Opinion
No. 36412-7-III
04-06-2021
STATE of Washington, Respondent, v. Modesto Bravo GONZALEZ, Jr., Appellant.
Jill Shumaker Reuter, Laura Michelle Chuang, Eastern Washington Appellate Law, PLLC, PO Box 8302, Spokane, WA, 99203-0302, for Appellant. Douglas J. Shae, James Andrew Hershey, Attorney at Law, PO Box 2596, Wenatchee, WA, 98807-2596, for Respondent.
Jill Shumaker Reuter, Laura Michelle Chuang, Eastern Washington Appellate Law, PLLC, PO Box 8302, Spokane, WA, 99203-0302, for Appellant.
Douglas J. Shae, James Andrew Hershey, Attorney at Law, PO Box 2596, Wenatchee, WA, 98807-2596, for Respondent.
OPINION PUBLISHED IN PART
Pennell, C.J.
¶ 1 Washington's privacy act restricts the authority of undercover law enforcement agents to intercept or record private conversations through devices such as body wires. Under the privacy act, the use of surreptitious recording devices must be supported by a court order and based on a case-specific showing of particular need. The required showing of need is not onerous, but it must be something more than generalized truisms.
¶ 2 In Modesto Bravo Gonzalez's case, law enforcement obtained intercept orders authorizing placement of a body wire on a confidential informant (CI) who was engaged in several undercover drug buys. The applications for the orders stated not only the truism that law enforcement wanted to corroborate the CI's testimony, but also that the specific facts of the case showed potential risks to the CI's safety that could be mitigated by the use of a body wire. Under these circumstances, the intercept orders were warranted. We therefore affirm the trial court's denial of Mr. Gonzalez's motion to suppress the fruits of the orders.
FACTS
¶ 3 This case revolves around four controlled drug buys that took place inside Modesto Bravo Gonzalez's home. A CI facilitated the buys. After the first controlled buy, law enforcement obtained two intercept orders, allowing them to place a wire on the CI and record the CI's interactions with Mr. Gonzalez.
¶ 4 The two applications for intercept orders were authored by a detective working with the CI. Both applications explained Mr. Gonzalez had a practice of selling drugs from inside his home and access to at least two firearms within the home, including a sawed-off shotgun. The second application disclosed the CI had a pending drug case as well as several prior convictions. According to the applications, the plan was for the CI to make additional controlled buys from Mr. Gonzalez inside of Mr. Gonzalez's home.
¶ 5 After the CI participated in three additional controlled buys while using a body wire, officers obtained a search warrant for Mr. Gonzalez's home.
¶ 6 In executing the warrant, officers found heroin along with paraphernalia related to drug use and drug trafficking. In the home's basement, officers found three firearms. Two shotguns, one of which had a sawed-off barrel, were located in a boarded-up area under the stairwell. A pistol was found, among some clutter, near a bed. Officers were able to recover fingerprints from at least one of the firearms. The prints did not correspond to Mr. Gonzalez.
¶ 7 The State charged Mr. Gonzalez with several felony offenses, including four counts of unlawful delivery of a controlled substance (one for each undercover sale), two counts of first degree unlawful possession of a firearm, one count of possession of an unlawful firearm (the sawed-off shotgun), one count of unlawful possession of heroin with intent to deliver, and one count of maintaining a drug property.
¶ 8 After unsuccessfully moving to suppress the fruits of the intercept orders and search warrant, Mr. Gonzalez exercised his right to a jury trial. The jury acquitted him of the charges related to the first two drug sales and convicted him of the remaining counts.
¶ 9 Mr. Gonzalez timely appeals.
ANALYSIS
¶ 10 In the published portion of this opinion we address Mr. Gonzalez's claim, made in a statement of additional grounds for review, that the intercept order was invalid because it was not based on a particularized showing of need. The remaining contentions are addressed in the unpublished portion of the decision.
Intercept orders
¶ 11 Washington's privacy act, chapter 9.73 RCW, generally prohibits law enforcement from intercepting or recording private conversations without full consent of all parties or one-party consent and a court order. See RCW 9.73.090(2) ; State v. Roden , 179 Wash.2d 893, 898-99, 321 P.3d 1183 (2014). Evidence obtained in violation of the act is subject to suppression and inadmissible at trial. RCW 9.73.050.
¶ 12 When the issue on appeal is the legitimacy of a privacy act order, our focus is somewhat unique. We do not defer to the trial judge who ruled on a motion to suppress the fruits of the order; the propriety of a suppression order is reviewed de novo. Instead, we focus on the decision of the judicial officer who initially authorized the intercept order. We accord "considerable discretion" to the initial intercept decision. State v. Clark , 129 Wash.2d 211, 237, 916 P.2d 384 (1996) (Alexander, J., concurring in part and dissenting in part). So long as the authorizing judge used the correct legal standard, we will uphold an intercept order based on minimally sufficient facts. See State v. J.K.T. , 11 Wash. App. 2d 544, 555, 455 P.3d 173 (2019) (quoting State v. Manning , 81 Wash. App. 714, 718, 915 P.2d 1162 (1996) ).
¶ 13 Applications for intercept orders are governed by RCW 9.73.130. The statute identifies several factual prerequisites. Relevant here, an intercept application must include "[a] particular statement of facts showing that other normal investigative procedures with respect to the offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ." RCW 9.73.130(3)(f). This subsection is known as the particularity requirement.
Some of the factual prerequisites set forth in RCW 9.73.130 are not necessary in drug cases. RCW 9.73.090(5) ("true name of the nonconsenting party, or particular time and place for the interception" not necessarily required if unknown at the time of application). However, the particularity requirement of RCW 9.73.130(3)(f) remains applicable.
¶ 14 The privacy act's particularity requirement is distinct from the particularity requirement imposed by the Fourth Amendment to the United States Constitution. The Fourth Amendment's particularity requirement mandates that a warrant specifically describe all items to be seized. State v. Fairley , 12 Wash. App. 2d 315, 319-20, 457 P.3d 1150 (2020). To be constitutionally sufficient, a warrant must narrowly describe the targets of a search so law enforcement does not improperly intrude into private areas for which they lack probable cause. See State v. Perrone , 119 Wash.2d 538, 545, 834 P.2d 611 (1992) (quoting Andresen v. Maryland , 427 U.S. 463, 480, 96 S. Ct. 2737, 49 L. Ed. 2d 627 (1976) ).
¶ 15 The privacy act's particularity requirement is less exacting. The statute provides safeguards against governmental intrusions even when constitutional rights are not implicated due to one-party consent. See United States v. White , 401 U.S. 745, 751, 91 S. Ct. 1122, 28 L. Ed. 2d 453 (1971) (Fourth Amendment does not prohibit intercepting conversations when one party consents.); State v. Salinas , 119 Wash.2d 192, 197, 829 P.2d 1068 (1992) ( WASH. CONST. art. 1, § 7 does not prohibit intercepting conversations when one party consents). As a matter of constitutional law, law enforcement officers enjoy broad discretion to decide whether to record undercover conversations through devices such as body wires. Washington's privacy act is designed to limit this discretion. State v. D.J.W. , 76 Wash. App. 135, 145, 882 P.2d 1199 (1994), aff'd , State v. Clark , 129 Wash.2d 211, 237, 916 P.2d 384 (1996). The privacy act does not require a showing of absolute necessity to obtain an intercept order. See State v. Cisneros , 63 Wash. App. 724, 729, 821 P.2d 1262 (1992). What is contemplated is a flexible, practical assessment of whether law enforcement has shown an intercept warrant is justified in a particular case. State v. Platz , 33 Wash. App. 345, 349-50, 655 P.2d 710 (1982).
¶ 16 While the privacy act's particularity requirement is not onerous, it still must consist of something more than a "boilerplate" showing of need. Manning , 81 Wash. App. at 720, 915 P.2d 1162. Evidence obtained through an intercept order will invariably be helpful to the State in securing a conviction. Id. But mere helpfulness is insufficient. To meet the terms of the privacy act, an intercept application must make a case-specific showing of need, so as to guard against orders being made available in all cases as a matter of course.
¶ 17 The totality of the facts alleged here were sufficient to meet the privacy act's particularity requirement. The intercept applications did not simply contain standard, boilerplate information. Law enforcement did not merely recite the truism that testimony from a CI would be enhanced by corroboration. Instead, the applications made clear safety was also a significant concern. The facts set forth in the intercept applications reveal the CI reported seeing firearms in Mr. Gonzalez's home, including a sawed-off shotgun. Given the undercover purchases were to take place inside of the home, standard law enforcement surveillance methods were insufficient to address the CI's safety. Officers needed an intercept order to "listen and be prepared to move in if necessary." State v. Knight , 54 Wash. App. 143, 151, 772 P.2d 1042 (1989). The issuing judge therefore had a tenable factual basis to issue the intercept orders.
¶ 18 We affirm the trial court's denial of Mr. Gonzalez's motion to suppress the fruits of the intercept orders.
¶ 19 The panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WE CONCUR:
Siddoway, J.
Lawrence-Berrey, J.