State v. Fedorov

F 1-I:~E·. Thl~ opinion was flied for record
at 8 K);;) eyy;, on AYj . (q • ao IS
IN CLERKI OPFICI'
nnarr•!IIPII
ll.IPRt'ME COURT,
' DATE AUG 0 ' 2U'i5 ·~
rna~:·
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF \VASHINGTON, )
) No. 90939-3
Respondent, )
)
v. ) EnBanc
)
ROMAN MIKHAILOVICH FEDOROV, )
)
Petitioner. )
--------.) Filed AUG 0 ~ 2015
JOHNSON, J.-.This case involves private consultation with counsel in the
context of CrR 3.1, the rule-based right to counsel. Roman Fedorov was arrested
for attempting to elude law enforcement and driving under the influence. He was
transported to the Fife City Jail for the purpose of administering a breath alcohol
concentration (BAC) test. Fedorov asked for, and was granted, the opportunity to
sp~ak with an on-call defense attorney by telephone before consenting to take the
BAC test, pursuant to CrR 3 .1. T'he Washington State Patrol (WSP) trooper,
however, remained in the one-room Fife jail, citing safety concerns and his need to
perform a 15~minute observation period before administering the BAC test. The
trooper stood out of earshot at the far side of the room. Fedorov and his attorney
chose to converse only in yes/no questions, fearing Fedorov would blurt out
State v. Fedorov (Roman), No. 90939-3
something incriminating. Fedorov argues that the presence of the trooper in the
room violated his rule-based tight to counsel because only with absolute privacy
can· the right to counsel be effective.
We hold that the rule-based right to counsel does not provide for a right to
absolute privacy for conversations between attorney and client. The rule-based
right to counsel in CrR 3.1 and CrRLJ 3.1, 1 by its own terms, provides only an
opportunity to contact an attorney. Once contacted, privacy between the arrestee
and attorney may be balanced against legitimate safety and practical concerns, and
challenges alleging such violations are reviewed under the totality of the
circumstances. We affirm.
FACTS AND PROCEDURAL HISTORY
Near midnight in January 2012, WSP Trooper Ryan Durbin's radar detector
clocked a car moving at 119 mph on Interstate 5 (I-5) near Fife. Durbin pursued;
t~e car accelerated to 130 mph, avoiding traffic by driving on the far right shoulder
and then suddenly exiting I-5, running several red lights. The car, now traveling
the wrong way down Pacific A venue, turned off its lights and drove into a parking
lot. Trooper Durbin cornered the car and directed the occupants to exit. A
passenger quickly exited the vehicle. The driver, Fedorov, exited slowly, resisting
1
CrRLJ 3.1, applicable in courts of limited jurisdictions, is coextensive with CrR 3 .1. As
a matter of convenience, generic references to this rule-based right in this opinion are to CrR 3.1.
2
State v. Fedorov (Roman), No. 90939-3
Trooper Durbin's directions to lie flat on the ground. Durbin observed in Fedorov
signs of intoxication, including bloodshot eyes and poor coordination. He arrested
Fedorov, read him his Miranda 2 rights, and transported him to the nearest police
station with a BAC machine: the Fife Police Department.
The Fife Police Department is also a jail, run by only one officer. The
building is basically one large windowless room, variously described in the record
as being 29 feet by 17 feet or "29 paces" by "1 7 paces," entered via a sally port.
Verbatim Repo'rt of Proceedings (Vol. 1 & 2) at 22. Testimony at trial stated that
officers who brought individuals to the jail for BAC testing were personally
responsible for their arrestees. Entering and exiting the jail is difficult because only
one officer has the k.ey to the sally port. A telephone is located at one end of the
room, along with a metal loop so that arrestees can be handcuffed to that location.
At the other end of the room is a washing machine and clothing for those
incarcerated.
Trooper Durbin asked Fedorov to take a BAC test. He read the implied
consent warnings and asked a series of preliminary questions. He also began the
statutorily required 15-minute pretest observation period before administering the
test. After answering these questions, Fedorov asked to speak to an attorney.
----------
2
~Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3
State v. Fedorov (Roman), No. 90939-3
Trooper
. . ..
Durbin arranged for Fedorov
; ' .
to speak to a public
' . .·
defender, Nicholas
Andrews, by telephone.
Andrews began by asking Trooper Durbin some preliminary questions about
Fedorov. He then asked for complete privacy. Durbin responded that because he
could not observe Fedorov from outside the jail, he could not provide Fedorov with
complete privacy. Durbin testified that when an arrestee asks for privacy, he would
· walk to the other side of the room near the washing machine to give as much
privacy as he· could while keeping the arrestee in view.
Andrews twice told Fedorov to ask Trooper Durbin for complete privacy;
Durbin testified that he did not recall these requests. Durbin also testified that he
would not have been able to hear Fedorov's conversation at the far side of the
roorn unless Fedorov spoke loudly. Andrews asked Fedorov a series of yes/no
questions but testified b1ter at the suppression hearing that the yes/no format made
asking certain questions unfeasible given the allotted time. Andrews did, however,
inforrn Fedorov ofhis rights and the consequences of refusing the BAC test. He
did not make a recommendation to Fedorov whether to take the test. This
telephone call between ~ndrews and Fedorov lasted approximately 13 minutes; the
record does not show that Trooper Durbin interrupted or interfered in any way.
Durbin testified that he stood by the washing machine at the other end of the room
4
State v. Fedorov (Roman), No. 90939-3
filling out paperwork during the telephone call. Fedorov agreed to take the BAC
test. His results were .096 and .095.
Fedorov moved to suppress the BAC test results. He argued that Trooper
Durbin's presence denied him his right to converse privately with counsel. The
trial judge agreed that there was insufficient privacy afforded to Fedorov, but
concluded that he suffered no prejudice because he was still able to freely converse
with Andrews and he decided to take the BAC test anyway. Fedorov's motion to
suppress was denied, and he was later convicted by jury trial. He appealed.
Although Fedorov did not assign error to any of the trial court's findings, the
State challenged "Findings as to Disputed Facts No. 1" because this "finding"
contained an imbedded conclusion of law, that "there was insufficient privacy
afforded to the defendant during his phone call with Mr. Andrews." Clerk's Papers
at 117. All other findings are verities on appeal. The Court of Appeals affirmed,
but on different grounds. State v. Fedorov, 183 Wash. App. 736, 335 P.3d 971
(2014), review granted, 182 Wash. 2d 1021 (2015). Following Division One of the
Court of Appeals' holding in City of Seattle v. Koch, 53 Wash. App. 352, 767 P.2d
143 (1989), the court reasoned that the presence of an officer does not necessarily
deny a defendant the right to private consultation with counsel. Rather, because the
rule-based right to counsel at this stage is limited, whether the right was violated
depends on the facts and circumstances of each case. Concluding that there was no
5
Stat:e v. Fedorov (Roman), No. 90939-3
violation ofthe rule-based right to counsel, the Court of Appeals did not address
the issue of prejudice.
ANALYSIS
The partiesagree that the Sixth Amendment to the United States
Constitution '·sright to counsel is not implicated in this case. Our resolution rests
exclusively on the rule-based right under CrR 3 .1. In relevant part, the rule reads:
(c) Explaining the Availability of a Lawyer.
( 1) When a person is taken into custody that person shall
immediately be advised of the right to a lawyer. Such advice shall be
made in words easily understood, and it shall be stated expressly that
a person who is unable to pay a lawyer is entitled to have one
provided without charge.
(2) At the earliest opportunity a person in custody who desires a
lawyer shall be provided access to a telephone, the telephone number
of the public defender or official responsible for assigning a lawyer,
and any other means necessary to place the person in communication
with a lawyer.
CrH. J.l; see CrRLJ 3 .1.
By its terms, the rule provides for the opportunity to access an attorney, but
it does not address the circumstances in this case where a defendant contacts an
attorney by telephone. and the officer remains in the room during that consultation.
Although Fedorov acknowledges that the Sixth Amendment is not implicated in
this case, he nonetheless argues that the rule provides the exact same right to
private consultation as under the Constitution. We disagree.
6
State v. Fedorov (Roman), No. 90939-3
· . Washington cases have consistently held that the rule-based right to counsel
is more limited than its constitutional counterpart. For example, the rule "require[s]
more an opportunity, rather than actual communication with an attorney." City of
. .
Airway Heights v. Dilley, 45 Wash. App. 87, 93, 724 P.2d 407 (1986) (repeated but
unsuccessful attempts to contact attorney satisfies CrR 3.1 ). The rule also does not
provide a right to access counsel of one's own choice. City of Seattle v. Sandholm,
65 Wash. App. 747, 751, 829 P.2d 1133 (1992) (CrRLJ 3.1 satisfied when defendant
had opportunity to speak with public defender, but not own counsel). And we have
held that the right to counsel under former JCrR 2.11 (1973) does not permit a
defendant to delay BAC testing while waiting for an attorney to arrive. State v.
Staeheli, 102 Wash. 2d 305, 309, 685 P.2d 591 (1984). 3
We have previously addressed situations where the right to private
consultation with counsel is implicated. In State v. Cory, 62 Wash. 2d 371, 382 P.2d
1019 (1963 ), we reversed a conviction and dismissed the prosecution where the
sheriff's office installed a listening device in the room where the defendant and his
counsel conversed. We held that such intentional eavesdropping violated the Sixth
Amendment right to counsel. More recently, in State v. Pefia Fuentes, 179 Wn.2d
808,819,318 P.3d 257 (2014), we reemphasized our concerns over illegal
3
Staeheli involved a review of license revocation under the implied consent statute. The
case implicated former JCrR 2.11, the predecessor rule to CrR 3.1 and CrRLJ 3 .1.
7
State v. Fedorov (Roman), No. 90939-3
intrusion into private attorney-client communications where police intentionally
wiretapped the defendant's telephone conversations with his attorney in order to
gather incriminating evidence for possible additional criminal charges. We
declined, however, to adopt a per se rule requiring automatic reversal, holding
instead that such eavesdropping was presumed prejudicial unless the State can
prove beyond a reasonable doubt that the eavesdropping did not result in such
prejudice.
The concerns in Cory and Pena Fuentes are inapposite to this case. Both
those cases involved the Sixth Amendment right to counsel, not the limited rule-
based right at issue here. Factually, there has not been any showing in this case that
Trooper Durbin remained in the room with the intent of gaining more information
for use in the prosecution, a far cry from the intentional eavesdropping and
wiretapping in Cory and Pena Fuentes. Nor has there been any showing that
Trooper Durbin actually heard the conversation between Fedorov and Andrews-
the unchallenged findings are that Trooper Durbin did not recall hearing anything.
And Trooper Durbin obtained no evidence by being in the room.
The more analogous case to the present one is Koch, on which the Court of
Appeals primarily relied. Koch presented two consolidated cases: in both cases
officers brought in the arrestees for BAC testing; in both cases a police officer
remained nearby while the defendant spoke to counsel during their CrRLJ 3.1
8
State v. Fedorov (Roman), No. 90939-3
consultation; in both cases the defendant later challenged the charges on the
grounds that they received inadequate access to counsel. Defendant Hanson spoke
to counsel with the arresting officer 5 to 10 feet away, separated by a brick wall
with an open window. The officer testified that he could hear Hanson speaking but
could not make out any of her words. Defendant Koch was placed in a room
approximately 30 feet wide by 50 feet long. The arresting officer remained in the
room approximately 10 to 15 feet away. The officer also testified that he could
hear Koch speak but could not make out any words unless Koch spoke loudly.
Koch's counsel, like Fedorov's, chose to ask only yes/no questions. Koch, 53 Wn.
App. at 355.
The Koch court began its analysis by acknowledging that the right to counsel
under CrRLJ 3.1 is a limited one. It distinguished an Arizona case, State v.
Iiolland, 147 Ariz. 453, 711 P.2d 592 (1985), in part because neither Hanson nor
Koch made a specific request for counsel, nor did either defendant articulate
specific prejudice that resulted from having the arresting officers nearby. The court
held that because neither defendant had requested additional privacy, their right to
counsel under CrRLJ 3.1 was not violated. It concluded the opinion by noting:
It does not necessarily follow, however, and we do not mean to
imply, that in every case where such a request is made, the police
must grant increased privacy. This may depend on a number of factors
such as the unique security and safety problems presented by a
particularly uncooperative, intoxicated defendant.
9
State v. Fedorov (Roman), No. 90939-3
Koch, 53 Wash. App. at 358 n.7.
Even in this case, where complete privacy was requested, we find Koch's
analysis persuasive. Although we emphasize that police should provide as much
privacy as possible during such consultations, that privacy is balanced against
legitimate safety and practical concerns. When analyzing alleged violations, a
reviewing court looks to a number of factors and makes a case-by-case
determination under the totality of the circumstances. There is no exclusive list, but
these factors include concerns for the safety of police, prevention of harm to police
property, the need to comply with testing protocols, and the physical setting where
the events take place. Of special concern may be the safety of the arrestee:
arrestees can pose dangers to themselves, be in danger from substances they may
have taken, or have pressing medical conditions both related and unrelated to the
crime of arrest. And if police afford lesser privacy to an arrestee, evidence of
intentional intimidation or eavesdropping by police meant to undermine the
arrestee's rule-based right to consultation would weigh toward finding a violation
ofCrR 3.1.
In this case we find no violation of CrR 3 .1. Trooper Durbin had legitimate
reasons for remaining in the room during Fedorov's telephone conversation with
counsel: Fedorov was uncooperative at the time of arrest, and therefore Trooper
10
State v. Fedorov (Roman), No. 90939-3
Durbin had legitimate concerns about leaving Fedorov alone. The layout of the
Fife jail only increased these concerns because giving Fedorov complete privacy
would have required Trooper Durbin to lock himself out of the jail and away from
his arrestee. Trooper Durbin was also required by statute to observe Fedorov for 15
minutes prior to administering the BAC test, something he could not have done if
he were outside the windowless jail. Trooper Durbin also afforded Fedorov
sufficient privacy by moving to the other side of the room, out of earshot, and the
record contains no evidence that Durbin interfered, or even so much as paid
attention to, Fedorov's conversation. Finally, Andrews testified that he fully
informed Fedorov of his rights under the implied consent law and the
consequences if he declined to take the BAC test. We find no rule violation.
CONCLUSION
The rule-based right to counsel in CrR 3.1 is a limited one. It is not
coextensive with the Sixth Amendment right to counsel. As such, the right to
private consultation with counsel is to be weighed against legitimate safety and
practical concerns. Under these facts, Trooper Durbin afforded Fedorov sufficient
11
State v. Fedorov (Roman), No. 90939-3
privacy under the circumstances. The Court of Appeals is affirmed.
WE CONCUR:
``)
-~-----~····--------·
(2,9 . ·----
12