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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                           No. 73299-4-1
                        Respondent,
                                                           DIVISION ONE

                                                           UNPUBLISHED OPINION
 KEITH THOMAS BLAIR,

                        Appellant.                         FILED: June 6, 2016


          Appelwick, J. — Blair was convicted of conspiracy to possess with intent to

deliver marijuana. The trial court admitted a recording of a telephone call he made

to his wife from the King County Jail. Blair argues that the recording violated the

Washington privacy act, and therefore the trial court erred in admitting it. We

affirm.

                                        FACTS


          In February 2011, Keith Blair was incarcerated in the King County Jail. On

February 19, 2011, Blair called his wife, Rachel Dunham, using the jail telephone

system. Both Blair and Dunham were informed that their conversation would be

recorded. They each pressed a button on theirtelephones to accept this condition.

          King County Sheriff's Office Detective Cary Coblantz was listening to Blair

and Dunham's phone call as it was occurring. He heard Blair tell Dunham to give
No. 73299-4-1/2




$40 worth of "green"1 to someone named Chris "here" at 5:30 p.m. Blair instructed

Dunham to shred it up and put it in a "rubber."       Dunham responded that she

understood, but she was afraid it was a set up. And, she told Blair that they should

not be having this conversation over the telephone. Blair replied, "Yeah, I know."

      After hearing this conversation, Detective Coblantz conducted surveillance

around the jail the next day. He observed a man, later identified as Christopher

Yates, looking around outside the jail and entering the jail shortly before 6:00 p.m.

After Yates entered the jail, Detective Coblantz saw Dunham arrive in a car.

Detective Coblantz impounded Dunham's car and obtained a search warrant for

the car.   When Detective Coblantz executed the search warrant, he found a

package containing a condom filled with marijuana.

       The State charged Blair with conspiracy to possess with intent to deliver

marijuana and attempted introduction of contraband in the second degree. The

trial court admitted the recording of Blair and Dunham's phone call. The juryfound

Blair guilty of conspiracy.

       Blair moved for a new trial or arrest of judgment. The trial court granted his

motion and vacated the juryverdict on the conspiracy charge. The State appealed.

This court reversed the arrest of judgment. State v. Blair, noted at 173 Wn. App.

1026, 2013 WL 791854, at *1. On remand, the trial court sentenced Blair to two

months confinement, to run concurrently with the sentences in two other cases.

Blair appeals.



       1 Detective Coblantz testified that he understood "green" to refer to
marijuana.
No. 73299-4-1/3




                                   DISCUSSION


       Blair asserts that the trial court erred in denying his motion to suppress the

recording of the jail call between him and his wife. He contends that this telephone

call was a private communication within the meaning of the Washington privacy

act, chapter 9.73 RCW, because it was protected by the spousal communications

privilege.

       Before trial, Blair moved to suppress the recorded telephone conversation

between him and Dunham. The trial court ultimately decided to deny Blair's motion

to exclude the telephone call on the grounds that the spousal privilege does not

apply to statements made between spouses in furtherance of a conspiracy. On

appeal, the parties focus their arguments on whether the conversation was private

within the meaning of the privacy act. As such, we do not address the question of

whether a crime-fraud exception to the spousal communications privilege exists.

        Under Washington's privacy act, it is "unlawful ... to intercept, or record

any: . . . [pjrivate communication transmitted by telephone . .. between two or

more individuals . . .without first obtaining the consent of all participants in the

communication." RCW 9.73.030(1). Any information obtained in violation of this

provision is inadmissible in a civil or criminal case. RCW 9.73.050.

       This court applies a four-pronged test to determine whether the privacy act

has been violated.     State v. Christensen, 153 Wn.2d 186, 192, 102 P.3d 789

(2004).      For there to be a violation, "[tjhere must have been (1) a private

communication transmitted by a device, which was (2) intercepted by use of (3) a
No. 73299-4-1/4




device designed to record and/or transmit, (4) without the consent of all parties to

the private communication." id.

       The issue in this case is whether the communication between Blair and

Dunham was private within the meaning of the privacy act.                  Whether a

conversation is private is a question of fact. State v. Clark, 129 Wn.2d 211, 225,

916 P.2d 384 (1996). But, where the facts are undisputed, as they are here, it may

be decided as a question of law. Id, Washington courts have given the term

"private" itsordinary definition:" 'belonging to one's self. . .secret. .. intended only

for the persons involved (a conversation). . . holding a confidential relationship to

something ... a secret message: a private communication . . . secretly: not open

or in public' " State v. Faford. 128 Wn.2d 476, 484, 910 P.2d 447 (1996)

(alterations in original) (quoting Kadoranian v. Bellinaham Police Dep't, 119 Wn.2d
178, 190, 829 P.2d 1061 (1992)).

       To determine whether a particular conversation is private, this court looks

at the subjective intent of the parties to the conversation and whether that intent

reflects a reasonable expectation of privacy. Christensen, 153Wn.2d at 193. This

court assesses several factors to determine the reasonableness of the privacy

expectation.      \±   These include the duration and subject matter of the
communication, the location of the communication and the potential presence of

third parties, and the role of the nonconsenting party. \±

       Applying these factors, the Washington Supreme Court has held that, in the
context of the privacy act, an inmate in a local jail does not have an objectively
reasonable expectation of privacy in telephone callsto his grandmother made from
No. 73299-4-1/5




jail. State v. Modica, 164 Wn.2d 83, 87-88, 186 P.3d 1062 (2008). Modica was

an inmate at the King County Jail. Jd at 86. The King County Jail's recording

system automatically recorded every telephone call made, tracked the numbers

dialed, and had signs near the telephones warning that inmates' calls were being

recorded, id. And, an automated message repeated that warning to both the

inmate and the recipient of the call, id      Modica called his grandmother and

attempted to procure her assistance in ensuring that his wife would not cooperate

with the State or appear in court, id at 87. The State listened to some of their

recorded telephone calls, and the calls were played to the jury during the trial, id.

      The court assumed that Modica and his grandmother intended their

conversations to be private, id at 88. But, the court held that this expectation of

privacy was not reasonable for two reasons, id First, inmates have a reduced
expectation of privacy, id Second, Modica and his grandmother knew that their
calls were being recorded and that someone could listen to them, id
       We also assume that Blair and Dunham had the subjective intent that their

conversation would remain private.2 Blair too was an inmate with a reduced

expectation of privacy. And, both he and Dunham knew that their call was being
recorded and potentially monitored—they each pressed a button to acknowledge
this. Thus, Modica indicates that Blair did not have an objectively reasonable
expectation of privacy in his conversation with Dunham. Therefore, following
Modica, the conversation would not be protected by the privacy act.

       2 Blair and Dunham were both aware that their conversation would be
recorded. But, they used codewords during the conversation, suggesting thatthey
intended the meaning of the telephone call to remain secret.
No. 73299-4-1/6




      However, Blair cites to language in Modica and argues that its holding is

subject to some limitations—including the spousal communication privilege. He

points to the Modica court's caution that it was not holding "that a conversation is

not private simply because the participants know it will or might be recorded or

intercepted." 164 Wn.2d at 88. The court noted,

       Signs or automated recordings that calls may be recorded or
       monitored do not, in themselves, defeat a reasonable expectation of
       privacy. However, because Modica was in jail, because of the need
       for jail security, and because Modica's calls were not to his lawyeror
       otherwise privileged, we conclude he had no reasonable expectation
       of privacy.

id at 89 (emphasis added).          Blair asserts that this language means that

conversations between spouses, which are presumptively privileged, are protected

as private under the privacy act.

       Blair's argument misinterprets the spousal communications privilege. This
privilege is an evidentiary doctrine that provides that neither spouse can testify
about communications made between them during marriage, without the other

spouse's consent. RCW 5.60.060(1). The purpose ofthe privilege is to encourage

the free exchange of confidences between spouses. State v. Thome, 43 Wn.2d
47, 55, 260 P.2d 331 (1953). But, only successful confidential communications

are protected by this privilege. State v. Wilder. 12 Wn. App. 296, 299, 529 P.2d
1109 (1974). If a third party overhears a conversation between spouses, the third

party may testify to that conversation. Thome, 43 Wn.2d at 56.
       Washington courts have addressed the issue of whether spousal
communications when one spouse is in jail are protected by the privilege. State v.
No. 73299-4-1/7




Grove, 65 Wn.2d 525, 527, 398 P.2d 170 (1965); State v. Smyth. 7 Wn. App. 50,

53,499 P.2d 63 (1972). In Grove, the court held that a letter written from an inmate

in jail to his spouse was not protected by the spousal communications privilege.

65 Wn.2d at 527. There, the inmate delivered an unsealed letter to a jail guard,

knowing that the jail rules required it to be censored. Jd. And, the letter was

stamped with the letter C, indicating that it had been censored, id On these facts,

the court held that the letter was neither intended to be confidential nor actually

confidential, and therefore the spousal communications privilege did not protect it.

id,

       Blair asserts that Grove is distinguishable, because it was not a privacy act

case. Instead, he argues that Modica should control. But, Grove did involve the

question whether the spousal privilege protected the communication from

disclosure. 65 Wn.2d at 527. That is the same argument Blair seeks to interject

into the analysis of the privacy act. Modica by contrast involved a conversation

between an inmate and his grandmother—there was no issue of spousal privilege

in that case.


       Here, as with the letter in Grove, Blair knew that the content of the

communication with Dunham was subject to monitoring. Warning was given of

recording. Acceptance of that condition was sought and given by both parties to

the conversation in advance.      The conversation was actually recorded, and

Detective Coblantz listened to it.        It was not a     successful confidential

communication.
No. 73299-4-1/8




       Blair argues that this fact is not significant because all jail calls are recorded,

and Modica says that warnings that all communications may be monitored do not

automatically defeat the expectation of privacy.         We disagree.       First, not all

potentially privileged conversations are recorded in the King County Jail—the

system automatically screens out calls made by inmates to attorney identified

telephone numbers. Thus, the attorney-client privilege would still apply to these

conversations, because they remain confidential. See Morgan v. City of Federal

Way, 166 Wn.2d 747, 757, 213 P.3d 596 (2009) (a communication must be made

in confidence to qualify for the attorney-client privilege).       But, the jail does not

screen out calls from inmates to their spouses, so the spousal communications

privilege would not apply.    Second, Modica recognized that the jail setting was

distinct from the general caution about warning signs. 164 Wn.2d at 89. Third, the

spousal communications privilege explicitly applies only to successful confidential

communications, even in the jail context. Grove, 65 Wn.2d at 527.

       The "or otherwise privileged" phrase in Modica has potentially implicated

one or more recognized privileges in the analysis of what is a reasonable

expectation of privacy under the privacy act.          But, it did not grant absolute

protection for intercepted spousal communications. See Modica, 164 Wn.2d at 89.

The reasonable expectation of privacy test remains applicable. Applying that test

on these facts, we are compelled to conclude that Blair did not have a reasonable

expectation of privacy in the content of the call from the jail.

       Without a reasonable expectation of privacy, the telephone call between

Blair and Dunham cannot be considered private. Only private conversations are


                                                8
No. 73299-4-1/9




protected by the privacy act. RCW 9.73.030(1 )(a). Therefore, the telephone call

was not recorded in violation of the act, and the trial court did not err by denying

Blair's motion to exclude it at trial.

       We affirm.




WE CONCUR:
