      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 Wn. App. 736, 335 P.3d 971

(2014), review granted, 182 Wn.2d 1021 (2015). Following Division One of the

Court of Appeals' holding in City of Seattle v. Koch, 53 Wn. 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 Wn. 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 Wn. 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 Wn.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 Wn.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 Wn. 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:



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