State Of Washington, V Baron Del Ashley, Jr. ( 2020 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 81392-7-I
Respondent,
v. DIVISION ONE
BARON DEL ASHLEY JR, UNPUBLISHED OPINION
aka Mike J Allen, Michael Jones Ashley,
Baron D Edington, Baron Dale Edington
Appellant.
LEACH, J. — Baron Del Ashley, Jr. appeals his convictions for felony
violation of a domestic violence no contact order protecting Lorrie Marie
Brookshire. Ashley asserts the State conducted an unlawful warrantless search in
violation of Article I, section 7 of the Washington State Constitution when it listened
to recorded conversations he made from jail to Brookshire. Because Ashley did
not have an expectation to privacy in the calls he made from jail, the recordings
were not “private affairs” protected under Article I, section 7. We affirm.
BACKGROUND
On April 3, 2018, Vancouver Police Department Detective Sandra Aldridge
arrested Baron Del Ashley, Jr. for violating a 2017 domestic violence no contact
order that prohibited him from contacting his wife Lorrie Marie Brookshire. The
trial court had modified this order to permit Ashley and Brookshire to talk by phone,
Citations and pincites are based on the Westlaw online version of the cited material.
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text, and email. While in custody, Detective Aldridge warned Ashley the trial court
would likely issue a new no contact order prohibiting him from talking by phone
with Brookshire. The next day, on April 4, 2018, the trial court entered another
domestic violence no contact order that prohibited Ashley from contacting
Brookshire by phone.
Ashley used the Clark County Jail phone to call Brookshire using his and
other inmates’ telephone accounts. By the phone, a sign is posted warning
inmates their calls “are recorded and subject to monitoring.” Telmate is the system
that records the calls. To place a call, inmates must enter their personal account
number. Telmate uses the account number to identify the inmate. It also records
the call receiver’s phone number, what time the inmate placed the call, and the
call’s duration. When a call is initiated, Telmate’s prerecorded message warns the
caller and the call receivers that the “call is subject to recording and monitoring.”
Telmate stores the recordings on an off-site server that is accessible to law
enforcement.
Detective Aldridge used Telmate to search for and identify calls placed from
Ashley to Brookshire. Detective Aldridge determined that Ashley called Brookshire
on April 4, 5, 7, and 8, 2018. The State charged Ashley with four counts of felony
domestic violence court order violation for contacting Brookshire on those days.
On April 25, 2018, Brookshire asked the court to modify/rescind the no
contact orders signed on April 11, 2018 and April 18, 2018. The trial court denied
her request pending trial.
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During trial, Ashley asked the court to suppress the recordings. He argued
that Detective Aldridge conducted an unlawful warrantless search. Detective
Aldridge testified the State generally does not obtain a search warrant before
searching and listening to recorded calls because the inmates do not have an
expectation of privacy with those calls. The trial court denied Ashley’s request. It
stated:
both the federal and the state courts have found that the practice of
putting up a notice saying everything is going to be recorded and
then automatically taping and randomly monitoring these calls of
inmates is proper and that the inmates, having been given that
warning and understanding that the calls are going to be recorded,
don’t have any expectation of privacy under either the federal or
State constitution.
...
[H]e doesn’t have a right to constitutional warnings where he
voluntarily decides to go on a system that -- and talk to a private
individual, knowing -- because the sign says so and because the
recording says so that the call is going to be recorded.
On December 13, 2018, the jury convicted Ashley on all four counts of
felony domestic violence court order violation. The trial court sentenced Ashley to
60 months of confinement. It did not impose another no contact order because it
determined the existing order would expire soon after Ashley’s release from jail,
and because Brookshire did not want a no contact order.
Ashley appeals.
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ANALYSIS
Private Affairs
Ashley asserts the trial court should have suppressed the recordings
because the State obtained them by an unlawful warrantless search in violation of
Article I, section 7 of the Washington State Constitution.
We review the denial of a request to suppress evidence by determining
whether substantial evidence supports the trial court’s findings of fact and whether
those findings support the trial court’s conclusions of law. 1 Substantial evidence
exists if it is sufficient to persuade a fair-minded, rational person of the truth of the
matter asserted.2 We review conclusions of law de novo. 3
The Washington State Constitution Article I, section 7 provides, “No person
shall be disturbed in his private affairs, or his home invaded, without authority of
law.” It protects against warrantless searches of a citizen’s private affairs.4 “To
determine whether governmental conduct intrudes on a private affair, we look at
the ‘nature and extent of the information which may be obtained as a result of the
governmental conduct’ and at the historical treatment of the interest asserted.”5
In State v. Archie, Archie appealed the trial court’s denial of his request to
suppress calls recorded from jail.6 This court determined the recordings of calls
1
State v. Levy, 156 Wash. 2d 709, 733, 132 P.3d 1076 (2006).
2
Levy, 156 Wash. 2d at 733.
3
State v. Schultz, 170 Wash. 2d 746, 753, 248 P.3d 484 (2011); State v.
Carneh, 153 Wash. 2d 274, 281, 103 P.3d 743 (2004).
4
Schultz, 170 Wash. 2d at 753.
5
State v. Muhammad, 194 Wash. 2d 577, 586, 451 P.3d 1060 (2019) (citing
State v. Miles, 160 Wash. 2d 236, 244, 156 P.3d 864 (2007)).
6
148 Wash. App. 198, 199 P.3d 1005 (2009).
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made from jail were not private affairs deserving protection under Article I,
section 7.7
Posted by the Clark County Jail inmate telephones are signs and a pre-
recorded Telmate message plays that warn callers and call receivers the calls are
subject to recording and monitoring. Looking at the nature and extent of the
information obtained, Ashley’s recorded calls were not private affairs deserving
protection under Article I, section 7 because he received multiple warnings the
calls were subject to recording and monitoring. And, looking at this court’s
treatment of the interest asserted, Ashley’s recorded calls from jail were not private
affairs deserving protection.
Consent
Ashley asserts that while he consented to the search of the recording by jail
officials, he did not consent to the search by the State as part of a criminal
investigation.
“Under article I, section 7, a search occurs when the government disturbs
‘those privacy interests which citizens of this state have held, and should be
entitled to hold, safe from governmental trespass absent a warrant.’”8 The State
must have a valid warrant to conduct a search unless the State shows that an
7
148 Wash. App. 198, 199 P.3d 1005 (2009).
8
Muhammad, 194 Wash. 2d at 586 (citing State v. Myrick, 102 Wash. 2d 506,
511, 688 P.2d 151 (1984)).
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exception to the warrant requirement applies. 9 A warrantless search is per se
unreasonable unless one of Washington’s recognized exceptions applies.10
A person may waive protection from warrantless searches by providing
meaningful and informed consent.11 “It is the State’s burden to establish that a
consent to search was lawfully given. In order to meet this burden, three
requirements must be met: (1) the consent must be voluntary, (2) the person
consenting must have the authority to consent, and (3) the search must not exceed
the scope of the consent.”12
In Archie, we found that Archie consented to the recording and monitoring
when he placed the call and continued the call after receiving a warning.13 Under
Archie, Ashley’s claim fails. A posted sign by the inmate telephone and the
Telmate pre-recording warned Ashley the call was subject to recording and
monitoring. Ashley consented to the search when he proceeded with the call after
receiving those warnings. And, regardless of who listened to the recordings and
their reason for doing so, Ashley’s conversations were not protected under
Article I, section 7.
9
Muhammad, 194 Wash. 2d at 586 (citing State v. Miles, 160 Wash. 2d 236, 244,
156 P.3d 864 (2007); State v. Rife, 133 Wash. 2d 140, 150-51, 943 P.2d 266 (1997)).
10
State v. Rankin, 151 Wash. 2d 689, 695, 92 P.3d 202 (2004).
11
Schultz, 170 Wash. 2d at 753, 758.
12
State v. Thompson, 151 Wash. 2d 793, 803, 92 P.3d 228, 233 (2004).
13
Archie, 148 Wash. App. at 204.
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Plain View Exception
The State argues the recordings falls under the plain view exception to the
warrant requirement. Because the State prevails without this argument, we do not
address it.
CONCLUSION
Because Ashley had no reasonable expectation of privacy, the recordings
were not “private affairs” protected under Article I, section 7, and the trial court
properly admitted the recordings. We affirm.
WE CONCUR:
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