F 1-I:~E·. IN CLERKI OPFICI' 

ll.IPRt'ME COURT, nnarr•!IIPII 

' DATE AUG 0 ' 2U'i5 ·~ 

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Thl~ opinion was flied for record 

at 8 K);;) eyy;, on AYj . (q • ao IS 

IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

STATE OF \VASHINGTON, ) 

) 

Respondent, ) 

) 

v. ) 

) 

ROMAN MIKHAILOVICH FEDOROV, ) 

) 

Petitioner. ) 

--------.) 

No. 90939-3 

EnBanc 

Filed AUG 0 ~ 2015 

JOHNSON, J.-. This case involves private consultation with counsel in the 

context of CrR 3.1, the rule-based right to counsel. Roman Fedorov was arrested 

for attempting to elude law enforcement and driving under the influence. He was 

transported to the Fife City Jail for the purpose of administering a breath alcohol 

concentration (BAC) test. Fedorov asked for, and was granted, the opportunity to 

sp~ak with an on-call defense attorney by telephone before consenting to take the 

BAC test, pursuant to CrR 3 .1. T'he Washington State Patrol (WSP) trooper, 

however, remained in the one-room Fife jail, citing safety concerns and his need to 

perform a 15~minute observation period before administering the BAC test. The 

trooper stood out of earshot at the far side of the room. Fedorov and his attorney 

chose to converse only in yes/no questions, fearing Fedorov would blurt out 
State v. Fedorov (Roman), No. 90939-3 

something incriminating. Fedorov argues that the presence of the trooper in the 

room violated his rule-based tight to counsel because only with absolute privacy 

can· the right to counsel be effective. 

We hold that the rule-based right to counsel does not provide for a right to 

absolute privacy for conversations between attorney and client. The rule-based 

right to counsel in CrR 3.1 and CrRLJ 3.1, 1 by its own terms, provides only an 

opportunity to contact an attorney. Once contacted, privacy between the arrestee 

and attorney may be balanced against legitimate safety and practical concerns, and 

challenges alleging such violations are reviewed under the totality of the 

circumstances. We affirm. 

FACTS AND PROCEDURAL HISTORY 

Near midnight in January 2012, WSP Trooper Ryan Durbin's radar detector 

clocked a car moving at 119 mph on Interstate 5 (I-5) near Fife. Durbin pursued; 

t~e car accelerated to 130 mph, avoiding traffic by driving on the far right shoulder 

and then suddenly exiting I-5, running several red lights. The car, now traveling 

the wrong way down Pacific A venue, turned off its lights and drove into a parking 

lot. Trooper Durbin cornered the car and directed the occupants to exit. A 

passenger quickly exited the vehicle. The driver, Fedorov, exited slowly, resisting 

1 CrRLJ 3.1, applicable in courts of limited jurisdictions, is coextensive with CrR 3 .1. As 

a matter of convenience, generic references to this rule-based right in this opinion are to CrR 3.1. 

2 
State v. Fedorov (Roman), No. 90939-3 

Trooper Durbin's directions to lie flat on the ground. Durbin observed in Fedorov 

signs of intoxication, including bloodshot eyes and poor coordination. He arrested 

Fedorov, read him his Miranda2 rights, and transported him to the nearest police 

station with a BAC machine: the Fife Police Department. 

The Fife Police Department is also a jail, run by only one officer. The 

building is basically one large windowless room, variously described in the record 

as being 29 feet by 17 feet or "29 paces" by "1 7 paces," entered via a sally port. 

Verbatim Repo'rt of Proceedings (Vol. 1 & 2) at 22. Testimony at trial stated that 

officers who brought individuals to the jail for BAC testing were personally 

responsible for their arrestees. Entering and exiting the jail is difficult because only 

one officer has the k.ey to the sally port. A telephone is located at one end of the 

room, along with a metal loop so that arrestees can be handcuffed to that location. 

At the other end of the room is a washing machine and clothing for those 

incarcerated. 

Trooper Durbin asked Fedorov to take a BAC test. He read the implied 

consent warnings and asked a series of preliminary questions. He also began the 

statutorily required 15-minute pretest observation period before administering the 

test. After answering these questions, Fedorov asked to speak to an attorney. 

----------

2 ~Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 

3 
State v. Fedorov (Roman), No. 90939-3 

Trooper Durbin arranged for Fedorov to speak to a public defender, Nicholas . . . . ; ' . ' . .· 

Andrews, by telephone. 

Andrews began by asking Trooper Durbin some preliminary questions about 

Fedorov. He then asked for complete privacy. Durbin responded that because he 

could not observe Fedorov from outside the jail, he could not provide Fedorov with 

complete privacy. Durbin testified that when an arrestee asks for privacy, he would 

· walk to the other side of the room near the washing machine to give as much 

privacy as he· could while keeping the arrestee in view. 

Andrews twice told Fedorov to ask Trooper Durbin for complete privacy; 

Durbin testified that he did not recall these requests. Durbin also testified that he 

would not have been able to hear Fedorov's conversation at the far side of the 

roorn unless Fedorov spoke loudly. Andrews asked Fedorov a series of yes/no 

questions but testified b1ter at the suppression hearing that the yes/no format made 

asking certain questions unfeasible given the allotted time. Andrews did, however, 

inforrn Fedorov ofhis rights and the consequences of refusing the BAC test. He 

did not make a recommendation to Fedorov whether to take the test. This 

telephone call between ~ndrews and Fedorov lasted approximately 13 minutes; the 

record does not show that Trooper Durbin interrupted or interfered in any way. 

Durbin testified that he stood by the washing machine at the other end of the room 

4 
State v. Fedorov (Roman), No. 90939-3 

filling out paperwork during the telephone call. Fedorov agreed to take the BAC 

test. His results were .096 and .095. 

Fedorov moved to suppress the BAC test results. He argued that Trooper 

Durbin's presence denied him his right to converse privately with counsel. The 

trial judge agreed that there was insufficient privacy afforded to Fedorov, but 

concluded that he suffered no prejudice because he was still able to freely converse 

with Andrews and he decided to take the BAC test anyway. Fedorov's motion to 

suppress was denied, and he was later convicted by jury trial. He appealed. 

Although Fedorov did not assign error to any of the trial court's findings, the 

State challenged "Findings as to Disputed Facts No. 1" because this "finding" 

contained an imbedded conclusion of law, that "there was insufficient privacy 

afforded to the defendant during his phone call with Mr. Andrews." Clerk's Papers 

at 117. All other findings are verities on appeal. The Court of Appeals affirmed, 

but on different grounds. State v. Fedorov, 183 Wn. App. 736, 335 P.3d 971 

(2014), review granted, 182 Wn.2d 1021 (2015). Following Division One of the 

Court of Appeals' holding in City of Seattle v. Koch, 53 Wn. App. 352, 767 P.2d 

143 (1989), the court reasoned that the presence of an officer does not necessarily 

deny a defendant the right to private consultation with counsel. Rather, because the 

rule-based right to counsel at this stage is limited, whether the right was violated 

depends on the facts and circumstances of each case. Concluding that there was no 

5 
Stat:e v. Fedorov (Roman), No. 90939-3 

violation ofthe rule-based right to counsel, the Court of Appeals did not address 

the issue of prejudice. 

ANALYSIS 

The partiesagree that the Sixth Amendment to the United States 

Constitution '·sright to counsel is not implicated in this case. Our resolution rests 

exclusively on the rule-based right under CrR 3 .1. In relevant part, the rule reads: 

(c) Explaining the Availability of a Lawyer. 

( 1) When a person is taken into custody that person shall 

immediately be advised of the right to a lawyer. Such advice shall be 

made in words easily understood, and it shall be stated expressly that 

a person who is unable to pay a lawyer is entitled to have one 

provided without charge. 

(2) At the earliest opportunity a person in custody who desires a 

lawyer shall be provided access to a telephone, the telephone number 

of the public defender or official responsible for assigning a lawyer, 

and any other means necessary to place the person in communication 

with a lawyer. 

CrH. J.l; see CrRLJ 3 .1. 

By its terms, the rule provides for the opportunity to access an attorney, but 

it does not address the circumstances in this case where a defendant contacts an 

attorney by telephone. and the officer remains in the room during that consultation. 

Although Fedorov acknowledges that the Sixth Amendment is not implicated in 

this case, he nonetheless argues that the rule provides the exact same right to 

private consultation as under the Constitution. We disagree. 

6 
State v. Fedorov (Roman), No. 90939-3 

· .. Washington cases have consistently held that the rule-based right to counsel 

is more limited than its constitutional counterpart. For example, the rule "require[s] 

more an opportunity, rather than actual communication with an attorney." City of 

. . 

Airway Heights v. Dilley, 45 Wn. App. 87, 93, 724 P.2d 407 (1986) (repeated but 

unsuccessful attempts to contact attorney satisfies CrR 3.1 ). The rule also does not 

provide a right to access counsel of one's own choice. City of Seattle v. Sandholm, 

65 Wn. App. 747, 751, 829 P.2d 1133 (1992) (CrRLJ 3.1 satisfied when defendant 

had opportunity to speak with public defender, but not own counsel). And we have 

held that the right to counsel under former JCrR 2.11 (1973) does not permit a 

defendant to delay BAC testing while waiting for an attorney to arrive. State v. 

Staeheli, 102 Wn.2d 305, 309, 685 P.2d 591 (1984).3 

We have previously addressed situations where the right to private 

consultation with counsel is implicated. In State v. Cory, 62 Wn.2d 371, 382 P.2d 

1 019 (1963 ), we reversed a conviction and dismissed the prosecution where the 

sheriff's office installed a listening device in the room where the defendant and his 

counsel conversed. We held that such intentional eavesdropping violated the Sixth 

Amendment right to counsel. More recently, in State v. Pefia Fuentes, 179 Wn.2d 

808,819,318 P.3d 257 (2014), we reemphasized our concerns over illegal 

3 Staeheli involved a review of license revocation under the implied consent statute. The 

case implicated former JCrR 2.11, the predecessor rule to CrR 3.1 and CrRLJ 3 .1. 

7 
State v. Fedorov (Roman), No. 90939-3 

intrusion into private attorney-client communications where police intentionally 

wiretapped the defendant's telephone conversations with his attorney in order to 

gather incriminating evidence for possible additional criminal charges. We 

declined, however, to adopt a per se rule requiring automatic reversal, holding 

instead that such eavesdropping was presumed prejudicial unless the State can 

prove beyond a reasonable doubt that the eavesdropping did not result in such 

prejudice. 

The concerns in Cory and Pena Fuentes are inapposite to this case. Both 

those cases involved the Sixth Amendment right to counsel, not the limited rulebased right at issue here. Factually, there has not been any showing in this case that 

Trooper Durbin remained in the room with the intent of gaining more information 

for use in the prosecution, a far cry from the intentional eavesdropping and 

wiretapping in Cory and Pena Fuentes. Nor has there been any showing that 

Trooper Durbin actually heard the conversation between Fedorov and Andrewsthe unchallenged findings are that Trooper Durbin did not recall hearing anything. 

And Trooper Durbin obtained no evidence by being in the room. 

The more analogous case to the present one is Koch, on which the Court of 

Appeals primarily relied. Koch presented two consolidated cases: in both cases 

officers brought in the arrestees for BAC testing; in both cases a police officer 

remained nearby while the defendant spoke to counsel during their CrRLJ 3.1 

8 
State v. Fedorov (Roman), No. 90939-3 

consultation; in both cases the defendant later challenged the charges on the 

grounds that they received inadequate access to counsel. Defendant Hanson spoke 

to counsel with the arresting officer 5 to 10 feet away, separated by a brick wall 

with an open window. The officer testified that he could hear Hanson speaking but 

could not make out any of her words. Defendant Koch was placed in a room 

approximately 30 feet wide by 50 feet long. The arresting officer remained in the 

room approximately 10 to 15 feet away. The officer also testified that he could 

hear Koch speak but could not make out any words unless Koch spoke loudly. 

Koch's counsel, like Fedorov's, chose to ask only yes/no questions. Koch, 53 Wn. 

App. at 355. 

The Koch court began its analysis by acknowledging that the right to counsel 

under CrRLJ 3.1 is a limited one. It distinguished an Arizona case, State v. 

Iiolland, 147 Ariz. 453, 711 P.2d 592 (1985), in part because neither Hanson nor 

Koch made a specific request for counsel, nor did either defendant articulate 

specific prejudice that resulted from having the arresting officers nearby. The court 

held that because neither defendant had requested additional privacy, their right to 

counsel under CrRLJ 3.1 was not violated. It concluded the opinion by noting: 

It does not necessarily follow, however, and we do not mean to 

imply, that in every case where such a request is made, the police 

must grant increased privacy. This may depend on a number of factors 

such as the unique security and safety problems presented by a 

particularly uncooperative, intoxicated defendant. 

9 
State v. Fedorov (Roman), No. 90939-3 

Koch, 53 Wn. App. at 358 n.7. 

Even in this case, where complete privacy was requested, we find Koch's 

analysis persuasive. Although we emphasize that police should provide as much 

privacy as possible during such consultations, that privacy is balanced against 

legitimate safety and practical concerns. When analyzing alleged violations, a 

reviewing court looks to a number of factors and makes a case-by-case 

determination under the totality of the circumstances. There is no exclusive list, but 

these factors include concerns for the safety of police, prevention of harm to police 

property, the need to comply with testing protocols, and the physical setting where 

the events take place. Of special concern may be the safety of the arrestee: 

arrestees can pose dangers to themselves, be in danger from substances they may 

have taken, or have pressing medical conditions both related and unrelated to the 

crime of arrest. And if police afford lesser privacy to an arrestee, evidence of 

intentional intimidation or eavesdropping by police meant to undermine the 

arrestee's rule-based right to consultation would weigh toward finding a violation 

ofCrR 3.1. 

In this case we find no violation of CrR 3 .1. Trooper Durbin had legitimate 

reasons for remaining in the room during Fedorov's telephone conversation with 

counsel: Fedorov was uncooperative at the time of arrest, and therefore Trooper 

10 
State v. Fedorov (Roman), No. 90939-3 

Durbin had legitimate concerns about leaving Fedorov alone. The layout of the 

Fife jail only increased these concerns because giving Fedorov complete privacy 

would have required Trooper Durbin to lock himself out of the jail and away from 

his arrestee. Trooper Durbin was also required by statute to observe Fedorov for 15 

minutes prior to administering the BAC test, something he could not have done if 

he were outside the windowless jail. Trooper Durbin also afforded Fedorov 

sufficient privacy by moving to the other side of the room, out of earshot, and the 

record contains no evidence that Durbin interfered, or even so much as paid 

attention to, Fedorov's conversation. Finally, Andrews testified that he fully 

informed Fedorov of his rights under the implied consent law and the 

consequences if he declined to take the BAC test. We find no rule violation. 

CONCLUSION 

The rule-based right to counsel in CrR 3.1 is a limited one. It is not 

coextensive with the Sixth Amendment right to counsel. As such, the right to 

private consultation with counsel is to be weighed against legitimate safety and 

practical concerns. Under these facts, Trooper Durbin afforded Fedorov sufficient 

11 
State v. Fedorov (Roman), No. 90939-3 

privacy under the circumstances. The Court of Appeals is affirmed. 

WE CONCUR: 

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