State Of Washington v. Zakaria Aweis Dere , 195 Wash. App. 161 ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, o \,
No. 72713-3-1
Respondent,
DIVISION ONE ro
v.
BASHIRABDIRASHID MOHAMED,
MOHAMED ABDIALI, en
PUBLISHED OPINION
Defendants,
FILED: July 25, 2016
and
ZAKARIAAWEIS DERE, and each of
them,
Appellant.
Becker, J. — A telephone conversation between a jail inmate and a
person outside the jail is not a private communication when the participants are
advised that the call will be recorded and must confirm their understanding that
they are being recorded. A recording of such a conversation is admissible
against the noninmate participant as well as against the inmate.
Appellant Zakaria Dere appeals from a robbery conviction. Before the
trial, Dere posted bail and was released from custody. Dere received several
calls from Mohamed Ali, a codefendant who remained in jail. Their conversations
were recorded by the jail's telephone system. The recordings provided evidence
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of Dere's complicity in the robbery and were used by the State at trial. Dere
assigns error to the denial of his motion to suppress the recordings.
Dere moved to suppress the recordings on the basis that they violated his
privacy rights.
Dere first contends admission of the recordings violated the Washington
privacy act, chapter 9.73 RCW. Recordings obtained in violation of the act are
inadmissible for any purpose at trial. RCW 9.73.050. The act makes it unlawful
to intercept or record private communications transmitted by telephone without
first obtaining the consent of all participants in the communication. RCW
9.73.030(1); State v. Modica. 164 Wash. 2d 83, 87, 186 P.3d 1062 (2008). A
communication is private when parties manifest a subjective intention that it be
private and where that expectation is reasonable. State v. Christensen, 153
Wash. 2d 186, 193, 102 P.3d 789 (2004).
Dere's conversations with Ali were not private communications. Dere and
Ali did not have a reasonable expectation of privacy in their telephone
conversations because they knew their calls were recorded and subject to
monitoring. See Modica, 168 Wash. 2d at 88-89.
In Modica, the defendant was arrested and jailed for punching his wife in
the face. The defendant called his grandmother from jail to enlist her help in
arranging for his wife to evade the prosecutors and not appear in court. Modica,
164 Wash. 2d at 87. The jail recorded the calls between the defendant and his
grandmother, and the State used the recordings to convict the defendant of
witness tampering. The conviction was affirmed against an appeal asserting that
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the recordings violated the privacy act. Modica, 164 Wash. 2d at 86. Because the
defendant and his grandmother both knew their calls were recorded and subject
to monitoring, the court rejected the argument that the calls were private
communications.
In Modica, signs posted near the jail telephones warned that the system
recorded every outgoing call and tracked every number dialed. Modica, 164
Wash. 2d at 86. An automated message repeated that warning to both those
making and receiving the calls. The same was true in this case. Similar signs
were posted and a similar warning was given by an automated message. Each
time Dere received a call from Ali, the jail telephone system played an automated
message stating as follows:
Hello. This is a free call from [name of inmate], an inmate at King
County Correctional Facility. This call is from a correctional facility
and is subject to monitoring and recording. Ifthis call is being
placed to an attorney, it should not be accepted unless the attorney
name and number is on the do not record list. If an attorney name
and number is not on the do not record list, this call will be
recorded. Ifthe attorney name and number is not on the do not
record list, contact the jail immediately and have that attorney's
name and number added to the attorney list. After the beep, press
1 to accept this policy or press 2 and hang up.
In Modica, the court noted that the presence of signs or automated
recordings "do not, in themselves, defeat a reasonable expectation of privacy."
Modica, 164 Wash. 2d at 89. "However, because Modica was in jail, because of the
need for jail security, and because Modica's calls were not to his lawyer or
otherwise privileged, we conclude he had no reasonable expectation of privacy."
Modica, 164 Wash. 2d at 89. Dere argues that to the extent the Modica rationale
depends on the "need for jail security," Modica, 164 Wash. 2d at 89, his case is
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distinguishable because nothing that he and Ali discussed in their recorded
conversations had any connection to matters of jail security.
The argument that recordings are inadmissible when they are requested
by the prosecutor for the purpose of investigation rather than because of safety
concerns was rejected in State v. Hag. 166 Wash. App. 221, 259-60, 268 P.3d 997,
review denied, 174 Wash. 2d 1004 (2012). The jail records all inmate calls because
jail authorities cannot know in advance which calls may contain information
pertaining to plans of escape, tampering with witnesses, and other potential
breaches of security. Thus, the need for jail security is a generalized rationale.
Because an outsider's conversations with an inmate have the potential to affect
the security of the jail, the State is not required to identify a security concern
individualized to a specific inmate to remove a recorded jail phone call from the
realm of private communications.
In Modica, the recordings were admitted against a defendant who was an
inmate when he participated in the recorded call. Dere claims that Modica does
not govern the admissibility of recordings the State seeks to use against a
noninmate. The point of Modica, however, is that except for attorneys, anyone
who uses the jail telephone system to carry on a telephone conversation with an
inmate is subject to the inmate's diminished expectation of privacy. Just as
Modica's grandmother did not have a reasonable expectation that her
conversations with him would be private, Dere did not have a reasonable
expectation that his conversations with Ali would be private. See Modica, 164
Wash. 2d at 88.
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Dere contends that he did not know his calls were recorded. This
argument is foreclosed by findings of fact to which Dere has not assigned error.
Dere had been an inmate himself and was aware of the recording policy. Dere
and Ali heard the recorded message that each phone call was recorded and
subject to monitoring at any time. The message was reinforced by the signs
posted near the jail telephone. This evidence established Dere's knowledge that
his telephone conversations with Ali would be recorded. Dere suggests that such
recordings are analogous to a hidden microphone that intercepts attorney-client
communications, but the comparison is inapt. The recordings were not
surreptitious, and the conversations between Dere and Ali were not privileged.
Following Modica and Hag, we conclude Dere did not have a reasonable
expectation of privacy in his telephone conversations with Ali. Because the calls
were not private communications, the privacy act does not apply.
Dere also claims that the recording of his calls from Ali violated his
constitutionally protected privacy rights. Article I, section 7 of the Washington
Constitution generally protects the privacy of telephone conversations, but calls
from a jail inmate are not private affairs deserving of article I, section 7
protection. State v. Archie, 148 Wash. App. 198, 204, 199 P.3d 1005, review
denied, 166 Wash. 2d 1016 (2009). A jail recording system serves an important
institutional security interest and its operation typically demonstrates that at least
one participant in a conversation has consented to the recording. Archie, 148
Wash. App. at 204. The inspection of other forms of communication with inmates,
such as ingoing and outgoing mail and packages, is not an invasion of a privacy
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interest protected by the Washington Constitution so long as the inmate is
informed of the likelihood of inspection. Archie, 148 Wash. App. at 204. The
security concerns are the same whether the inmate is a pretrial detainee or is
being incarcerated after trial and they do not depend upon whether the
communication is by mail or telephone. Archie, 148 Wash. App. at 204. The facts
here are similar to those in Archie, and like in Archie, there was both notice and
consent. The trial court found that both Ali and Dere "expressly consented to the
recording" when they pressed the number that allowed the call to continue after
they heard the automated message quoted above.
Likewise, a warrantless monitoring of conversations does not violate the
Fourth Amendment to the United States Constitution when one party to the
conversation gives consent. State v. Corliss, 123 Wash. 2d 656, 663, 870 P.2d 317
(1994). The practice of automatically taping and randomly monitoring telephone
calls of inmates in the interest of institutional security is not an unreasonable
invasion of the privacy rights of pretrial detainees. United States v. Willoughbv,
860 F.2d 15, 21 (2d Cir. 1988), cert denied, 488 U.S. 1033 (1989). Willoughbv
rules out Dere's contention that under the Fourth Amendment his own privacy
rights as a noninmate were entitled to greater protection than Ali's. "Contacts
between inmates and noninmates may justify otherwise impermissible intrusions
into the noninmates' privacy," given the strong interest in preserving institutional
security. Willoughbv, 860 F.2d at 21-22.
Dere compares the State's use of the recordings as a tool of investigation
to the warrantless search of a cellphone in Riley v. California, U.S. , 134
No. 72713-3-1/7
S. Ct. 2473, 189 L. Ed. 2d 430 (2014), and the warrantless eavesdropping
described in Katz v. United States. 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576
(1967). Those cases are inapposite. Consent is a well-recognized exception to
the warrant requirement. See Katz, 389 U.S. at 358 n.22. Dere consented to
having his conversation recorded.
Following Archie and Willoughbv, we conclude there was no violation of
Dere's constitutional privacy interests.
Dere also assigns error to evidentiary rulings. Over Dere's hearsay
objection, an officer was allowed to testify that the victim of the robbery, a cab
driver, provided the license plate number of the car seen driving away from the
scene. The significance of the license plate was that the police later located the
car at the address where it was registered and arrested Dere when he got into
the car and started driving away.
The cab driver had not actually seen the license plate; he had obtained
the number from another witness. Dere contends the officer's testimony was
evidence of the type ruled inadmissible in State v. Aaron, 57 Wash. App. 277, 787
P.2d 949 (1990). Aaron is dissimilar. The error in Aaron was allowing an officer
to repeat hearsay linking the defendant to a burglary. The admission of such
evidence cannot be justified on the basis that it merely explained why the officer
acted as he did. Aaron, 57 Wn. App at 279-80. The officer in this case had
personal knowledge that the police obtained the plate number from the victim.
We find no error.
No. 72713-3-1/8
Dere's reply brief addresses the license plate testimony as a violation of
his constitutional right to confront the witness who actually did see the license
plate on the night of the robbery but who did not testify. Because this argument
was not made in the opening brief, we do not consider it. Norcon Builders, LLC
v. GMP Homes VG, LLC, 161 Wash. App. 474, 497, 254 P.3d 835 (2011).
Dere also contends the trial court admitted testimony that amounted to an
improper opinion on his guilt. A third participant in the robbery, Bashir Mohamed,
testified against Dere after reaching a plea agreement with the State. Mohamed
testified that he hit the victim while Dere demanded money. When the
prosecutor asked Mohamed whether the victim fled from the crime scene "as a
direct result of what you and Mr. Dere were doing together," Mohamed answered
in the affirmative.
According to Dere, the State's line of questioning was akin to asking
Mohamed whether Dere intended to commit the robbery. Dere did not object on
this basis below. But in any event, Mohamed's testimony did not manifestly
amount to an express opinion that Dere was guilty or had criminal intent. It was
based upon his own observations and helpful to an understanding of facts at
issue. See ER 701. We reject the argument.
8
No. 72713-3-1/9
Affirmed.
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WE CONCUR:
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