Opinion
No. 53464-9-II
10-19-2021
STATE of Washington, Respondent, v. Mehmet BILGI, Appellant.
Lenell Rae Nussbaum, Law Office of Lenell Nussbaum, PLLC, 2125 Western Ave. Ste. 330, Seattle, WA, 98121-3573, for Appellant. Britta Ann Halverson, Pierce County Prosecuting Attorney, 930 Tacoma Ave. S Rm. 946, Tacoma, WA, 98402-2171, for Respondent.
Lenell Rae Nussbaum, Law Office of Lenell Nussbaum, PLLC, 2125 Western Ave. Ste. 330, Seattle, WA, 98121-3573, for Appellant.
Britta Ann Halverson, Pierce County Prosecuting Attorney, 930 Tacoma Ave. S Rm. 946, Tacoma, WA, 98402-2171, for Respondent.
PUBLISHED IN PART OPINION
Cruser, J.
¶ 1 Mehmet Bilgi was convicted of attempted rape of a child in the second degree and communication with a minor for immoral purposes. Bilgi appeals his convictions, arguing that (1) the trial court erred when it denied his motion to suppress text messages and e-mails obtained while law enforcement was violating Washington's privacy act, chapter 9.73 RCW, (2) the trial court erred when it denied his motions to compel discovery related to the technology used by law enforcement, and (3) the prosecuting attorney committed misconduct in closing argument.
¶ 2 In the published portion of this opinion, we hold that (1) the trial court did not err when it denied Bilgi's motion to suppress because law enforcement did not intercept Bilgi's text messages or e-mails in violation of the privacy act. In the unpublished portion of this opinion, we hold that (2) the trial court did not abuse its discretion when it denied Bilgi's motions to compel discovery and that (3) the prosecuting attorney did not commit reversible misconduct. Therefore, we affirm Bilgi's convictions.
FACTS
I. FACTS UNDERLYING THE CHARGES
¶ 3 Detective Kristl Pohl, working with Washington State Patrol's (WSP) Missing and Exploited Children's Task Force (MECTF), posted an advertisement on Doublelist, a website similar to Craigslist where people advertise for sexual encounters, as part of MECTF's thirteenth "Net Nanny" operation. 9 Verbatim Report of Proceedings (VRP) at 905. The advertisement asked, "where is the hook up spots in Puyallup that a yung [sic] hot guy could go?" Clerk's Papers (CP) at 156. It included a picture of a young adult male with a Snapchat filter that made his face resemble a "koala bear." 11 VRP at 1190. When Pohl answered messages directed to this advertisement, she assumed the persona of a 13-year-old boy named "Jake." 9 VRP at 934.
Detective Sergeant Carlos Rodriguez, the supervisor of MECTF, defined the Net Nanny operation as "a proactive undercover operation ... looking for people who are offering children for sex, or any type of exploitation, or people seeking to have sex with kids, or sexually exploited children." 9 VRP at 835.
Pohl did not ever use a name to identify herself when messaging Bilgi, but the State refers to the fictitious child as "Jake" throughout the proceedings.
¶ 4 Bilgi responded to Pohl's advertisement with an e-mail message that said, "hey did you find your guy or spot yet ? hit me up and we can have some fun together." Ex. 2 at 1. He attached a picture of an erect penis. Bilgi soon mentioned the possibility of meeting people at "neighborhood dive bars," to which Jake responded that he was not old enough to go to bars. Id. When Bilgi asked how old Jake was, Pohl said, "13." Id. at 3. After initially expressing surprise, Bilgi responded, "so what do you wanna [sic] do?" Id.
Pohl inadvertently responded to Bilgi using the e-mail address mamaKK360@gmail.com, an address that she typically uses when adopting the persona of a mother, not a teenage boy. However, Bilgi did not "express any concern" about the e-mail name. 9 VRP at 920.
¶ 5 After about a week of sending e-mail messages, Bilgi and Pohl switched to communicating through text messages. Bilgi texted using Google Voice, "a voiceover internet number" that was not connected to his cellular phone. 9 VRP at 931. He told Jake that he was 27 years old. Bilgi and Jake communicated periodically over the next month, with most of their conversations involving sexual content. Eventually, Bilgi arranged to meet Jake at a park.
Bilgi was actually 35 years old.
¶ 6 Prior to arriving at the park, Bilgi texted a picture of his face and a description of his car. When Bilgi arrived, Pohl texted, "can you roll down ur [sic] windows and wave?" CP at 318. Officers arrested Bilgi after they saw him roll down his window and wave. Officers later recovered condoms and personal lubricant from Bilgi's car.
¶ 7 The State charged Bilgi with attempted rape of a child in the second degree and communication with a minor for immoral purposes.
II. PROCEDURAL HISTORY
MOTIONS TO SUPPRESS COMMUNICATIONS
¶ 8 During an interview with defense counsel, Detective Pohl disclosed that she used a software named Callyo to send text messages to Bilgi from her computer. Pohl explained that Callyo allows MECTF to sort messages by the phone number they are using and by the suspects’ phone numbers. It also allows the detectives to download all of the messages associated with a particular suspect's phone number in a zip file and to open those messages in a spreadsheet.
¶ 9 After this interview, Bilgi moved to suppress "all evidence relating to the e[-]mail and text communications of the defendant, including oral testimony about them," under the privacy act. Id. at 488. Bilgi argued that his text messages were unlawfully "intercepted and recorded by law enforcement using specialized computer surveillance software called ‘Callyo.’ " Id. at 490. The State responded, "The messages were not intercepted at all. They were sent by the defendant to a boy he knew as ‘Jake’ at a specific phone number. They were received by ‘Jake’ at that same number. They were opened and read by ‘Jake.’ " Supp. CP at 1240.
¶ 10 At the CrR 3.6 hearing, Detective Sergeant Rodriguez testified that he controls the Callyo account for the Net Nanny operations. He explained that Callyo, like Google Hangouts, generates phone numbers for the officers to use to communicate with suspects, but Callyo is a preferable program because to document communications with Google Hangouts, the officers "would have to take screen shots ... as [they] scrolled through [their] computer screen ... and it was very tedious." 4 VRP (May 21, 2019) at 233. With Callyo, they can download the entire conversation by clicking a button.
¶ 11 When he first set up the Callyo account, Rodriguez assigned separate usernames to individuals working on the operation, but now he uses one login and password for the entire operation because multiple logins "just isn't efficient." Id. at 270. Now, if one of the other officers asks Rodriguez to review their chats, he "can either just move over to their seat and look, or [he] can do it right from [his] computer." Id. at 255. The shared login also makes it easier for the officers to take over for one another. Multiple people can be logged in under the same username at the same time, and anybody who logs in has the ability to access and participate in any of the chats. Rodriguez testified that members of MECTF have "the explicit authority" to read messages sent through Callyo. Id. at 268.
¶ 12 Pohl similarly testified that although she was the only person who messaged Bilgi, "anybody that has the log in and the password to the account could view it." Id. at 313. She testified that she sent all of her text messages to Bilgi through the Callyo program, and that even if it was not specifically discussed, other members of the operation had her permission to access those messages.
¶ 13 On the day of Bilgi's arrest, Detective John Garden was performing surveillance. Garden testified that he was logged in to Callyo on his iPad, observing the communications between Pohl and Bilgi as they were occurring. Detective Kathryn Chovil-Peterson, who also performed surveillance for Bilgi's arrest, testified that she was "capable of" accessing the chats while she was waiting for Bilgi to arrive at the arrest location, but she "[did not] recall ... in Mr. Bilgi's case if [she] was monitoring the conversations or not." Id. at 301-02. Pohl was also logged in to Callyo at headquarters, and "[s]omebody in the room would have been acting as the incident commander and would have been the one responsible for passing that information onto the surveillance units." Id. at 319.
¶ 14 Bilgi contended that Garden's admitted viewing of the messages while he was performing surveillance constituted a privacy act violation because Garden was not a party to the conversation and he did not have court authorization to view the messages in real time. Bilgi argued, "It is not reasonable for a sender of a communication to expect that that private communication will go to a surveillance software ... where it will be stored and then transmitted to multiple people ... in different locations, and who are not participating in the conversation in any way." Id. at 256-57. The State responded that "once law enforcement lawfully possesses the information, that's the end of the inquiry. ... It's delivered to one account, which is accessible by law enforcement as a whole because Carlos Rodriguez gave them the authority to do it." Id. at 367-68.
¶ 15 At the conclusion of the hearing, the trial court found that the communications between Bilgi and Pohl were private and that they were recorded on Pohl's computer, which is an electronic device. It also found that Bilgi impliedly consented to the recording of his communications on Pohl's device.
¶ 16 The trial court noted that MECTF used a software that "allowed officers to communicate with multiple subjects at the same time, using the same undercover telephone number for outgoing messages, and then generate a report containing all the messages from a single incoming number," but it found that Bilgi's "consent is not based in any way on the nature of the software used by the recipient." CP at 1202. It further found that both Rodriguez and Pohl consented to other members of the Net Nanny operation reading their text messages.
¶ 17 The trial court rejected Bilgi's argument that his "consent was limited to the intended recipient, ‘Jake’ (Det. Pohl), such that any other officer who read his messages ‘intercepted’ them." Id. at 1203. "It is well-settled in this state that the sender of a text message runs the risk the recipient will share the content of that message with one or multiple other persons." Id. Therefore, "Det. Pohl did not violate the Privacy Act by allowing other members of MECTF to read her communications with [Bilgi]." Id. at 1204. The trial court denied Bilgi's motion to suppress his communications.
¶ 18 At trial, the State admitted Bilgi's text messages to Jake. The jury found him guilty as charged. Bilgi appeals his convictions.
ANALYSIS
WASHINGTON'S PRIVACY ACT
¶ 19 Bilgi argues the trial court erred when it denied his motion to suppress because various members of MECTF intercepted his communications in violation of the privacy act. Bilgi concedes that he impliedly consented to the recording of his messages on Detective Pohl's device, but he contends that MECTF used Callyo to "intercept[ his communications] and broadcast them, allowing anyone logged into the program to observe the communications as they occurred," and that he did not consent to such an interception. Br. of Appellant at 25. Bilgi specifically challenges the trial court's legal conclusion that his implied consent to record the messages was not limited to Jake's, or Pohl's, device, as well as the court's legal conclusion that Pohl could allow other members of the operation to read the messages without violating the privacy act.
Bilgi actually assigns error to the trial court's findings of fact XI and XII, but as he correctly notes, these findings were conclusions of law "and we treat [them] as such." State v. Norris , 157 Wash. App. 50, 66, 236 P.3d 225 (2010).
¶ 20 We hold that law enforcement did not intercept Bilgi's text messages in violation of the privacy act because Bilgi intended to send messages to a fictitious child, and his messages were received by the account behind that fictitious child. A. LEGAL PRINCIPLES
¶ 21 Under Washington's privacy act, communications may be intercepted or recorded only if all parties consent or if law enforcement receives specific court authorization. RCW 9.73.030. It is unlawful "to intercept, or record any ... [p]rivate communication ... by any device electronic or otherwise designed to record and/or transmit said communication ... without first obtaining the consent of all the participants in the communication." RCW 9.73.030(1)(a). The act includes exceptions for emergencies, threats, and the investigation of specific crimes, but those exceptions do not apply here. See RCW 9.73.030(2), .210, .230.
The legislature reenacted and amended this statute in 2021, but the amendment does not impact the provisions at issue in this case. See Laws of 2021, ch. 329, § 21.
¶ 22 Information obtained in violation of RCW 9.73.030 is inadmissible in a criminal trial. RCW 9.73.050. This exclusionary rule broadly encompasses "any information obtained while using unauthorized electronic broadcasts, including visual observations and assertive conduct." State v. Fjermestad , 114 Wash.2d 828, 835, 791 P.2d 897 (1990) ; see also State v. Gearhard , 13 Wash. App. 2d 554, 560, 465 P.3d 336 (explaining that if a recording does not fall within an exception to the privacy act, "neither the recording nor any testimony about the recorded conversation [is] admissible evidence"), review denied , 196 Wash.2d 1015, 473 P.3d 250 (2020). Further, if information obtained in violation of the privacy act was used in an application for a search warrant, and the remaining evidence in support of the warrant is insufficient to support a finding of probable cause in the absence of the unlawfully obtained information, then any evidence obtained through the search warrant must also be excluded. State v. Salinas , 121 Wash.2d 689, 697, 853 P.2d 439 (1993). "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." State v. Christensen , 153 Wash.2d 186, 200, 102 P.3d 789 (2004).
¶ 23 The Washington Supreme Court has identified four factors of a privacy act violation: "(1) a private communication transmitted by a device, which was (2) intercepted or recorded by use of (3) a device designed to record and/or transmit (4) without the consent of all parties to the private communication." State v. Roden , 179 Wash.2d 893, 899, 321 P.3d 1183 (2014). Bilgi's challenge involves the second factor: whether Bilgi's communications were intercepted.
¶ 24 We review alleged violations of the privacy act de novo. State v. Racus , 7 Wash. App. 2d 287, 297, 433 P.3d 830, review denied , 193 Wash.2d 1014, 441 P.3d 828 (2019). Unchallenged findings of fact are considered verities on appeal, and the trial court's conclusions of law must be supported by its findings of fact. State v. Homan , 181 Wash.2d 102, 106, 330 P.3d 182 (2014) ; State v. Glant , 13 Wash. App. 2d 356, 364, 465 P.3d 382, review denied , 196 Wash.2d 1021, 474 P.3d 1055 (2020). We review the trial court's conclusions of law de novo, and unchallenged conclusions of law become the law of the case. Glant , 13 Wash. App. 2d at 364, 465 P.3d 382 ; Nguyen v. City of Seattle , 179 Wash. App. 155, 163, 317 P.3d 518 (2014).
1. DEFINING "INTERCEPT" UNDER THE PRIVACY ACT
¶ 25 RCW 9.73.030(1) makes it unlawful "to intercept, or record" private communications. In interpreting the privacy act, "[w]here there is no statutory definition to guide us, words should be given their ordinary meaning." Roden , 179 Wash.2d at 904, 321 P.3d 1183.
¶ 26 Merriam-Webster defines "intercept" as (a) "to stop, seize, or interrupt in progress or course or before arrival" or (b) "to receive (a communication or signal directed elsewhere) usually secretly." MERRIAM-WEBSTER ONLINE DICTIONARY , https://www.merriam-webster.com/dictionary/intercept (last visited Oct. 12, 2021). Black's Law Dictionary at 966 defines the verb "intercept" as "[t]o covertly receive or listen to (a communication)" and associates the term with "covert reception by a law-enforcement agency." (11th ed. 2019). ¶ 27 In Roden , an officer "opened, read, and responded to" text messages while the owner of the cell phone was in custody. 179 Wash.2d at 904, 321 P.3d 1183. The supreme court found this to be "consistent with the ordinary definition of ‘intercept’—to ‘stop ... before arrival ... or interrupt the progress or course.’ " Id. (alteration in original) (quoting Webster's Third New International Dictionary 1176 (2002)). Analogizing sending a text message to mailing a letter, the court reasoned that "the ordinary meaning of ‘intercept’ would encompass opening and reading a letter in someone else's mailbox before they receive it." Id. at 905, 321 P.3d 1183. Further, the officer in Roden "did not merely see a message appear on the iPhone;" he "manipulated" another individual's phone to access the message. Id. at 906, 321 P.3d 1183.
¶ 28 With the exception of Roden , however, Washington courts have primarily analyzed interception in the context of oral communications. In State v. Faford , the supreme court held that a private individual unlawfully intercepted his neighbors’ communications when he used a police scanner to eavesdrop on their telephone conversations. 128 Wash.2d 476, 479, 910 P.2d 447 (1996). In Christensen , the parties agreed that a mother violated the privacy act when she "activated the speakerphone function of the cordless telephone system by pressing a button on the base unit" and listened to a conversation between her daughter and her daughter's boyfriend. 153 Wash.2d at 190, 192, 102 P.3d 789.
Since the parties agreed that the action in Christensen constituted an interception under the privacy act, the court did not engage in any analysis of the term "intercept." The court commented that if the State had "argued and proved that [the mother's] act of listening in to her daughter's conversation with Christensen was not an intercept, the resolution of this case might well have proceeded down a different analytical path." Christensen , 153 Wash.2d at 197, 102 P.3d 789.
¶ 29 In Fjermestad , an undercover detective wore a body wire, without prior court authorization, while conducting a drug operation. 114 Wash.2d at 829-30, 791 P.2d 897. To ensure officer safety, this device transmitted audio of the undercover detective's communications to two other officers who were positioned nearby. Id. The supreme court held, "RCW 9.73 has no provisions for an undercover police operation to use electronic eavesdropping devices to transmit conversations without first obtaining court authorization, no matter how laudable the reasons." Id. at 836, 791 P.2d 897.
The supreme court has also designated the use of a pen register as an "intercept ... within the definition of a ‘private communication transmitted by telephone.’ " State v. Gunwall , 106 Wash.2d 54, 69, 720 P.2d 808 (1986) (quoting RCW 9.73.030(1)(a) ). " ‘A pen register is a mechanical device, usually installed at a central telephone company facility, that records on paper the numbers dialed from a particular telephone.’ " Id. at 63 n.15, 720 P.2d 808 (quoting Clifford S. Fishman, Pen Registers and Privacy: Risks, Expectations, and the Nullification of Congressional Intent , 29 Cath. U. L. Rev. 557, 558 n.3 (1980)). A pen register does not record the contents of any communications. Id.
2. SHARING RECORDED COMMUNICATIONS
¶ 30 Washington courts have held that a person impliedly consents to the recording of their communications on an electronic device when they communicate through e-mail, text messaging, and some online instant messaging software. State v. Townsend , 147 Wash.2d 666, 675-77, 57 P.3d 255 (2002) ; Glant , 13 Wash. App. 2d at 366, 465 P.3d 382 ; Racus , 7 Wash. App. 2d at 300, 433 P.3d 830. "[A] communicating party will be deemed to have consented to having his or her communication recorded when the party knows that the messages will be recorded." Townsend , 147 Wash.2d at 675, 57 P.3d 255.
¶ 31 When the sender of a written electronic message impliedly consents to the message's recording, they bear the risk that the intended recipient will share the message with others. In Glant , we reasoned that when a person sends e-mail or text messages, "they do so with the understanding that the messages [will] be available to the receiving party for reading or printing." 13 Wash. App. 2d at 365, 465 P.3d 382. In our view, it is logical to assume they do so with the additional understanding that the messages will be available to the receiving party for forwarding or sharing electronically. ¶ 32 In Roden , the intercepted communications were recorded on the recipient's phone, and the supreme court explained that "the privacy act was violated because the detective intercepted [ ] private communications without [the sender's ] or [the recipient's ] consent and without a court order." 179 Wash.2d at 906-07, 321 P.3d 1183 (emphasis added). This conclusion suggests that the outcome could have been different if the recipient had willingly shared the recorded messages with the detective.
B. APPLICATION
¶ 33 Here, the State conceded that Bilgi's communications were private, and the trial court found that Bilgi's communications were private, that they were recorded on Pohl's computer, which was a device designed to record the communications, and that Bilgi impliedly consented to this recording. Bilgi does not dispute these findings on appeal. Rather, Bilgi contends that his communications were unlawfully intercepted by Callyo prior to Pohl's receipt of the communication and that his communications were unlawfully intercepted by officers who were not the intended recipients, simultaneous to Pohl's receipt of the communication. He argues that his implied consent to the recording was not an implied consent to the interception.
¶ 34 As a preliminary matter, any argument that Callyo independently intercepted Bilgi's communications was not preserved for appeal. In his motion to suppress communications pursuant to RCW 9.73.050, Bilgi argued only that "[t]he State, and specifically the law enforcement officers involved in the investigation and arrest of the defendant, violated RCW 9.73.030 when they illegally intercepted the private e[-]mail and text conversations of the defendant." CP at 489 (emphasis added). Bilgi did not argue that Callyo unlawfully intercepted his communications. Regardless, this argument fails on the merits because Callyo is incapable of intercepting a communication in violation of the privacy act. RCW 9.73.030(1) states, "[I]t shall be unlawful for any individual, partnership, corporation, association, or the state of Washington, its agencies, and political subdivisions to intercept, or record" private communications. (Emphasis added.) Callyo is a computer software, not an actor with agency.
¶ 35 Bilgi makes two additional arguments. First, he argues that Pohl unlawfully intercepted his communications because she, in particular, was not his intended recipient. Second, he argues that the officers with whom Pohl shared Bilgi's communications as they were being received unlawfully intercepted his communications because even if Pohl had been his intended recipient, he did not consent to Pohl sharing his communications with others.
¶ 36 With respect to Bilgi's first argument, we disagree that Pohl unlawfully intercepted Bilgi's communications because she was not actually a 13-year-old boy named Jake. Bilgi willingly communicated with the person controlling the account purporting to be Jake, and thus there was no unlawful interception of his messages by the person behind the account. Bilgi's displeasure with the ruse he failed to detect does not constitute a redressable legal harm. Moreover, Bilgi offers no authority for this novel and expansive application of the privacy act. See B. & B. Farms, Inc. v. Matlock's Fruit Farms, Inc. , 73 Wash.2d 146, 152, 437 P.2d 178 (1968) (declaring that where the petitioner fails to cite authority to support their position, "we will not presume that such authority exists").
¶ 37 Additionally, the viewing of the electronic communications by other officers who, like Pohl, made up the law enforcement team in control of the account posing as Jake did not constitute an unlawful interception of Bilgi's communications. The officers did not covertly receive messages that were directed elsewhere. Nor is there evidence that other officers "manipulated" Pohl's device or opened the messages before they were received by Pohl. Roden , 179 Wash.2d at 906, 321 P.3d 1183. Bilgi sent messages to a fictitious child, and his messages were received by the account behind that fictitious child. When an account is held by multiple people, the account holders do not violate the privacy act by simultaneously receiving messages sent to that account. Jake's phone number, which was associated with MECTF's Callyo account, was Bilgi's intended recipient. The messages were received by the intended recipient. The fact that multiple officers were authorized to access the account does not change this conclusion.
¶ 38 It is commonly understood that a written communication, once sent to its intended recipient, can be passed on or shared by the recipient. See Glant , 13 Wash. App. 2d at 365, 465 P.3d 382. With the prevalence of web-based software such as e-mail accounts and Apple IDs, there is also a general recognition that usernames and passwords may be shared and that multiple people may log in to the same account at the same time. Even if the person controlling the account in this case had actually been a 13-year-old boy named Jake, Bilgi had no ability to restrain Jake from sharing his communications with anyone Jake so chose. Likewise, whether Pohl shared the communications she received from Bilgi with other officers as she received them, or the other officers with access to the account were logged in and read them on their own devices as they were received, there was no violation of the privacy act.
¶ 39 Bilgi relies on Faford , Christensen , and Fjermestad , but these cases are distinguishable. Both Faford and Christensen involved unrecorded oral communications that were intercepted by a third party without the consent of either of the conversation's participants.
¶ 40 In Fjermestad , the trial court suppressed testimony about unrecorded oral communications that were intercepted, and the defendant was convicted based only on a detective's simultaneous visual observations. 114 Wash.2d at 829-30, 791 P.2d 897. Therefore, the question on appeal was limited to the scope of the privacy act's exclusionary rule. See id. at 834-35, 791 P.2d 897. The supreme court did not consider whether the defendant could have impliedly consented to others hearing his communications. If it had, the analysis would have focused on the defendant's expectations of privacy in his in-person oral communications—a situation that is not comparable to the one presented here. "Generally, two people in a conversation hold a reasonable belief that one of them is not recording the conversation." State v. Kipp , 179 Wash.2d 718, 732, 317 P.3d 1029 (2014). In contrast, when a written communication is recorded by a recipient's device, there is a general understanding that the recipient could share it.
CONCLUSION
¶ 41 We hold that MECTF did not intercept Bilgi's communications in violation of the privacy act when it used a single, shared account for its Net Nanny operation. It is not legally significant that the account was created using Callyo. Therefore, the trial court properly denied Bilgi's motion to suppress all evidence relating to his communications. We affirm Bilgi's convictions.
¶ 42 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.
We concur:
WORSWICK, J.
LEE, C.J.