STATE v. ARCHIE (2009)

PUBLISHED IN PART

 ¶ 1 Michael Archie was convicted of burglary in the first degree and assault in the second degree.   Evidence at trial included recordings of his jail telephone conversations.   Archie contends these recordings violated his privacy interests under the Washington Constitution article I, section 7 and should have been suppressed.   But Archie had no reasonable expectation of privacy under these facts, and the communications were therefore not “private affairs” deserving article I, section 7 protection.   We reject Archie's other arguments and affirm.

BACKGROUND

¶ 2 For several years, Michael Archie and Anita Bellinger had an on-again, off-again dating relationship.   On the evening of April 3, 2006, Archie visited Bellinger twice at her apartment, and each visit ended with the parties arguing and Bellinger asking Archie to leave.   Archie returned sometime after midnight.   When Bellinger refused to let him in, Archie kicked open the door.   Bellinger swung at him with a knife, but dropped it.   She then grabbed a metal stool, trying to keep Archie at a distance, but she also dropped the stool.   Archie punched her in the face, knocking her to the ground.   He then stomped and kicked her in the torso multiple times, breaking her ribs.   Finally, he picked up the metal stool and beat her with it as she lay on the floor in a fetal position.

¶ 3 Archie was arrested and charged with first degree burglary and second degree assault.   The court issued a pretrial no contact order that prevented him from contacting Bellinger even if she invited or allowed him to do so.   In spite of this order, Archie made numerous phone calls to Bellinger from the King County jail.

 ¶ 4 Signs posted near the jail telephones warn that telephone calls are subject to recording and monitoring.   When a call is answered, a recorded message announces:

Hello, this is a call at no expense to you from ․ [name of inmate as given by inmate] [an] inmate at the King County Detention Facility.   This call will be recorded and subject to monitoring at any time.   To accept this call, dial three.   To refuse this call, dial nine or hang up now.   Thank you for using Public Communication Services.   You may begin speaking now.[1]

¶ 5 After the recorded message plays, the call cannot continue until the recipient dials or presses three.   This sequence occurred each time Archie called Bellinger.

¶ 6 In several of these calls, Archie apologized to Bellinger for his actions, and repeatedly urged her to “be by [his] side” regarding the case.²  Recordings of these calls were admitted at trial.   The jury convicted Archie as charged.

¶ 7 Archie appeals.

DISCUSSION

 ¶ 8 Article I, section 7 of the Washington Constitution provides that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” ³  Whether undisputed facts constitute a violation of that constitutional provision is a question of law we review de novo.⁴  “Private affairs” are “those privacy interests  which citizens of this state have held, and should be entitled to hold, safe from government trespass.” ⁵

 ¶ 9 In determining whether a privacy interest merits article I, section 7 protection, we consider several central questions:  whether the information obtained via the governmental trespass reveals “intimate or discrete” details of a person's life,⁶ what expectation of privacy a person has in the information sought, and whether there are historical protections afforded to the perceived interest.⁷  The analysis is not limited to a subjective expectation of privacy in modern times with modern technology,⁸ and does not rest solely on the legitimacy of a subjective expectation of privacy.⁹

¶ 10 Washington has a long history of extending strong protections to telephonic communications.¹⁰  Those strong protections do not, however, invariably apply in detention settings.

 ¶ 11 The privacy act, chapter 9.73 RCW, prohibits intercepting or recording a private communication transmitted by telephone unless all parties to the communication consent.¹¹  A communication is private under the act when (1) the parties have a subjective expectation that it is private, and (2) that expectation is objectively reasonable.¹²  But telephone calls from inmates in state correctional facilities may be intercepted, recorded, or divulged by the department of corrections, provided that the department of corrections adheres to the certain procedures and restrictions.   One of these restrictions is that calls be operator announcement type calls, in which the recipient is notified that the call is from a prison inmate and will be recorded and may be monitored.¹³

¶ 12 There is no similar provision in the privacy act for telephone calls from inmates in local jails.   But in State v. Modica,¹⁴ the Washington Supreme Court recently held that recording of a jail inmate's calls to his grandmother did not violate the privacy act where signs were posted near the telephones warning that calls would be recorded, a message informed both Modica and his grandmother that the call would be recorded, and the grandmother was required to press three in order to accept the call.¹⁵  The court concluded that any subjective expectation of privacy was not objectively reasonable under these circumstances.¹⁶

¶ 13 The facts here are nearly identical to those in Modica.   Archie contends, however, that because he was a pretrial detainee protected by the presumption of innocence, the analysis should be different.

¶ 14 This argument fails.   The United States Supreme Court has declined to apply the presumption of innocence in analyzing the constitutionality of various pretrial confinement rules and conditions:

The presumption of innocence is a doctrine that allocates the burden of proof in criminal trials;  it also may serve as an admonishment to the jury to judge an accused's guilt or innocence solely on the evidence adduced at trial and not on the basis of suspicions that may arise from the fact of his arrest, indictment, or custody, or from other matters not introduced as proof at trial․ But it has no application to a determination  of the rights of a pretrial detainee during confinement before his trial has even begun.[[17]

¶ 15 Similarly, the Washington State Supreme Court has recognized the need for monitoring inmate communications, and has found no invasion of privacy when other forms of inmate communications are inspected so long as inmates have been informed of that likelihood:  “[F]or very obvious security reasons, practically every jail and penal institution examines the letters and packages, incoming and outgoing, of all inmates.” ¹⁸  Moreover, prison regulations prohibit incoming or outgoing mail when the correspondent is an individual with whom contact is restricted by court order.¹⁹

 ¶ 16 These concerns do not depend upon whether the inmate is pre- or posttrial, or whether the communication is by mail or telephone.  “Maintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pretrial detainees.” ²⁰  The King County jail recording system serves important institutional purposes.

 ¶ 17 Balancing the circumstances here against the privacy protection usually applied to telephone communications, we are persuaded that Archie's phone calls from the jail were not private affairs deserving of article I, section 7 protection.

 ¶ 18 Further, where one participant in a conversation has consented, the recording does not violate article I, section 7.²¹ Bellinger expressly consented to recording when she pressed or dialed three to continue the call after the recorded warning.   For this reason also, the recordings did not violate article I, section 7.

 ¶ 19 The court did not err in denying Archie's motion to suppress.

¶ 20 Affirmed.

¶ 21 The balance of this opinion having no precedential value, the panel has determined it should not be published in accordance with RCW 2.06.040.

Sentencing

¶ 22 Relying on a 1979 conviction for statutory rape and a 1986 conviction for second degree murder, the State sought a finding that Archie was a persistent offender, thus mandating a sentence of life imprisonment.   Because statutory rape is not included among the offenses that qualify as prior convictions for a persistent offender finding, the State argued that Archie's 1979 conviction was comparable to the current offense of second degree rape of a child.   The court agreed with the State, found Archie to be a persistent offender, and imposed a sentence of life imprisonment without the possibility of parole.

¶ 23 The Persistent Offender Accountability Act (POAA) of the Sentencing Reform Act of 1981, chapter 9.94A RCW, requires a life sentence upon the third (or second) conviction for certain enumerated crimes (strike offenses) or for crimes deemed comparable to those crimes.22  A sentencing court's decision to consider a prior conviction as a strike offense is reviewed de novo.23

¶ 24 Second degree rape of a child is a designated strike offense,24 but in 1979, no crime in Washington bore that name.   To determine the comparability of a prior offense for the purpose of the POAA, a sentencing court must first inquire whether the prior offense is legally comparable, that is, whether the elements of the prior offense are substantially similar to the elements of the current Washington offense.25  If the elements of the prior offense are broader than the current offense, the court must then determine whether the offense is factually comparable-in the case of a guilty plea, whether the conduct underlying the prior offense, as evidenced by the indictment or information or by facts in the record that are admitted, stipulated to, or proved beyond a reasonable doubt, would have violated the comparable current statute.26 If a prior conviction is neither legally nor factually comparable, it may not be counted as a strike under the POAA. 27

¶ 25 In 1979, Archie pleaded guilty to statutory rape in the second degree.   Under the statute then in effect:  “A person over sixteen years of age [was] guilty of statutory rape in the second degree when such person engage [d] in sexual intercourse with another person, not married to the perpetrator, who [was] eleven years of age or older but less than fourteen years old.” 28  Under the current statute, a person is guilty of rape of a child in the second degree “when the person has sexual intercourse with another who is at least twelve years old but less than fourteen years old and not married to the perpetrator and the perpetrator is at least thirty-six months older than the victim.” 29

¶ 26 The State concedes the two crimes are not legally comparable because the former statutory rape provision is broader than the current rape of a child statute, which requires that the perpetrator be thirty-six months older than the victim.   The question is whether the record supports the finding that Archie was thirty-six months older than his victim.

¶ 27 Archie points out that nothing in the record indicates his age at the time of the plea, or his date of birth.   There was, however, evidence showing that Archie was thirty-six months older than his victim.   The information alleged:

That ․ Michael Archie ․ in King County, Washington, on or about June 28, 1978, being older than sixteen years of age, did engage in sexual intercourse with Alva Quinn, not being married to Alva Quinn, who was eleven years of age or older but less than fourteen years old, to-wit:  twelve years.[30]

¶ 28 To this charge Archie entered a guilty plea, thereby admitting that he was sixteen years old or older while his victim was twelve years old, and thus that he was more than thirty-six months older than his victim.   The court did not err in finding Archie's 1979 conviction of statutory rape factually comparable to the current crime of rape of a child in the second degree.

¶ 29 Relying on Blakely v. Washington,31 Ring v. Arizona, 32 and Apprendi v. New Jersey,33 Archie contends the United States Constitution requires that a jury determine beyond a reasonable doubt whether he had two prior convictions that constituted strike offenses under the POAA. The Washington Supreme Court has rejected this same argument, most recently in State v. Thiefault.34

¶ 30 Affirmed.

FOOTNOTES

1.   Report of Proceedings (Feb. 1, 2007) 999-1000.

2.   Id. at 1012.

3.   The law is settled that the privacy protections provided by article I, section 7 are qualitatively different from, and in some cases broader than, those provided by the Fourth Amendment.  City of Seattle v. McCready, 123 Wash.2d 260, 267, 868 P.2d 134 (1994) (citing State v. Gunwall, 106 Wash.2d 54, 65, 720 P.2d 808 (1986)). Consequently, it is unnecessary to engage in a Gunwall analysis to determine whether a claim under article I, section 7 warrants an inquiry on independent state grounds.  McNabb v. Dept. of Corrections, 163 Wash.2d 393, 399-400, 180 P.3d 1257 (2008).

4.   State v. Rankin, 151 Wash.2d 689, 694, 92 P.3d 202 (2004).

5.   State v. Myrick, 102 Wash.2d 506, 510-11, 688 P.2d 151 (1984).

6.   State v. Jorden, 160 Wash.2d 121, 126, 156 P.3d 893 (2007).

7.   Id. at 127, 156 P.3d 893.   Also relevant are the purpose for which the information is acquired and by whom it is kept.  Id. Here, however, the information is compiled by the government and made available only to law enforcement.

8.   McCready, 123 Wash.2d at 270, 868 P.2d 134.

9.   Myrick, 102 Wash.2d at 513, 688 P.2d 151.

10.   See Gunwall, 106 Wash.2d at 66, 720 P.2d 808.

11.   RCW 9.73.030(1)(a).

12.   State v. Christensen, 153 Wash.2d 186, 193, 102 P.3d 789 (2004).

13.   RCW 9.73.095(2)(b).

14.   164 Wash.2d 83, 186 P.3d 1062 (2008).   At oral argument, Archie conceded that Modica disposes of his Washington privacy act challenge.

15.   Id. at 88, 186 P.3d 1062.

16.   Id.

17.   Bell v. Wolfish, 441 U.S. 520, 533, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (citations omitted).

18.   State v. Hawkins, 70 Wash.2d 697, 704, 425 P.2d 390 (1967).

19.   WAC 137-48-040(1)(g).

20.   Bell, 441 U.S. at 547, 99 S.Ct. 1861.

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

FN22. RCW 9.94A.030(33)..  FN22. RCW 9.94A.030(33).

FN23. State v. Thiefault, 160 Wash.2d 409, 414, 158 P.3d 580 (2007)..  FN23. State v. Thiefault, 160 Wash.2d 409, 414, 158 P.3d 580 (2007).

FN24. RCW 9.94A.030(33)(b)(i)..  FN24. RCW 9.94A.030(33)(b)(i).

FN25. In re Pers. Restraint of Lavery, 154 Wash.2d 249, 255, 111 P.3d 837 (2005) (stating test for comparability of a foreign conviction to a Washington strike offense).   The same test applies to a determination of comparability of a prior Washington conviction to a strike offense.   See State v. Stockwell, 159 Wash.2d 394, 397, 150 P.3d 82 (2007)..  FN25. In re Pers. Restraint of Lavery, 154 Wash.2d 249, 255, 111 P.3d 837 (2005) (stating test for comparability of a foreign conviction to a Washington strike offense).   The same test applies to a determination of comparability of a prior Washington conviction to a strike offense.   See State v. Stockwell, 159 Wash.2d 394, 397, 150 P.3d 82 (2007).

FN26. Lavery, 154 Wash.2d at 258, 111 P.3d 837..  FN26. Lavery, 154 Wash.2d at 258, 111 P.3d 837.

FN27. Id..  FN27. Id.

FN28.  Former RCW 9.79.210 (1975)..  FN28.  Former RCW 9.79.210 (1975).

FN29. RCW 9A.44.076(1)..  FN29. RCW 9A.44.076(1).

FN30.  Ex. 4..  FN30.  Ex. 4.

FN31. 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)..  FN31. 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).

FN32. 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002)..  FN32. 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002).

FN33. 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)..  FN33. 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

FN34. 160 Wash.2d 409, 158 P.3d 580 (2007)..  FN34. 160 Wash.2d 409, 158 P.3d 580 (2007).

ELLINGTON, J.