State v. Faford

Guy, J.

(concurring in part, dissenting in part) — I respectfully dissent to that portion of the majority opinion that would impute to the State violations of the privacy act by a private citizen where the citizen’s conduct was not instigated, encouraged, counseled, directed or controlled by the State. The majority is correct in saying that "the fruit of the poisonous tree” doctrine does not generally apply to private searches. Having said that, however, the majority proceeds to apply the doctrine in this case where a citizen violated the privacy act without any knowledge or involvement of the State, and concludes that the exploitation (use) of a citizen neighbor’s information tainted the subsequent search that otherwise may have been lawful.

*490 Any information obtained in violation of RCW 9.73.030 is inadmissible in a criminal or civil action. RCW 9.73.050. Information obtained by a neighbor through intercepted conversation is "information obtained.” The issue at this point of analysis is thus whether the neighbor’s violation of the privacy act either (1) requires suppression of all evidence under the "fruit of the poisonous tree” doctrine, or (2) taints the consent which the officers obtained to search the defendant’s house because the officers would not have investigated the defendant without the information provided by the neighbor.

I agree the "fruit of the poisonous tree” doctrine does apply to some illegal private searches. "In order to impute the illegality of the private citizen to the state, the latter must have in some way instigated, encouraged, counseled, directed, or controlled that conduct.” State v. Agee, 15 Wn. App. 709, 713-14 , 552 P.2d 1084 (1976), aff’d, 89 Wn.2d 416 , 573 P.2d 355 (1977). See also State v. Smith, 110 Wn.2d 658, 666 , 756 P.2d 722 (1988), cert. denied, 488 U.S. 1042 (1989). The officers’ "knowing exploitation” (use) of the information from the neighbor does not meet this test in this case. Unless the State was involved in the neighbor’s violation of the privacy act, there is no basis for imputing that violation to the State. The officers’ decision to act on the neighbor’s information by attempting to make a consent search was proper.

The issue then becomes whether the consent to the search was valid. An otherwise voluntary consent may be invalidated if it is tainted by the exploitation of a prior illegal search. State v. Cantrell, 70 Wn. App. 340, 346 , 853 P.2d 479 (1993), disaff’d in part on other grounds, 124 Wn.2d 183 , 875 P.2d 1208 (1994). The majority extends this rule on exploitation of a search to the violation of the privacy act. The majority’s view that a consent to a search was tainted because the tip to the police came about through a citizen’s violation of the privacy act is in error for two reasons. First, the rule that an unlawful act may taint subsequent lawful acts presupposes unlawful conduct *491 by the State. See Cantrell, 70 Wn. App. at 346 (illegal detention following a traffic stop); State v. Gonzales, 46 Wn. App. 388, 397 , 731 P.2d 1101 (1986) (arrest without probable cause); State v. Jensen, 44 Wn. App. 485, 489 , 723 P.2d 443 (illegal search of contents of automobile trunk), review denied, 107 Wn.2d 1012 (1986). Here there was no illegal act by the State. The neighbor’s violation of the privacy act cannot be imputed to the State under Agee without unlawful conduct by the State.

Second, even assuming the imputation rule would apply to an illegal eavesdropping, regardless of how it came about, a determination that the subsequently obtained consent was not valid requires consideration of several factors: (1) the temporal proximity of the illegal search or seizure to the subsequent consent, (2) any significant intervening circumstances, (3) the purpose and flagrancy of the misconduct, and (4) whether Miranda warnings were given. State v. Tijerina, 61 Wn. App. 626, 630 , 811 P.2d 241 (citing Taylor v. Alabama, 457 U.S. 687, 690 , 102 S. Ct. 2664 , 73 L. Ed. 2d 314 (1982)), review denied, 118 Wn.2d 1007 (1991). The majority finds the consent to be invalid without analyzing these factors. The issue the majority should have addressed is whether the consent to search was valid. The majority should not invalidate the search results on the basis of a violation of the privacy act by the neighbor.

The majority concludes that "[t]o permit the State to introduce evidence exclusively and directly flowing from a privacy act violation would render any privacy protection illusory and meaningless.” Majority at 489. The suggestion is that the appellants have no remedy for the neighbor’s illegal eavesdropping. A violation of the privacy act is a gross misdemeanor, RCW 9.73.080, and the violator is liable for damages, including attorney fees, RCW 9.73.060. These sections provide remedies for violation of the act by private parties. The neighbor’s violation of the act renders his testimony regarding the telephone conversations inadmissible under RCW 9.73.050, even though *492 the State has not violated the law. There is no legal authority to further penalize the State by suppressing properly obtained evidence because the tip as to illegal conduct came as the result of a third party’s violation of the privacy act not instigated by the State and over which the State had no control. The majority’s ruling would stop the investigation of any crime by the police because a tip to the police came from a citizen who had violated the privacy act in obtaining information regarding the crime. There is no rational or legal basis for such a restrictive reading of the privacy act.

Durham, C.J., and Talmadge, J., concur with Guy, J.

Reconsideration denied March 22, 1996.