  _ /_F-1 LE                           ··ilw~ opinion was flied for rttC:lOfd
                                       at ~·o o_ 0m. on .£f              ~ ·
       IN CLERKS OFFICii
1&11181£ COURT, STATE OF WASHINGTON
     DATE    FEB 0 6 2014
)avl~c.y.
   CHiEF             TICE
                            r



       IN THE SUPREME COURT OF THE STATE OF WASHINGTON



  STATE OF WASHINGTON,                                )
                                                      )       No. 88083-2
                                Respondent,           )
                                                      )
            v.                                        )       EnBanc
                                                      )
  WILLIAM JOHN KIPP, JR.,                             )
                                                      )
                                Petitioner.           )
                                                      )       Filed             FEB 0 6 2014


            C. JOHNSON, J.-The central issue in this case is whether the trial court

   erred in admitting into evidence a secretly recorded conversation between William

  Kipp and his brother-in-law in violation of Washington's privacy act, chapter 9.73

   RCW. Kipp was convicted of two counts of rape of a child and one count of child

   molestation in the second degree. Part of the evidence presented at trial was a

   recording of a conversation made without Kipp's knowledge or consent. Before

   trial, Kipp moved to suppress the recording, relying on the privacy act. The trial

   court ruled that the recording was not a private conversation and, therefore, not

   subject to suppression. A jury found Kipp guilty and he appealed. In a split

   decision, the Court of Appeals affirmed, holding that substantial evidence

   supported the trial court's ruling. In reaching its conclusion, the Court of Appeals
State v. Kipp, No . .88083-2 .·


rejected this court's precedent under State v. Clark, 129 Wn.2d 211, 916 P.2d 384

( 1996), which holds that when facts are undisputed, the question of whether a

particular communication is private is a matter of law reviewed de novo. The Court

of Appeals utilized an abuse of discretion standard on review. Kipp petitioned this

court for diseretionary review, which we granted. State v. Kipp, 171 Wn. App. 14,

286 P.3d 68 (2012), review granted, 176 Wn.2d 1024, 301 P.3d 1047 (2013). We

hold that for purposes of the privacy act, when facts are undisputed, the question of

whether a partkular communication is private is a matter of law reviewed de novo.

In this case, Kipp's conversation with his brother-in-law was private and therefore

should have been suppressed. We reverse and remand.

                                  FACTS AND PROCEDURAL HISTORY

         William Kipp was accused of sexually assaulting two of his nieces. He was

confronted by their father, Kipp's brother-in-law, who secretly recorded a

conversation onto a cassette tape. This conversation was reported to police. The

State charged Kipp, for the acts against one of his nieces, with two counts of

 ~econd   degree rape of a child and one count of second degree child molestation.

         Before trial, Kipp moved to suppress the recorded conversation under the

privacy act, chapter 9.73 RCW. The trial court declined to conduct an evidentiary




                                               2
State v. Kipp, No. 88083-2


hearing and instead accepted the facts put forth by the parties. 1 The trial court also

listened to the recording~ which was a little over 10 minutes in duration, and

accepted the following undisputed facts: (1) Kipp did not know he was being

recorded, (2) the taped conversation is about 10 minutes long, (3) the conversation

took place in the upstairs kitchen of a private home, (4) the conversation was

between Kipp and his brother-in-law, (5) the topic of conversation was the

accusation that Kipp molested Joseph Tan's daughters, and (6) Kipp suggested

toward the end of the conversation that they talk about it further at a later time.

Based on these facts, the trial court concluded that the conversation between Kipp

and his brother-in-law was not a private conversation and therefore not subject to

suppression under the privacy act. The recorded conversation was admitted into

evidence at trial, and the court reporter transcribed the recording to the best of her

abilities. The court revisited the suppression motion after the State substituted the

original recording during trial. The court reaffirmed its earlier ruling. A jury found

Kipp guilty on all counts.

        Kipp appealed. The Court of Appeals affirmed in a split decision, holding

that sufficient evidence supported the trial court's decision that the conversation



        1
         Although Kipp assigned error to the trial court's failure to conduct an evidentiary
hearing in its briefing to the Court of Appeals, this issue is not before us on review. See Pet. for
Review.


                                                  3
State v. Kipp, No. 88083-2


was not private. We granted Kipp's petition for discretionary review. The

American Civil Liberties Union of Washington filed a brief in support ofKipp's

argument.

                                      ANALYSIS

       The privacy act prohibits recording of any "[p ]rivate conversation, by any

device electronic or otherwise designed to record or transmit such conversation

regardless how the device is powered or actuated without first obtaining the

consent of all the persons engaged in the conversation." RCW 9.73.030(1)(b).

Evidence obtained in violation of the act is inadmissible for any purpose at trial.

RCW 9.73.050. It is undisputed that the conversation was recorded without Kipp's

permission. The only issue, then, is whether the conversation between Kipp and his

brother-in-law was "private."

       Generally, the privacy act is implicated when one party records a

conversation without the other party's consent. Washington State's privacy act is

considered one of the most restrictive in the nation. State v. Townsend, 147 Wn.2d

666, 672, 57 P.3d 255 (2002) .

      . "Our state has a long history of statutory protection of private

communications and conversations." Clark, 129 Wn.2d at 222.

        Since 1909, the privacy act has protected sealed messages, letters, and
        telegrams from being opened or read by someone other than the
        intended recipient. RCW 9.73.010-.020. In 1967, the legislature

                                           4
State v. Kipp, No. 88083·-2


       amended the act in order to keep pace with the changing nature of
       electronic conimunications and in recognition of the fact that there
       was no law that prevented eavesdropping.

State v. Christensen, 153     Wn~2d   186, 198, 102 P.3d 789 (2004). "In 1977, the

[l]egislature permitted electronic recording of conversations with one party's

consent where law enforcement obtained an order from a judge or magistrate

fi.nding probable cause to believe that the nonconsenting party committed, was

engaged in, or is about to commit a felony." Clark, 129 Wn.2d at 222-23 (citing

RCW 9.73.090(2)). Again, in 1989, the legislature broadened the ability of law

enforcement officers to record private conversations and communications

concerning drug felonies. See RCW 9.73.090(5); Clark, 129 Wn.2d at 223.

        T'he federal government and 49 states have enacted privacy or

eavesdropping statutes. Washington is 1 of only 11 states that require that all

parties to a private communication consent to its recording and disclosure. This

"all.-party consent" rule adds an additional layer of protection to the private

conversations of Washington's     residents~   Since 1967, the legislature has twice

1Tiade amendments to the act without amending the "all-party consent" provision.

Instead, the Washington statute continues to tip the balance in favor of individual

privacy at the expense of law enforcement's ability to obtain information in

criminal proceedings. Christensen, 153 Wn.2d at 198-99.




                                               5
State v. Kipp, _No. 88083-2


       Washington's privacy act and "all-party consent" rule provide more

protection than both the state and federal constitutions. Under Washington

Constitution article I, section 7, when one participant in a conversation has

consented to the recording of the conversation, the state constitution is not

violated. 2 State v. Corliss, 123 Wn.2d 656, 663-64, 870 P.2d 317 (1994)

(concluding that petitioner's state constitutional privacy rights were not violated

when an informant consented to allow police officers to overhear his conversations

with petitioner). S1mllarlY,recording a conversation with one party's consent does

not violate the Fourth Amendment to the United States Constitution. United States

v. Caceres, 440 U.S. 741, 750, 99 S. Ct. 1465, 59 L. Ed. 2d 733 (1979).

       In this ease, we must decide whether this state's privacy act was violated

when Kipp's brother-in-law recorded their conversation in the kitchen of a private

residence without Kipp's permission.

        1.   STANDARD OF REVIEW

        We        r~1ust   first determine what standard of review applies to a trial court's

ruling on a motiqn to suppress evidence under the privacy act. The protections of
             ,.


the privacy act apply to private communications or conversations. Clark, 129

Wn.2d at 224 (citing Kadoranian v. Bellingham Police Dep 't, 119 Wn.2d 178,

-~-------:---------------




        Article 'I, section 7 provides that "[n]o person shall be disturbed in his private affairs, or
        2.
his home invaded, without authority oflaw."
 '        .  .      ..



                                                     6
State v. Kipp, No. 88083-2
           .             .




189, 829 P.2d 1061 (1992)). This court has repeatedly observed that "[w]hether a

particular conversation is private is a question of fact, but where the facts are

undisputed and reasonable minds could not differ, the issue may be determined as

a matter of law .." Clark, 129 Wn.2d at 225 (citing Kadoranian, 119 Wn.2d at 190);

seeLewis·v: Dep''t ofLicensing, 157 Wn.2d 446,458, 139 P.3d 1078 (2006);

Christensen, 153 Wn.2d at 192; Townsend, 147 Wn.2d at 673. Questions of law

are reviewed de novo. State v. Jim, 173 Wn.2d 672, 678, 273 P.3d 434 (2012).

       vVhile acknowledging this "oft-cited" precedent, the Court of Appeals in this

case concluded that "this is the wrong standard" and applied a substantial evidence

standard. Kipp, 171 Wn. App. at 23. In doing so, it suggested that we erred in

Clark by importing a civil standard of review for summary judgment from

Kadoranian into a criminal case. The Court of Appeals concluded that "the

Kadoranian standard as applied to criminal cases is an 'anomaly in Washington

law' that should be discarded." Kipp, 171 Wn. App. at 25. 3




       3
           The concurrence and Court of Appeals suggest that there is no procedure analogous to
suliii:nary judgment in criminal cases. Concurrence at 4; Kipp, 171 Wn. App. at 24-25. However,
this eourt in State v. Knapstad, 107 Wn.2d 346, 350, 352-53, 729 P.2d 48 (1986), rejected the
argument that the Superior Court Criminal Rules do not provide for a summary judgment type
proeedure and held that "when the material facts of a prosecution are not in dispute, the case is in
the posture of an isolated and determinative issue of law as to whether the facts establish a prima
facie case of guilt." Under Knapstad, there is a summary-judgment-like standard ofreview in
criminal cases.


                                                 7
State v. Kipp, No. 88083-2


       But we have said that before an established rule may be abandoned it must

be shown to be both incorrect and harmful. State v. Abdulle, 174 Wn.2d 411, 415,

275 P ..3d 1113 (2012). 4 First, the State fails to show that the rule is incorrect. The

general rule is that "where competing documentary evidence must be weighed and

issues of credibility resolved, the substantial evidence standard is appropriate."

Dolan v. Kz'ng County, 172 Wn.2d 299, 310, 258 P.3d 20 (2011) (citing In re

Marriage of Rideout, 150 Wn.2d 337, 351, 77 P.3d 1174 (2003)). In contrast,

              "whei"e ... the trial court has not seen nor heard
              testimony requiring it to assess the credibility or
              competency of witnesses, and to weigh the evidence, nor
              reconcile conflicting evidence, then on appeal a court of
              review stands in the same position as the trial court in
              looking at the facts of the case and should review the
              record de novo."

Pr~gressiveAnimal      Welfare_Soc'yv. Univ. ofWash., 125 Wn.2d243, 252,884

P.2d 592 (1994) (quoting Smith v. Skagit County, 75 Wn.2d 715, 718,453 P.2d

832 (1969)); see also State v. Rowe, 93 Wn.2d 277, 280, 609 P.2d 1348 (1980)

(where the trial court's findings stem exclusively from the stipulation and attached

standards rather than from the testimony of witnesses, this court is not bound by




       4
         Here, the Court of Appeals failed to engage in this analysis. This is perhaps because
neither party argued in its briefing below that the established standard of review should be
abandoned. See Br. ofResp't at 21 n.5 (noting that "Washington Courts have even explained that
when the facts are not meaningfully in dispute, the issue of whether a conversation is private
may even be decided as a question oflav,r" (citing Clark, 129 Wn.2d at 225)).


                                              8
       State v. Kipp, No. 88083-2


       the findings). The rule that undisputed evidence may be decided as a matter of law

       and reviewed de novo is entirely consistent with this general rule.

              Moreover, the State does not present any argument that this rule is harmful.

       Although de novo review of a ruling on a suppression motion is arguably harmful

       bt~cause   it wastes judicial resources, this argument is not persuasive because Clark

       limited de n(wo review to a select number of cases where the facts are undisputed.

,t;·   Clark, 129 Wn.2d at 225. Thus, contrary to what the State and Court of Appeals

       contend, this case is ui1like State v. Hill, 123 Wn.2d 641, 645, 870 P.2d 313 (1994).

       T'here, we rejected a line of cases holding that the fundamental constitutional rights

       involved in a suppression motion require the appellate court to undertake an

       indepen4ent evaluation of the evidence in all cases. Because Clark limits review to

       sele~t cm~es,    it is consistent with Hill. A departure from the settled standard of

       review is therefore unwarranted and the Court of Appeals' suggestion that all

       suppression motions should be reviewed for substantial evidence is rejected.

              In this   case~   the trial court accepted the facts as represented by Kipp and his

       counsel and .therefore made no credibility or other determinations for which its

       firsthand observation of the proceedings better positioned it to make. Although the

       trial court listened to the recording, there is no indication that the court did so in




                                                       9
     State v:Kipp, No. 88083-2


     order to resolve factual disputes. Because the facts are undisputed, we review de

     novo whether the conversation was private. 5

             In addition, since whether the "facts" are encompassed by the statutory

     proteetions presents a question regarding statutory interpretation, de novo review is

     the appropriate standard of review. This is true whether as here, the facts are

     undisputed, or whether review of the facts as found by the trial court are the focus.

i;   The determination of privacy is more akin to reviewing a conclusion of law than a

     fact.

             2. "PRIVATE"

             Since the act is implicated by the unconsented recording, the statutory

     analysis favors privacy unless it is shown differently. While the term "private" is

     not defined il~ the act, it is to be given its ordinary and usual meaning: "'belonging

     to oneself ... 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.'"

     WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1804-05 (1969), quoted in


             s This   holding is consistent with similar federal cases. For example, in Ornelas v. United
     States, 517 U.S. 690,699, 116 S. Ct. 1657, 134 L. Ed. 2d 911 (1996), the Supreme Court held
     that while ·a reviewing court should review findings of historical fact for clear error and give
     weight to the inferences the trial judge drew from those facts, "as a general matter determinations
     ofreasonable suspicion and prob.able cause should be reviewed de novo on appeal." The Court
     reascii1ed th:it not having de novo review would lead to inconsistent results and that independent
     review is necessary if appellate courts are to maintain control of, and to clarify, legal principles.


                                                      10
     State v. Kipp, No. 88083-2


     Clark, 129 \Vn.2d at 224··25. A communication is private (1) when parties manifest

     a subjective intention that it be private and (2) where that expectation is

     reasonable. Townsend, 14 7 Wn.2d at 673 .

             . Factors bearing on the reasonableness of the privacy expectation include the

     duration and sttbj ect matter of the communication, the location of the

     cmnmunication and the presence or potential presence of third parties, and the role

\'   of the non consenting party and his or her relationship to the consenting party.

     Ultimately, the intent or reasonable expectations of the participants as manifested

     by the facts and circumstances of each case controls as to whether a conversation is

     private. Clark, 129 Wn.2d at 224-27. The reasonable expectation standard calls for

     acase-by-case consideration of all the facts. State v. F'aford, 128 Wn.2d 476, 484,

     910 P.2d 447 (1996).

              Here, Kipp manifested a subjective intention that the conversation be

     private. We have found subjective intent that a conversation be private even though

     tl~e   party does not explicitly state such an intention. See, e.g., Christensen, 153

     Wn.2d at 193 (concluding that the defendant subjectively intended for the phone

     conversation to be private by asking to speak to his girl friend and that his girl

     friend manifested such an intent by taking the phone into her bedroom and closing

     the door). Here, as Kipp was going into the kitchen, another family member left,

     thereby evidencing his subjective intent that the conversation be between only him

                                                   11
State v. Kipp, No. 88083-2


and his brother-in-law. The State argues that Kipp's statement toward the end of

the conversation shows that he did not intend that the conversation be private.

Specifically, the.State iwtes that Kipp said, "[L]ike I say, when we get a chance,

just you and t we will go somewhere and we'll talk, try to ... understand

everything." 2 Verbatim Report of Proceedings (July 28, 2009) at 213. According

to the State, this demonstrates that Kipp did not believe that the conversation was

.private. However, this reasoning is flawed because the statement occurred at the

end of the conversation and demonstrates only that he desired to continue

discussing the matter privately in the future. Thus, we conclude he subjectively

intended that the conversation be private.

       Applying the Clark factors, we conclude Kipp' s expectation of privacy was

reasonable. When considering the first factor, duration and subject matter of the

conversation, the parties agree that the 10-minute duration suggests the

conversation was private. With regard to the subject matter of the conversation, we

have held that "inconsequential, nonincriminating" conversations generally lack

the expectation of privacy necessary to be protected under the act. Faford, 128

Wn.2d at 484.

        In contrast, an incriminating statement of a serious subject matter is the type

 of conversation protected under the act. In Faford, we held that defendants'

 neighbor violated the privacy act by eavesdropping on cordless telephone

                                             12
State v. Kipp, No. 88083-2


conversations and that any evidence gained through this violation was

inadmissible. Although the recorded conversations concerned illegal activity-a
    '            .


marijuana growing operation in the defendants' home-we held that the

defendants had a reasonable expectation of privacy and that both the recordings

and any information gathered from the illegal communications should have been

suppressed. Faford, 128 Wn.2d at 488-89. 6

         Conversely in Clark, we held that 16 conversations where the defendants

approached a stranger for brief, routine conversations on the street about drugs

were not private. We limited our holding to those 16 conversations, noting that

there are many illegal transactions that may involve private conversations. Clark,

129 Wn.2d at 231.

         Here, the State contends that a person who confesses to child molestation

should expect this information to be reported to the authorities, and therefore it is

unreasonable to expect the conversation to remain private. While this may be true,

it has little, relevance to whether the recording itself is proper. As Kipp points out,

accepting the State's argument would mean that a confession of child molestation



,   __________
             6
         While the fruit of the poisonous tree doctrine generally does not apply to private
         ,
searches, Washington's privacy act is applied broadly as to require exclusion of any "evidence
exclusively and din~.ctly f1owing from a privacy act violation." J·iaford, 128 Wn.2d at 489. Any
other result would render any privacy protection illusory and meaningless. Faford, 128 Wn.2d at
489.


                                               13
    State v. Kipp, No. 88083-2


    or any other crime is never subject to a reasonable expectation of privacy. This is

    in.direct opposition J,o what we said in Clark and Faford. Instead, the subject
     .   .   .   .   . ·.    .   '    .         .   .
    matter of the conversation in this case was not one that is normally intended to be

    ptiblic, demonstrating Kipp's reasonable expectation of privacy.

              The second factor-location of the conversation and presence or potential

    presence of a third party-also weighs in favor of concluding that the conversation

~   was private because it took place \Vhile Kipp and his brother-in-law were alone in a

    private residence. A private horne is normally afforded maximum privacy

    protectio~.          State v. Hastings, 119 Wn.2d 229, 233, 830 P.2d 658 (1992). The

    undisputed facts establish that the conversation took place in the kitchen of a

    private resid.ence. Although the State contends that a kitchen is a common area

    subject to~             le~ser        expectation of privacy, the record shows that the men were alone

    and that Kipp'.s brother-in-law asked his son to leave the room so that they could

    ~alk.    It is difficult to separate rooms in a house and label some "private" and some

    not. _Both the trial court and Court of Appeals attempt to generalize that all kitchens

    are common areas with increased potential for the presence of third parties. But our

    determination as to whether a conversation is private requires a case-by-case

    analy~is.        vVhether other persons were present is more relevant. Here, based on the

    location of the conversation and the absence of a third party, it was reasonable for

    Kipp to believe the conversation was private.
      .              ~         . .,         .




                                                                14
State v. Kipp, No. 88083-2


       Finally) Kipp's role as the nonconsenting party and his relationship to his

brother-in-law further demonstrate that Kipp had a reasonable expectation of

privacy. Generally, two people in a conversation hold a reasonable belief that one

of them is not recording the conversation. But, in evaluating this factor, we have

found that the nonconsenting parties' willingness to impart the information to a

stranger evidences that the communication is not private. Clark, 129 Wn.2d at 226-

27 (citing Kadoranian, 119 Wn.2d at 190). We have also repeatedly held that

conversations with police officers are not protected under the act. See Lewis, 157

Wn.2d at 460. The parties in this case are not strangers or public officials; they are

family. And contrary to what the State contends, the nature of the relationship

between ~he patties is not altered by the subject matter of the conversation.

Focusing on Kipp's role as "the accused" eviscerates the privacy act's protections

for any person accused of a crime. Under this rationale, the actual relationship

between the parties would be irrelevant. Ifwe accepted the State's argument, this

factor "would always weigh against any accused person who makes an

incriminating statement, yet incriminating statements are the very type of

communication$ usually triggering the privacy act's protections." Kipp, 171 Wn.

App ..at 41-42 (Van Deren, J., dissenting).

        We conclude Kipp had both a subjective and reasonable expectation of

privacy as he was speaking in private with his brother-in-law about a very sensitive

                                          15
State v. Kipp, No. 88083-2


matter. 7 Because the recording violated the privacy act, the trial court should have

suppressed it. 8




       7
         While the recorded conversation violated the privacy act, the State could have solicited
testimony from Kipp's brother-in-law regarding Kipp's alleged confession. Kipp's statements
would not have been hearsay. ER 801(d)(2)(i) (A statement is not hearsay ifthe statement is
offered against a party and is the party's own statement.).

        8
          Generally, the admission of evidence in violation of the privacy act is subject to a
harmless error analysis. Christensen, 153 Wn.2d at 200 ("Failure to suppress evidence obtained
in violation of the act is prejudicial unless, within reasonable probability, the erroneous
admission of the evidence did not materially affect the outcome of the trial." (citing State v.
Porter, 98 Wn. App. 631, 638, 990 P.2d 460 (1999))). Here, the State did not argue that the error
was harmless so we need not engage in this analysis.


                                                16
State v. Kipp, No. 88083-2


                                   CONCLUSION

       We reverse the conviction and remand for further proceedings.




WE CONCUR:




                                         17
State v. Kipp, No. 88083-2
Fairhurst, J., concurring




                                  No. 88083-2



      FAIRHURST, J. (concurring)-! agree with the majority's result that the

recorded telephone conversation between William John Kipp Jr. and his brother-in-

law was private under Washington's privacy act, chapter 9.73 RCW, and that the

conversation should have been suppressed. Majority at 2. I disagree with the

majority's holding that de novo review is appropriate when determining whether a

particular communication is private in a motion to suppress.       I d. at 2, 9-10.

Substantial evidence is the appropriate standard as the Court of Appeals recognized

in this case, State v. Kipp, 171 Wn. App. 14, 24-25, 286 P.3d 68 (2012), review

granted, 176 Wn.2d 1024, 301 P.3d 1047 (2013), and we recognized in State v.

Hill, 123 Wn.2d 641, 645-47, 870 P.2d 313 (1994), and most recently in State v.

Schultz, 170 Wn.2d 746, 753, 248 P.3d 484 (2011).

      The majority, relying on State v. Clark, 129 Wn.2d 211, 225, 916 P.2d 384

(1996), reaffirms de novo review. Majority at 7 (When facts are undisputed, the

question of whether a particular communication is private is a matter of law
                                         1
State v. Kipp, No. 88083-2
Fairhurst, J., concurring


reviewed de novo. (citing Kadaran ian v. Bellingham Police Dep 't, 119 Wn.2d 178,

190, 829 P.2d 1061 (1992))).        Although this language has also been cited in

subsequent cases, see majority at 7, the standard of review was not at issue in those

cases.


         The Court of Appeals correctly recognized that Clark should not have relied

on Kadoranian because it was a civil case involving a summary judgment motion.

Kadoranian filed a civil class action lawsuit under the privacy act claiming the

police department inadvertently intercepted one of her private conversations. 119

Wn.2d at 181-83. Applying the civil summary judgment standard of review, that is

the issue could be determined as a matter of law because the facts were undisputed

and "reasonable minds could not differ on the subject," id. at 190, we affirmed the

trial court's summary judgment that it was not a private conversation, id. at 190-

92.


         Further, in Hill, decided two years before Clark, we specifically rejected and

overruled de novo review of criminal motions to suppress evidence. In Hill, we

considered a line of cases that imposed a duty on reviewing courts "to undertake an

independent evaluation" when reviewing factual findings in a motion to suppress.

123 Wn.2d at 645.        In Hill, we overruled the de novo standard of review in

criminal cases as "an anomaly in Washington law" after determining that there was

                                            2
State v. Kipp, No. 88083-2
Fairhurst, J., concurring


no reason to make a distinction between constitutional claims such as those

involved in a suppression hearing. Id. We recognized that "[t]he trier of fact is in

a better position to assess the credibility of witnesses, take evidence, and observe

the demeanor of those testifying. This remains true regardless of the nature of the

rights involved." I d. at 646-4 7 (citations omitted).   We said a reviewing court

should not conduct an independent evaluation of the facts in a motion to suppress,

but rather should review only those facts to which error has been assigned. Id. at

64 7.   "This strikes the proper balance between protecting the rights of the

defendant, constitutional or otherwise, and according deference to the factual

determinations of the actual trier of fact." I d.

        Clark does not mention or overrule Hill. There is no discussion in Clark of

Hill being incorrect or harmful. As recently as 2011, we stated in criminal cases

that the reviewing court determines whether findings of fact on a motion to

suppress are supported by substantial evidence and whether those findings support

the trial court's conclusions of law. See Schultz, 170 Wn.2d at 753; see also State

v. Winterstein, 167 Wn.2d 620, 628, 220 P.3d 1226 (2009). "'Substantial evidence

exists where there is a sufficient quantity of evidence in the record to persuade a

fair-minded, rational person of the truth of the finding."' Schultz, 170 Wn.2d at

753 (quoting Hill, 123 Wn.2d at 644).


                                             3
State v. Kipp, No. 88083-2
Fairhurst, J., concurring


       The substantial evidence standard is the appropriate standard of review when

reviewing a motion to suppress. The trier of fact is in a better position to assess.

Hill, 123 Wn.2d at 646. Here, the trial judge listened to the recording and then

heard argument. 1 Verbatim Report of Proceedings (July 21, 2009), at 58, 62-64.

In her ruling, the trial judge discussed her impressions of the tape, accepted

defense counsel's description of the events as would have been testified to by the

defendant, and described language she heard on the tape that was not covered by

the factors but which she thought reflected the expectation and intent of the parties.

I d.


       The Court of Appeals correctly recognized that summary judgment in civil

cases does not have an equivalent procedure in criminal law. The majority cites

State v. Knapstad, 107 Wn.2d 356, 350, 352-53, 729 P.2d 48 (1986), as proof of a

"summary-judgment-like standard of review in criminal cases." Majority at 7 n.3.

While it uses language that sounds like that applied in a civil summary judgment

motion, a Knapstad motion is a specific pretrial criminal motion brought by the

defendant alleging insufficient evidence. If a Knapstad motion is denied, it cannot

be appealed. Also, only the State can appeal when a Knapstad motion is granted,

and the State may refile the charges because a Knapstad dismissal is without

prejudice. See State v. Freigang, 115 Wn. App. 496, 502, 61 P.3d 343 (2002).

                                           4
State v. Kipp, No. 88083-2
Fairhurst, J., concurring


      The substantial evidence standard of review does not diminish the reviewing

court's ability to address errors.   When considering a motion to suppress, the

reviewing court will ferret out erroneous conclusions of law that are unsupported

by the findings. State v. Lohr, 164 Wn. App. 414, 423-24, 263 P.3d 1287 (2011)

(court erred in concluding defendant's purse was a household item and therefore

subject to search); State v. Jesson, 142 Wn. App. 852, 857-59, 177 P.3d 139 (2008)

(court erred in concluding defendant's gated, secluded property was impliedly

open to the public and therefore police officer had implied consent to enter).

      The Court of Appeals correctly adhered to the principles enunciated in Hill

when applying the substantial evidence standard to review the trial court's findings

in the motion to suppress. Kipp, 171 Wn. App. at 18. We should do the same.




                                          5
State v. Kipp, No. 88083-2
Fairhurst, J., concurring




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