       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
No. 72713-3-1/2


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 Wn.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

Wn.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 Wn.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 Wn.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
No. 72713-3-1/3



the recordings violated the privacy act. Modica, 164 Wn.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

Wn.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 Wn.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 Wn.2d at 89. Dere argues that to the extent the Modica rationale

depends on the "need for jail security," Modica, 164 Wn.2d at 89, his case is
No. 72713-3-1/4


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 Wn. App. 221, 259-60, 268 P.3d 997,

review denied, 174 Wn.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

Wn.2d at 88.
No. 72713-3-1/5



       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 Wn. App. 198, 204, 199 P.3d 1005, review

denied, 166 Wn.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

Wn. 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
No. 72713-3-1/6



interest protected by the Washington Constitution so long as the inmate is

informed of the likelihood of inspection. Archie, 148 Wn. 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 Wn. 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 Wn.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 Wn. 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 Wn. 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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