversation is private is a question of fact
but may be decided as a question of law where . . . the facts
are not meaningfully in dispute." State v.
Modica, 164 Wn.2d 83, 87, 186 P.3d 1062 (2008).
Privacy Act does not define "private," but courts
have previously found it means "'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.'" State v. Clark, 129 Wn.2d 211,
225, 916 P.2d 384 (1996) (alterations in original) (quoting
Kadoranian v. Bellingham Police Dep't, 119 Wn.2d
178, 189-90, 829 P.2d 1061 (1992)). A communication is
private under the act when (1) the parties have a subjective
expectation that it is private, and (2) that expectation is
objectively reasonable. Modica, 164 Wn.2d at 88.
Among other things, the subject matter of the calls, the
location of the participants, the potential presence of third
parties, and the roles of the participants are relevant to
whether the call is private. Clark, 129 Wn.2d at
legislature has crafted some specific provisions that address
the recording of conversations involving law enforcement. Two
of those provisions are of particular interest to this case.
Law enforcement may record people who have been arrested upon
(i) informing the person that a recording is being made, (ii)
stating the time of the beginning and ending of the recording
in the recording, and (iii) advising the person at the
commencement of the recording of his or her constitutional
rights. In addition, (iv) the recording may be used only for
valid police or court activities. RCW
mounted cameras may also make audio and visual recordings
from video cameras mounted in police vehicles. RCW
9.73.090(1)(c). Absent exigent circumstances, the person
must be told that he or she is being recorded. Id.
However, there is no requirement that the individual consent
to the recording.
the trial court concluded that the investigation did not
involve a private conversation and that the provisions of RCW
9.73.090(1)(b) did not apply until Mr. Clayton was arrested.
Mr. Clayton argues on appeal that the conversations in his
home were ...