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 BARON DEL ASHLEY JR,                              UNPUBLISHED OPINION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.
No. 81392-7-I/2



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 Wn.2d 709, 733, 132 P.3d 1076 (2006).
       2
         Levy, 156 Wn.2d at 733.
       3
         State v. Schultz, 170 Wn.2d 746, 753, 248 P.3d 484 (2011); State v.
Carneh, 153 Wn.2d 274, 281, 103 P.3d 743 (2004).
       4
         Schultz, 170 Wn.2d at 753.
       5
         State v. Muhammad, 194 Wn.2d 577, 586, 451 P.3d 1060 (2019) (citing
State v. Miles, 160 Wash.2d 236, 244, 156 P.3d 864 (2007)).
       6
         148 Wn. 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 Wn. App. 198, 199 P.3d 1005 (2009).
       8
        Muhammad, 194 Wn.2d at 586 (citing State v. Myrick, 102 Wn.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 Wn.2d at 586 (citing State v. Miles, 160 Wn.2d 236, 244,
156 P.3d 864 (2007); State v. Rife, 133 Wn.2d 140, 150-51, 943 P.2d 266 (1997)).
      10
         State v. Rankin, 151 Wn.2d 689, 695, 92 P.3d 202 (2004).
      11
         Schultz, 170 Wn.2d at 753, 758.
      12
         State v. Thompson, 151 Wn.2d 793, 803, 92 P.3d 228, 233 (2004).
      13
         Archie, 148 Wn. 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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