In State v. Kipp, a unanimous court reversed a defendant’s conviction because the trial court admitted a recording of a conversation that was protected by Washington’s privacy act.  A six Justice majority further ruled that Washington’s privacy act requires appellate courts to review de novo trial court decisions that a conversation was not private.  In a win for the amicus ACLU, the court emphasized that Washington’s statutory privacy protections trump law enforcement expediency.

Background:   The defendant was accused of ugly crimes – child rape and child molestation of his nieces. The children’s father confronted the defendant and secretly recorded the conversation on a tape.  The tape was provided to the police and admitted into evidence over defense objections.  The facts of how the conversation was recorded were undisputed.

A jury found the defendant guilty of all charges.  The defendant appealed and the Court of Appeals affirmed, holding that sufficient evidence supported the trial court’s decision that the conversation was not private.

Analysis:  The Supreme Court reversed the Court of Appeals and held that whether a conversation is or is not private is a matter of law subject to de novo review.  Applying de novo review, the Court found that the conversation was private and should not have been admitted.

Both the majority and concurrence emphasized that Washington provides by statute greater privacy protection than is afforded under the federal or state constitution.  Today’s decision is therefore consistent with the state’s “long history” of statutory privacy protection, even if the result is to suppress evidence that a jury would find highly relevant.  The unstated but obvious implication is that the legislature may shift the balance between privacy rights and law enforcement expediency if outcomes under the current law are unacceptable.

The majority opinion additionally held that the determination of privacy is “akin” to a conclusion of law and is therefore subject to de novo review, rather than a question of fact subject to deferential review.  While the facts were undisputed here, the Court determined that de novo review is appropriate even where “the facts as found by the trial court are the focus” of the appeal.   To determine whether a conversation is private, the Court utilized a Fourth Amendment analysis: did the recorded person have a reasonable expectation of privacy?   Finding that the defendant had a subjective expectation of privacy in the conversation and this expectation was reasonable under the circumstances, the Court determined that the conversation was private and therefore shielded by statute from being introduced as evidence in a criminal trial.

The concurring Justices would have applied substantial evidence review to the trial court’s decision as the appropriate level of appellate review for decisions on motions to suppress evidence, regardless of the right invoked by the defendant to challenge the evidence.  The concurrence emphasized that the trial judge was in a position to weigh the facts regarding the admissibility of the challenged recording.  However, and for reasons not explained, the three concurring Justices agreed with the majority that the conversation was not private.  Presumably, the trial judge’s “better position to assess” did not help the lower court reach a correct conclusion in this instance.  Or perhaps the Justices decided that when reversing a child sex offender conviction, the Court would be well served by unanimity.

Though announcing an appellate standard of review, today’s decision will be a useful tool for criminal defense attorneys during suppression hearings.  Trial judges can be expected to be attentive audiences for defense arguments in favor of supressing recorded conversations and prosecutors may decide that the risk of an overturned conviction is not worth the benefit of playing the conversation for the jury.

Finally, I recently expressed concern that bad crimes produced bad appellate decisions in the context of personal restraint petitions.  After today’s 9-0 decision to suppress evidence in a trial for allegedly heinous crimes, I am happy to clarify that our courts can enforce due process protections on behalf of unsympathetic defendants on direct review.  At least when they can make clear that it’s the legislature’s fault.