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### IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF \VASHINGTON, ) ) 

### Respondent, ) ) 

### v. ) ) 

### ROMANMIKHAILOVICHFEDOROV, ) ) Petitioner. ) 

### --------.) No. 90939-3
EnBanc

Filed 

### AUG 0**~** 

### 2015 JOHNSON, J.-. This case involves private consultation with counsel in the context ofCrR 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 ofadministering 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 Fifejail, citing safety concerns and his need to perform a**15~minute** 

### observation periodbefore administering the BAC test. The trooper stood out ofearshot at the far side ofthe room. Fedorov and his attorney chose to converse only in yes/no questions, fearing Fedorov wouldblurt outState v. Fedorov (Roman), No. 90939-3 something incriminating. Fedorov argues that the presence ofthe trooper in the
room violated his rule-based tightto counsel because only with absolute privacy
can·the right to counsel be effective. We holdthatthe rule-based rightto counsel does notprovide for a rightto absolute privacy for conversations between attorney and client. The rule-based rightto counsel in CrR 3.1 and CrRLJ 3.1,1by its ownterms, provides only an opportunity to contact an attorney. Once contacted, privacy betweenthe arrestee and attorney may be balanced against legitimate safety andpractical concerns, and challenges alleging such violations are reviewed under the totality ofthe 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) nearFife. Durbinpursued;**t~e** car accelerated to 130 mph, avoiding traffic by driving onthe far right shoulder and then suddenly exiting I-5, running several red lights. The car, nowtraveling the wrong way down Pacific Avenue, turned offits lights and drove into a parking lot. Trooper Durbin cornered the car and directed the occupants to exit. A passenger quickly exitedthe vehicle. The driver, Fedorov, exited slowly, resisting

1CrRLJ 3.1, applicable in courts oflimitedjurisdictions, is coextensive with CrR 3.1. As a matter ofconvenience, generic references to this rule-based right inthis opinion are to CrR 3.1. 2State v. Fedorov (Roman), No. 90939-3 Trooper Durbin's directions to lie flat onthe ground. Durbin observed in Fedorov signs ofintoxication, including bloodshot eyes andpoor coordination. He arrested Fedorov, readhim his

### Miranda2 rights, and transported himto the nearestpolice station with a BAC machine: the Fife Police Department. The Fife Police Department is also ajail, run by only one officer. The building is basically one large windowless room, variously described inthe record
as being 29 feet by 17 feet or "29 paces" by "17 paces," entered via a sallyport. VerbatimRepo'rt ofProceedings (Vol. 1 & 2) at 22. Testimony attrial statedthat officers who brought individuals to thejail for BAC testing were personally responsible for their arrestees. Entering and exitingthejail is difficult because only
one officerhas the k.ey to the sally port. A telephone is located at one end ofthe room, along with a metal loop so that arrestees can be handcuffed to that location. Atthe other end ofthe room is a washing machine and clothing for those incarcerated. TrooperDurbin asked Fedorov to take a BAC test. He readthe implied consent warnings and asked a series ofpreliminary questions. He also beganthe statutorily required 15-minute pretest observation periodbefore administering the test. After answering these questions, Fedorov asked to speakto an attorney.

---------- 2**~Miranda** v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 3State v. Fedorov (Roman), No. 90939-3 Trooper Durbin arranged for Fedorovto 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 thejail, he could not provide Fedorov with complete privacy. Durbin testified that when an arrestee asks for privacy, he would

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

privacy as he·could whilekeeping the arrestee in view. Andrews twice told Fedorov to ask Trooper Durbin for complete privacy; Durbintestifiedthathe did not recall these requests. Durbin also testified that he would nothave been able to hear Fedorov's conversation at the far side ofthe
roorn unless Fedorov spoke loudly. Andrews asked Fedorov a series ofyes/no questions buttestified b1ter at the suppression hearing thatthe yes/no format made asking certain questions unfeasible given the allotted time. Andrews did, however, inforrn Fedorov ofhis rights and the consequences ofrefusing 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. Durbintestified thathe stood by the washing machine at the other end ofthe room

4State 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 converseprivatelywith counsel. The trialjudge agreed that there was insufficient privacy afforded to Fedorov, but concluded that he suffered no prejudicebecause he was still able to freely converse with Andrews and he decided to take the BAC test anyway. Fedorov's motionto suppress was denied, and he was later convictedbyjurytrial. He appealed. Although Fedorov did not assign error to any ofthe trial court's findings, the State challenged "Findings as to DisputedFacts No. 1" because this "finding" contained an imbedded conclusion oflaw, 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 ofAppeals 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 ofthe Court ofAppeals' holding in 

### City of Seattle v. Koch, 53 Wn. App. 352, 767 P.2d 143 (1989), the court reasoned that the presence ofan officer does not necessarily deny a defendant the right to private consultation with counsel. Rather, becausethe rule-based right to counsel at this stage is limited, whether the right was violated depends on the facts and circumstances ofeach case. Concluding that there was no 

### 5Stat:e v. Fedorov (Roman), No. 90939-3 violation ofthe rule-based right to counsel, the Court ofAppeals did not address the issue ofprejudice. ANALYSIS The partiesagree thatthe Sixth Amendmentto the United States Constitution'·srightto counsel is not implicated inthis case. Ourresolutionrests exclusively on the rule-based right under CrR 

### 3.1. In relevantpart, the rule reads: (c) 

### Explaining the Availability ofa Lawyer. (1) When a person is taken into custody thatperson shall immediatelybe advised ofthe rightto a lawyer. Such advice shall be made in words easily understood, and it shall be stated expressly that aperson who is unable to pay a lawyer is entitledto have one provided without charge. (2) Atthe earliest opportunity a person in custody who desires a lawyer shall be provided access to a telephone, the telephone number ofthe public defender or official responsible for assigning a lawyer, and any other means necessary to place the person in communication withalawyer. 

### CrH.J.l; 

### see CrRLJ 3.1. Byits terms, the rule provides for the opportunityto access an attorney, but it does not address the circumstances inthis case where a defendant contacts an attorney bytelephone. andthe officer remains inthe room during that consultation. AlthoughFedorov acknowledges thatthe Sixth Amendment is not implicated in this case, he nonetheless argues thatthe rule provides the exact same rightto private consultation as under the Constitution. We disagree.

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

· ..Washington cases have consistently heldthatthe 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 ofone'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 withpublic defender, but not own counsel). And we have held that the right to counsel under former JCrR 2.11 (1973) does notpermit 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 rightto private consultation with counsel is implicated. In 

### State v. 

### Cory, 62 Wn.2d 371, 382 P.2d 1019 (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 oflicense revocation under the implied consent statute. The case implicated former JCrR 2.11, the predecessor rule to CrR 3.1 and CrRLJ 3.1. 7State v. Fedorov (Roman), No. 90939-3 intrusion into private attorney-client communications where police intentionally wiretappedthe defendant's telephone conversations withhis 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 presumedprejudicial unless the State can prove beyond a reasonable doubt that the eavesdropping did notresult in such prejudice. The concerns in 

### Cory and

### PenaFuentes are inapposite to this case. Both those cases involvedthe Sixth Amendmentright to counsel, notthe limitedrulebased right at issue here. Factually, there has not been any showing in this case that Trooper Durbin remained in the room with the intent ofgaining more information for use in the prosecution, a far cry from the intentional eavesdropping and wiretapping in 

### Cory and 

### PenaFuentes. Nor has there been any showing that TrooperDurbin actually heard the conversation betweenFedorov and Andrewsthe unchallenged findings are that Trooper Durbin did not recall hearing anything. And TrooperDurbin obtainedno evidence by being in the room. The more analogous case to the present one is 

### Koch, on whichthe Court of Appeals primarily relied. 

### Koch presented two consolidated cases: inboth 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 8State 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 brickwall with an open window. The officertestified that he could hear Hanson speaking but could not make out any ofherwords. Defendant Koch was placed in a room approximately 30 feet wide by 50 feet long. The arresting officerremained 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 

### courtbegan its analysis by acknowledging thatthe 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, theirrightto counsel under CrRLJ 3.1 was notviolated. 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 offactors such as the unique security and safety problems presented by a particularly uncooperative, intoxicated defendant. 9State 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 shouldprovide 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 offactors and makes a case-by-case determination underthe totality ofthe circumstances. There is no exclusive list, but these factors include concerns for the safety ofpolice, prevention ofharm to police property, the need to comply withtesting protocols, andthe physical setting where the events take place. Ofspecial concernmay be the safety ofthe 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 ofarrest. And ifpolice afford lesser privacy to an arrestee, evidence of intentional intimidation or eavesdropping bypolice meantto undermine the arrestee's rule-based right to consultation would weigh toward finding a violation ofCrR3.1. Inthis case we find no violation ofCrR 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 ofarrest, and therefore Trooper
10State v. Fedorov (Roman), No. 90939-3 Durbinhad legitimate concerns about leaving Fedorov alone. The layout ofthe Fifejail only increased these concerns because giving Fedorov complete privacy would have required Trooper Durbinto lock himselfout ofthejail and away from his arrestee. TrooperDurbin was also required by statute to observe Fedorov for 15 minutes priorto administering the BAC test, something he couldnothave done if he were outside the windowlessjail. Trooper Durbin also afforded Fedorov sufficientprivacy by moving to the other side ofthe room, out ofearshot, and the record contains no evidence that Durbin interfered, or even so much as paid attention to, Fedorov's conversation. Finally, Andrews testified thathe fully informed Fedorov ofhis rights underthe implied consent law andthe consequences ifhe declined to take the BAC test. We find no rule violation. CONCLUSION The rule-based right to counsel in CrR3.1 is a limited one. Itis not coextensive with the Sixth Amendmentright to counsel. As such, the right to private consultation with counsel is to be weighed against legitimate safety and practical concerns. Underthese facts, Trooper Durbin afforded Fedorov sufficient

11State v. Fedorov (Roman), No. 90939-3 privacy underthe circumstances. The Court ofAppeals is affirmed.

WE CONCUR:

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