# FILE IN CLERKS OFFICE IUPReME COURT, STATEOFWASHINGTON 

## DATEFEB 2 7**201~** 

# ·nza.rk#J C

# ."C/ CHIEFJUSrtCE



### INTHE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, ) ) Respondent, ) ) v. ) ) JONATHANNICHOLAS RODEN, ) ) Appellant. ) ) No. 87669-0 EnBanc

Filed 

## FEB 2

## 7 2014
GONZALEZ, J.--We are asked to decide whether Washington'sprivacy act protects textmessages interceptedby a detective who possessedthe intended recipient's cell phone after a warrantless seizure. A police detective spent 5to 10 minutes browsingthrough a cellphone officers took from DanielLee incidentto his arrest for possession ofheroin. The detective noticed several textmessages from JonathanRoden, respondedto Rodenwith anewtextmessage, and arranged a drug deal. Rodenwas consequently arrested. Roden contends thatthe detective's conduct violated the privacy act andthe state and federal constitutions.State v. JonathanNicholas Roden, No. 87669-0 

### We agree that Washington's privacy act was violated because a detective interceptedprivate communications withoutLee's orRoden's consent or awarrant. We reverse the Court ofAppeals' decision and Roden's conviction. BACKGROUND 

### Longviewpolice arrestedLee for possession ofheroin and seizedhis iPhone. The iPhone, which continually received calls and messages atthe police station, was handed overto Detective Kevin Sawyerwhenhe startedhis shift that evening. The police apparently did notplacethe phone in an evidence or inventory locker or otherwise secure it after Lee's arrest. Therecord does notindicate how long officers keptpossession ofthe phonebefore giving it to Detective Sawyer. Detective Sawyer lookedthroughthe iPhone for about 5 or 10 minutes and saw
a text message from a contact identified as "Z--Jon." It

### read, "I'vegot ahundred and thirty for the one-sixty I owe you from lastnight." VerbatimReport ofProceedings (VRP) (Apr. 29, 2010) at 11. Posing as Lee, Sawyer sent Z-Jon atext messagereply, asking him ifhe "neededmore." Id. 

### Z-Jonresponded, "Yeah, that would be cool. I still gotta sum, butI coulduse some more. Iprefertojustget aball, so I'monly payin' one eighty for it, instead oftwo Ts for two hundred." 

### Id. Detective Sawyer recognized thatZ-Jonwas using drug terminology, and through a series ofexchanged messages, Detective Sawyer arranged a meeting withZ-Jonpurportedly to sell him heroin. When Roden arrived for the transaction, he was arrested.

2State v. Jonathan Nicholas Roden, No. 87669-0 

### Rodenwas charged with attemptedpossession ofheroin. Rodenmovedto suppress the evidence obtained from the iPhone, claimingthe evidence was obtained inviolation ofarticle I, section7 ofthe Washington State Constitution, the privacy act, andthe FourthAmendmentto the United States Constitution. Thetrial court denied the suppressionmotion and found Roden guilty on stipulated facts. On appeal, Roden arguedthatthe detective's conductviolatedthe privacy act. The Court ofAppeals affirmed. 

### State v. Roden, 169 Wn. App. 59, 279 P.3d461 (2012), and Rodenpetitioned this court for reviewunder boththe privacy act and the state and federal constitutions. We acceptedreview. 

### State v. Roden, 175 Wn.2d 1022, 291 P.3d 253 (2012). STANDARD OF REVIEW 

### This court reviews atrial court's legal conclusions on a motionto suppress de

novo. 

### State v. Schultz, 170 Wn.2d 746, 753, 28 P.3d484 (2011) (citing

### State v. Smith, 165 Wn.2d 511, 516, 199 P.3d 386 (2009)). ANALYSIS 

### Washington'sprivacy act broadlyprotects individuals' privacyrights. 

### See ch. 9.73 RCW; 

### State v. Williams, 94 Wn.2d 531,548,617 P.2d 1012 (1980). It

### is one of the mostrestrictive electronic surveillance laws everpromulgated. 

### State v. Faford, 128 Wn.2d476, 481, 910 P.2d447 (1996) (citing

### State v. O'Neill, 103 Wn.2d 853, 878,700P.2d 711 (1985) (Dore, J., concurring inpart, dissenting in part)). The act prohibits anyone not operating under a court order from intercepting orrecording

3State v. Jonathan Nicholas Roden, No. 87669-0 

### certain communications withoutthe consent ofall parties. RCW9.73.030, .040, .090(2). Overall, the act "significantly expands the minimum standards ofthe federal statute[, Title III ofthe Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520,] and offers a greater degree ofprotectionto Washington citizens." 0 

### 'Neill, 103 Wn.2d at 879 (Dore, J. 

### concurring in part, dissenting inpart). The act states: [I]t shallbeunlawful for
...the state ofWashington, its agencies, and political subdivisions to intercept, or record any: (a) Private communicationtransmitted bytelephone, telegraph, radio, or other device betweentwo ormore individuals betweenpoints within or withoutthe state by any device electronic or otherwise designedto record and/or transmit said communicationregardless how such device is powered or actuated, without first obtainingthe consent ofall theparticipants inthe communication. RCW 9.73.030(1). 1 

### Evidence obtainedinviolation ofthe act is inadmissible for any purpose attrial. RCW9.73.050. There are four prongs weconsider when analyzing alleged violations ofthe privacy act. Theremusthavebeen (1) aprivate communicationtransmittedby a device, whichwas (2) intercepted orrecorded byuse of(3) a device designedto record and/ortransmit (4) withoutthe consent ofall parties to theprivate

1The statute provides for several exceptions that are not relevanthere. For example, police and fire departments are permittedto record incoming telephone calls. RCW 9.73.090(1). Itis also lawful to intercept oral communications when one party consents and an officerhas obtained a court order based on probable cause to believethatthe nonconsenting party has committed, is engaged in, or is aboutto commit a felony. RCW 9.73.090(2). Finally, interception or recording is permitted upon a finding by ajudgeor magistrate that there is probable cause to believe that the communication concerns enumerated criminal acts relating to controlled substances. RCW 9.73.090(5). 4State v. Jonathan Nicholas Roden, No. 87669-0 

### communication. State v. Christensen, 153 Wn.2d 186, 192, 102 P.3d789 (2004) (citing RCW 9.73.030). Atissue here is whetherthe text messages were "private communications" and ifso, whetherthey were "intercepted" withinthe meaning of the statute. We answer both questions affirmatively and do notreachRoden's constitutional arguments.2 

### A. Whether the TextMessages Were Private Communications The act does not define the word "private,"butwehave adopted the dictionary definition: '"belongingto one's self
... secret ... intended only for thepersons involved (aconversation)
...holding a confidential relationship to something
... a secretmessage: aprivate communication
... secretly: not open or in public."' State v. Townsend, 147 Wn.2d 666, 673, 57 P.3d 255 (2002) (internal quotation marks omitted) (quotingKadoranian v. BellinghamPoliceDep 't, 119 Wn.2d 178, 190, 829 P.2d 1061 (1992)). The question ofwhether aparticular communicationis private is generally a question offact, but one that may be decided as a question oflaw ifthe facts are undisputed. 

### !d. (citingState v. Clark, 129 Wn.2d 211, 225, 916 P.2d 384 (1996)). Indetermining whether a communicationis private, we considerthe subjective intention ofthe parties and may also consider other factors thatbear on the reasonableness oftheparticipants' expectations, such as the duration and subject matter ofthe communication, the location ofthe communication, and the presence of

2We acceptedreview ofanother case stemmingfrom this set offacts, and there we had occasion to consider whether atext message conversationis protectedunder article I, section7 ofthe Washington State**Con~titution.** State v. Hinton, No. 87663-1 (Wash. Feb. 27, 2014). 5State v. Jonathan Nicholas Roden, No. 87669-0 

### potential thirdparties. 

### Id. at673-74 (citing 

### Clark, 129 Wn.2d at 225-27). We will generallypresume that conversations betweentwo parties are intendedto beprivate. 

### State v. Modica, 164 Wn.2d 83, 89, 186 P.3d 1062 (2008). Roden's messages to Lee were private communications. Textmessages encompass many ofthe same subjects as phone conversations and e-mails, which have beenprotectedundertheact. 

### See Faford, 128 Wn.2d at 488; 

### Christensen, 153 Wn.2d at 200-01; 

### Townsend, 147 Wn.2d at 680. Rodenmanifested his subjective**~** 

### intentthatthe text messages wouldremainprivate by sendingthemto the cellphone ofapersonal contact. Roden did not use agroup texting function, which enables text messages to be exchanged betweenmultiple parties, or indicate in any othermanner thathe intendedto expose his communications to anyone otherthanLee. 

### See VRP (Apr. 29, 2010) at 25. Moreover, the illicit subjectmatter ofRoden'stext messages indicates thathe trusted the communicationwas secure and private. We rejectthe State's argumentthat a subjective expectation ofprivacy in atext message conversation is unreasonable because ofthe possibilitythat someone could intercepttextmessages bypossessing another person's cell phone. Inthe context of
new communications technology, wehave continually held thatthe merepossibility ofintrusionwill not strip citizens oftheirprivacyrights. 

### Faford, 128 Wn.2d at485 (citing

### State v. Young, 123 Wn.2d 173, 186, 867 P.2d 593 (1994); 

### State v. Myrick, 102 Wn.2d 506, 513-14,688P.2d 151 (1984)); 

### see also Townsend, 147 Wn.2d at 678.

6State v. Jonathan Nicholas Roden, No. 87669-0 

### Sophisticated textmessagingtechnology enables "[l]ayered interpersonal comnmnication[s]" that reveal"intimate
...thoughts and emotions to those who are expectedto guardthem from publication." State v. Patino, No. P1-10-1155A, slip op. at 83, 70 (R.I. Super. Ct. Sept. 4, 2012). Textmessaging is an increasinglyprevalent mode ofcommunication and text messages are raw and immediate communications. State v. Hinton, No. 87663-1, slip op. at 16 (Wash. Feb. 27, 2014). Individuals closely associate with and identify themselves bytheir cellphonenumbers, suchthat the possibility that someone else will possess an individual'sphone is "unreflective of contemporary cell phone usage." Patino, slip op. at 70. Thepossibility that anunintendedparty canintercept atextmessage due to his

or herpossession ofanother's cell phone is not sufficientto destroy areasonable expectation ofprivacy in such amessage. The Court ofAppeals belowrelied onState

v. Wojtyna, 70 Wn. App. 689, 855 P.2d 315 (1993), where it notedthat one who transmits a messageto apager '"runsthe risk thatthe message will bereceivedby whomever is inpossession ofthe pager."'70 Wn. App. at 694 (quoting UnitedStates

v. Meriwether, 917 F.2d 955, 959 (6th Cir. 1990)). The Court ofAppeals' reliance on Wojtyna overlooks the significant differences betweenpager and textmessage communications. There, the courtheldthatWojtyna's phone number, as displayed on
apagerthat he messaged, was not aprivate communicationundertheprivacy act. 

### !d. at 695-96. The back-and-forthtext messaging conversationhere is muchmore like email exchanges and telephone calls--whichthe actplainlyprotects-thana simple

7State v. Jonathan Nicholas Roden, No. 87669-0 

### informational statementthat is sentto apager. Unlikepagers, cellphones convey substantive, often confidential information andprovide options to password-protect their contents. As text messaging increasingly becomes a substitute for more traditional forms ofimmediate communication, text messages shouldbe afforded the
sameprotections from interceptionthat are recognized for telephone conversations. 

### See State v. Clampitt, 364 S.W.3d 605, 611 (Mo. Ct. App. 2012) (noting that "society's continued expectation ofprivacy in communications made by letter or phone call demonstrates its willingness to recognize a legitimate expectation of privacy inthe contents oftext messages"). We have repeatedly affirmed traditional expectations ofprivacy in the context ofnew communications technology notwithstanding somepossibility ofinterception. We find 

### Townsendmore instructivethan 

### Wojtyna. In 

### Townsend, a detective set up a sting operationby establishing an Internet e-mail account and anICQ chatroom account using a screenname ofAmber, a fictitious 13-year-old girl. 147 Wn.2d at 674. Townsend began communicatingwithAmber, sending e-mails and ICQ messages containing graphic discussions about sexualtopics. 

### !d. at 671. The detective eventually made arrangements with Townsendto meetAmber at a motel to have sex. 

### !d. We heldthatTownsend's "subjective intentionthathis communications
wereprivate was [not] unreasonable underthe circumstances," eventhough "interception ofthese messages was apossibility." 

### !d. at 674. We concludedthatthe

8State v. Jonathan Nicholas Roden, No. 87669-0 

### communications wereprivatebutthatTownsend consentedto therecording and therefore the act was not violated. Id. at 678-79. Similarly, inFaford, whenthe Fafords' neighborpurchased apolice scanner and eavesdropped ontheir cordless telephone conversations about a marijuanagrow operation, we were presentedwiththe question ofwhether the actprotectedphone calls made usingthe then-newtechnology ofcordless telephones. 128 Wn.2d476. We noted that "[d]efendants
... clearly intendedthe informationrelated intheir telephone conversations to remain confidential
...regardless oftheir use ofa cordless telephone instead ofa conventionaltelephone," and we found thatthe scanner interceptionviolatedthe privacy act. Id. at 485, 488. In Christensen, we held it was a violation ofthe privacy act for awomanto listento her daughteesphone conversationusing the speakerphone function ofthe base unit ofthe cordless phone. 153 Wn.2d 186. The ease withwhichthe interception couldtakeplace did not defeatthe daughter's reasonable expectation of privacy in herphone call. !d. at 193. Like in Townsend, Faford, and Christensen, it is evidentthatRoden intended for his communications to remainprivate, and despite thepossibility ofintrusion due to the mediumhe used, Roden did notvoluntarily expose his communications to the public in a way thatremoves them from protectionunderthe act. SeeHinton, slip op. at 11-14. We have found informationwillingly impartedto an unidentified stranger falls outsidethe protection ofthe act, as do some conversations that takeplace in "the

9State v. Jonathan Nicholas Roden, No. 87669-0 

### presence ofone ormore thirdparties" in a "marketplace atmosphere." Clark, 

### 129 Wn.2d at 228. Butthe textmessages here did not involve statements voluntarilymade to strangers orroutine sales conversations on public streets. Cf Clark, 

### 129 Wn.2d at 228; Kadoranian, 

### 119 Wn.2d at 190 (concerning inconsequential nonincriminating statements made to a stranger); State v. Goucher, 

### 124 Wn.2d 778, 881 P.2d210 (1994) (voluntary statements made to a stranger). Roden'stextmessages were private communications thatthe act protects from interception. B. Whether There Was anInterception oraRecording byaDevice 

### The Court ofAppeals resolvedthis caseunder Townsend, 

### finding there was no violation oftheprivacy actbecause Rodenimpliedly consentedto the recording ofhis text messages. Roden, 

### 169 Wn. App. at 67 (notingthatRoden "anticipatedthatthe iPhone would record and store the incoming messages"). But Townsend

### turned on a different questionthanthe onepresentedhere. In Townsend, 

### weheldthat Townsend's communications to Amberwereprivate, butthatthe act was notviolated because Townsendknew e-mails are inherentlyrecorded andthus he impliedly consentedto the recording. 147 Wn.2d at 678-79. Here, the question is notwhether a recording was lawful; the question is whetherthe messages were intercepted

### underthe act. Because we find the privacy act was violated bythe interception ofthe private text messages, we do not address whetherthey were unlawfully "recorded"withinthe meaning ofthe act.

10State v. Jonathan Nicholas Roden, No.**87669~0** 

### Themessages thatRoden sentto Lee were opened, read, andrespondedto by

an officerbeforethey reached Lee. The statute does not define the term "intercept." Where there is no statutory definitionto guide us, words should be giventheir ordinary meaning. 

### See State v. Athan, 160 Wn.2d 354, 369, 158 P.3d 27 (2007) (lookingto ordinary meaning-often supplied by dictionaries-to determine whether salivaon an envelope is a "communication"withinthe scope ofthe privacy act); 

### Kadoranian, 119 Wn.2d 178 (looking to the ordinary definition of"private"). Finding the detective's actionto be an interception is consistentwiththe ordinary definition of "intercept"-to "stop
...before arrival
... or interrupttheprogress or course." WEBSTER'S THIRDNEW INTERNATIONALDICTIONARY 1176 (2002). Unlike in 

### Townsend, where the defendant communicated directly withthe officer's fictitious online profile, the detective here interceptedtextmessages directedto an actual acquaintance. We rejectthe contentionthatthe detective did not interceptthe messages becausehe was a partyto the communication. Amicus curiaeWashington Association ofProsecutingAttorneys (W APA) cites foreign case law finding that a caller cannot claim an interception ofaprivate communicationwhere that caller electedto continue aphone conversationwith an officer who answered athirdparty's phone and posed as the intended recipient ofthe call or as thatperson's accomplice. 

### See, e.g., UnitedStates v. Pasha, 332 F.2d 193, 198 (7th Cir. 1964), 

### cert. denied, 379 U.S. 839, 85 S. Ct. 75, 13 L. 

### Ed. 2d45 (1964); 

### State v. Lamontagne, 136 N.H. 575,

11State v. Jonathan Nicholas Roden, No. 87669-0 

### 618 A.2d 849 (1992). 

### Butsee UnitedStates v. ChongIn Kim, 803 F. Supp. 352 (D. Haw. 1992) (finding an unlawful interceptionwhere an officerwho possessed a suspect's phonepursuantto a statutory forfeiture provision answered it and impersonated the suspect). While a callerplacing avoice call hears the recipient's voice and has the opportunityto detect deception, sending atext is more like mailing a letter. The sender addresses mail to aparticular individual andreasonably expects the communicationto beroutedto and received bythe addressee. Reading a letter addressedto another individual certainly does notrenderthatpersonthe intended recipient, and the ordinary meaning of"intercept" would encompass opening and reading a letter in someone else's mailboxbefore they receive it. 

### See WEBSTER's, 

### supra, at 1176. WAPA also suggests thatthere was no interceptionbecause oncethe text messages reached the phone, they were in electronic storage and fell outside the scope ofthe act. 

### See Br. ofAmicus CuriaeWAPA at 12. WAPA calls to our attentionto federal cases that exclude stored electronic and wire communications from the protection ofthe federal wiretap statute. 

### UnitedStates v. Steiger, 318 F.3d 1039, 1048 (11th Cir. 2003); 

### Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107, 113 (3d Cir. 2003); 

### Konop v. Haw. Airlines, Inc., 302 F.3d 868, 876 (9th Cir. 2002). Federal cases onthis issue are not instructive giventhe significant differences betweenthe state and federal statutory schemes. The federal statute defines terms with greater technical specificity and expressly governs stored communications under

12State v. Jonathan Nicholas Roden, No. 87669-0 

### separate provisions, evidencing Congress' intentto treat communications differently based ontechnical distinctions. 

### See Steiger, 318 F.3d at 1048; 18 U.S.C. § 2510. The Washington statute does notinclude technical definitions or independentprovisions for stored communications, and we have consistently interpreted its terms broadly. 

### See, e.g., State v. Gunwall, 106 Wn.2d 54, 69, 720 P.2d 808 (1986) (concludingthat a penregister intercept comes withinthe definition ofa "private communication transmittedbytelephone"). In 

### Christensen, we declined to find that interception can Qccur only with a device separate from the one used to communicate, 153 Wn.2d at 197, and in

### Faford, werejected the trial court'snarrow definition of"transmit" and expressly chose an alternative andbroad definition "[i]n light ofthe breadth ofthe act's purpose," 128 Wn.2d at483-84. Detective Sawyer did notmerely see a message appear onthe iPhone. Instead, hemanipulatedLee'sphone, responded to aprevious text from Roden, and interceptedthe incoming textmessages before they reachedLee. Whether it is also a violation ofthe actto access text messages thathave already beenreceived bythe intendedrecipient and remain in storage is not the questionbefore us today. We decline to find there was no interceptionhere based onthe fact thatthe messages were in electronic storage whenthey reachedthephone-atechnicality thathas no relevance under our state statute.

13State v. Jonathan Nicholas Roden,No. 87669-0
CONCLUSION 

### Whenthe detective interceptedRoden's textmessages to Lee, officers had alreadybookedLee intojail, andthe State does not argue that exigent circumstances required awarrantless search ofthe phone. There is simply no evidencethatthere
was insufficienttime for law enforcement officials to seek a court order. We find that the privacy act was violatedbecause the detective interceptedRoden's private communications withoutLee's or Roden's consent and without a court order. We teversethe Court ofAppeals andreverse Roden's convictionwithoutprejudice.

14State v. Jonathan Nicholas Roden, No. 87669-0

WE CONCUR:

15State 

### v. Roden (Jonathan Nicholas)

No. 

### 87669-0 WIGGINS, J. (dissenting)-The majority holds that Detective Kevin Sawyer violated Washington's privacy act, chapter 9.

### 73 RCW, when he intercepted text message communications without Daniel Lee's or Jonathan Roden's consent. I respectfully disagree. I would find that there was no interception because the text messages reached their intended destination without interruption. At issue here is whether Detective Sawyer used a device to "intercept" a private communication when he perused the stored contents of Lee's iPhone and responded to stored and incoming text messages. Resolution ofthis issue depends on statutory construction. The term "intercept" in RCW 

### 9.73.030 is subject to two reasonable interpretations: a strict construction that focuses on whether the communication was acquired during transmission, and a liberal construction that focuses on whether the communication was acquired prior to the intended recipient's cognitive receipt of the communication. Because this is a criminal statute, I would adopt the strict construction. In other words, I would find that an intercept must occur during transmission. Once a communication has arrived at its intended destination, it is no longer subject to interception. This interpretation gives effect to the legislature's intent at the time section 

### .030 was enacted and the plain language ofthe statute. ANALYSIS Washington's privacy statute provides, in pertinent part:

(1) Except as otherwise provided in this chapter, it shall be unlawful for any individual, partnership, corporation, association, or the state ofNo. 87669-0 (Wiggins, J., dissenting) Washington, its agencies, and political subdivisions to intercept, or record any: (a) Private communication transmitted by telephone, telegraph, radio, or other device between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication. RCW 9.73.030. By its terms, section .030 prohibits the use of any device to intercept or record any private communication without the prior consent of all participants. There are statutory exceptions to this prohibition, although none are at issue in the current case. 1 Thus, I confine my analysis to an interpretation of section .030. I. Rules of statutory interpretation Our fundamental objective in construing a statute is to ascertain and carry out the legislature's intent. State 

### v. Sweany; 174 Wn.2d 909, 914, 281 P.3d 305 (2012); State 

### v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003). When possible, the court derives legislative intent solely from the plain language enacted by the legislature, considering the text of the provision in question, related provisions, and the statutory scheme as a whole. State 

### v. Ervin, 169 Wn.2d 815, 820, 239 P.3d 354 (2010); Dep't ofEcology

### v. Campbell 

### &Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). Where statutory language is unambiguous, we give effect to the ordinary meaning of the words in the statute. 

### J.P., 149 Wn.2d at 450.

1 This case potentially implicates RCW 9.73.090(2) and RCW 9.73.230(1), provisions that specifically allow law enforcement officers to intercept and record private conversations concerning controlled substances under certain circumstances. But because the parties do not briefthese issues, Iwill not address them.
2No. 87669-0 (Wiggins, J., dissenting) Our focus in the current case is the meaning of "intercept" within the context and purpose of RCW 9.73.030. There are numerous rules of statutory construction, but of particular relevance here are: (1) we should adopt the interpretation that best advances the perceived legislative purpose and (2) criminal statutes must be strictly construed. Bennett v. Hardy, 113 Wn.2d 912, 928, 784 P.2d 1258 (1990); State v. Clark, 96 Wn.2d 686, 690, 638 P.2d 572 (1982).

II. A strict interpretation best advances the legislature's intent at the time the provision was enacted Our challenge in this case is to interpret a statute adopted almost 50 years ago and apply it to electronic communications devices not anticipated when the statute was passed. 2 To do this, we examine the purpose of the statute, taking into account the historical background at the time it was enacted. State 

### v. A.N. W Seed Corp., 116 Wn.2d 39, 45, 802 P.2d 1353 (1991). A review of the political, social, and legal atmosphere in 1967 supports the interpretation that interception occurs only during transmission of the message. When our legislature enacted section .030, the nation was concerned with increasing use of electronic eavesdropping, wiretapping, and informers wired to record private communications. Thus, it appears that our legislature enacted section .030 to limit the circumstances under which electronic eavesdropping and

2 Today, many, if not most, Americans use text messages to communicate with each other. Yet when it comes to protecting the privacy of these messages, courts struggle to apply outdated statutes to the realities of this new technology. I share the concern of the First, Ninth, and Eleventh Circuits about the judicial interpretation of a statute written prior to the widespread usage of a technology in a case involving purported interceptions of a communication using that technology. See In re Pharmatrak, Inc. Privacy Litig., 329 F.3d 9, 21 (1st Cir. 2003); United States v. Steiger, 318 F.3d 1039, 1047 (11th Cir. 2003); Konop v. Haw. Airlines, Inc., 302 F.3d 868, 874 (9th Cir. 2002).
3No. 87669-0 (Wiggins, J., dissenting) wiretapping would be permitted. "Electronic eavesdropping" refers to the "use of hidden microphones, recorders, and any other mechanical or electronic means of ongoing capturing communications, other than wiretapping (tapping into telephone conversations)." GINA STEVENS 

### &CHARLES DOYLE, CONGRESSIONAL RESEARCH SERV., PRIVACY: AN OVERVIEW OF FEDERAL STATUTES GOVERNING WIRETAPPING AND ELECTRONIC EAVESDROPPING CRS-1 n. 1 (2003) (emphasis added). Accordingly, "interception," as it is used in the statute, almost certainly refers to the use of a device to listen to or capture communications during transmission. Prior to enactment of section .030, no law prevented a Washington citizen or public officer from using electronic equipment to eavesdrop. See 1 HousE JOURNAL, 40th Leg., Reg. Sess., at 2031 (Wash. 1967).3 The only statutory prohibition against eavesdropping was a 30-year-old section in the federal Communications Act of 1934 that had been interpreted by courts to proscribe wiretapping. 47 U.S.C. 

### § 605(a) ("[n]o person not being authorized by the sender shall intercept any . . . communication [by wire] and divulge or publish the existence, contents, substance, purport, effect, or meaning ofsuch intercepted communication to any person").4 But,

3 The House Journal reports that Representative Backstrom asked, "I have continuously offered my objections because of eavesdropping. Do we have it clear that this bill precludes eavesdropping?" Representative Heavey responded, "Right now we have no laws that prevent eavesdropping. Somebody can eavesdrop if they have the equipment to do it. This law prevents them from doing it, but it does permit, in rare instances with court approval, the prosecuting attorney or attorney general to eavesdrop or tap lines. I also want to point out that this in no way circumvents the federal laws of wiretapping because they take precedence over our laws." HousE JoURNAL at 2031. 4 The issue ofwiretapping reached the United States Supreme Court in Olmsteadv. United States, 277 U.S. 438, 48 S. Ct. 564, 72 L. Ed. 944 (1928), overruled in part by Katz 

### v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). Olmstead was a Seattle bootlegger whose Prohibition Act conviction was the product of a federal wiretap. 4No. 87669-0 (Wiggins, J., dissenting) section .605 did not ban the use of electronic devices to surreptitiously record and transmit private conversations, and it applied only in federal court proceedings. Schwartz v. Texas, 344 U.S. 199, 73 S. Ct. 232, 97 L. Ed. 231 (1952) (section .605, which bars admission of evidence obtained by means of wiretapping and intercepting telephone messages, does not apply to state court proceedings); accord State 

### v. Jennen, 58 Wn.2d 171, 173, 361 P.2d 739 (1961 ). One year before our legislature enacted RCW 9.73.030, the United States Supreme Court held that the Fourth Amendment to the United States Constitution does not protect against undercover agent interceptions or recordings of private communications. See Lewis 

### v. United States, 385 U.S. 206, 87 S. Ct. 424, 17 L. Ed. 2d 312 (1966) (evidence obtained by recording device hidden on informant who went to defendant's home to purchase marijuana admissible); Hoffa 

### v. United States, 385 U.S. 293, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966) (defendant who allows confidential government informant into hotel suite cannot claim Fourth Amendment By a five-to-four vote, the Court held that the tapping was not a search or seizure in violation of the Fourth Amendment as there was no seizure of anything tangible and there was no entry on the premises of the defendants. !d. at 466. Chief Justice William H. Taft, writing for the majority, pointed out that Congress was free to provide protection, which the Constitution did not. /d. at 465. In the post-Olmstead period, there were at least seven bills aimed at limiting the use of wiretapping introduced in Congress. H.R. 4139, 71 st Gong., 1st Sess. (1929); H.R. 5416, 71st Gong., 1st Sess. (1929); S. 6061, 71st Gong., 3d Sess. (1931); H.R. 23, 72d Gong. 1st Sess. (1932); H.R. 5305 72d Gong., 1st Sess. (1932); H.R. 9893, 72d Gong., 1st Sess. (1932); S. 1396, 72d Gong., 1st Sess. (1932); Robert Baronsky, Recent Federal Case, 36 WASH. L. REV. 93, 95 (1961). None passed. In 1934, Congress passed the federal Communications Act, which expanded the Radio Act of 1927's proscription against intercepting and divulging radio communications so as to include intercepting and divulging radio orwire communications. See 47 U.S.C. § 605. The federal CommunicationsAct neither expressly condemned law enforcement interceptions nor called for the exclusion of wiretap evidence, but it was interpreted by courts to encompass both. Nardone 

### v. United States, 302 U.S. 379, 58 S. Ct. 275, 82 L. Ed. 314 (1937); Weiss 

### v. United States, 308 U.S. 321, 60S. Ct. 269, 84 L. Ed. 298 (1939).
5No. 87669-0 (Wiggins, J., dissenting) protection); Osborn 

### v. United States, 385 U.S. 323, 87 S. Ct. 429, 17 L. Ed. 2d 394 (1966) (evidence obtained from recording device placed on police informant who applied for job admissible). The Court explained that the Fourth Amendment does not protect "a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it." Hoffa, 385 U.S. at 302. Scholars at the time commented on the breadth of these decisions, pointing out that almost any secret-agent tactic could be justified under the opinions' open-ended reasoning. Note, Judicial Control of Secret Agents, 76 YALE L.J. 994, 996 (1967) (writing that the decisions and rationale in Hoffa, Osborn, and Lewis imposed no limitations whatever on the use of police spies). Simultaneously, practitioners, scholars, and policy makers vigorously debated the use ofwiretapping, eavesdropping, and informers wired to record conversations. See Comment, Eavesdropping Orders and the Fourth Amendment, 66 COLUM. L. REV. 355, 355 (1966). On the one side, the practice was condemned as '"dirty business"' and a harbinger of a police state. 

### /d. On the other, it was seen an effective law enforcement tool. See Michael 

### J. Murphy, Judicial Review of Police Methods in Law Enforcement, The Problem of Compliance by Police Departments, 44 TEX. L. REV. 939, 946 (1966) (New York city police commissioner during the 1960s states that wiretapping is one of the most effective weapons in the arsenal of law enforcement). Columbia Law ProfessorAlan Westin wrote in 1966: The problem that cries out for legislation most acutely is that of wiretapping, electronic eavesdropping, and optical surveillance. At the moment, the chaotic state of existing federal and state laws and the continued legislative inaction in this area have led to public concern whether law can ever come to grips with the problem. There has been
6No. 87669-0 (Wiggins, J., dissenting)

no congressional action since the passage of the Communications Act of 1934, and less than a dozen states have passed modern statutes attempting to deal with the use of physical surveillance technology. Alan F. Westin, Science, Privacy, and Freedom: Issues and Proposals for the 1970's, Part II: Balancing the Conflicting Demands of Privacy, Disclosure, and Surveillance, 66 COLUM. L. REV. 1205, 1223 (1966) (footnotes omitted). In this context, the Washington State Legislature enacted RCW 9.73.030- .080. One year later, Congress passed the wiretap act (18 U.S.C. 

### §§ 2510-2522, commonly referred to as Title Ill of the Omnibus Crime Control and Safe Streets Act of 1968) in response to congressional investigations and published studies finding that government agents and private individuals were wiretapping without the consent ofthe parties or legal sanction. In summary, at the time section .030 was enacted, the country was concerned with electronic eavesdropping and wiretapping. Listening devices were becoming more available to all persons at nominal costs. Lester B. Orfield, Wiretapping in Federal Criminal Cases, 42 TEX. L. REV. 983 (1964); see also Westin, supra (development and adoption of devices have enormously expanded the capacity of public and private authorities to place the individual under surveillance). Our state legislature was similarly concerned. See HousE JOURNAL at 2031. Accordingly, "intercept" in our statute most likely refers to wiretapping and eavesdropping activities-that is, any attempt by means of any contrivance to listen to or obtain the contents of a private communication while parties are communicating. See, e.g., State v. Cory, 62 Wn.2d 371, 372, 382 P.2d 1019 (1963) (conversations between defendant and attorney were eavesdropped on through
7No. 87669-0 (Wiggins, 

### J., dissenting) microphone installed in conference room); State 

### v. Drew, 70 Wn.2d 793, 425 P.2d 349 (1967) (officers placed defendant and third person together in cell with hidden microphone, and through use of microphone, police learned that defendant claimed to know location of body; see also Note, Congressional Wiretapping Policy Overdue, 2 STAN. L. REV. 744, 761 (1950) (suggesting that "wiretapping" be defined to include any attempt by means of any device to listen to the contents of a telephone message while the parties are talking). It bears mentioning that there is no indication that our legislature was concerned with surreptitious access to stored communications. Indeed, the technology to store communications on mobile devices was largely nonexistent in 1967, making it highly unlikely, if not impossible, that the legislature could have been referring to the acquisition of electronic communications after the messages had been received and stored. Likewise, there is no indication that the legislature intended to protect an intended recipient's ability to access a communication. To reiterate, the statute was intended to prohibit electronic eavesdropping, where the eavesdropper overhears an ongoing communication, regardless of whether the intended recipient receives the communication. Accordingly, "intercept" most likely refers to acquisition of a communication during transmission.

Ill. A strict interpretation comports with the plain meaning of "intercept" and makes clear what conduct is criminal The majority adopts a liberal interpretation of "intercept." It apparently reads "before arrival" broadly as meaning "before the intended recipient accesses the communication." Because this is a criminal statute, I would adopt a strict

8No. 87669-0 (Wiggins, J., dissenting) construction. That is, I would read "before arrival" as meaning simply "before a message reaches its intended destination," thereby providing clarity as to what actions constitute an unlawful intercept. See State 

### v. Bell, 83 Wn.2d 383, 388, 518 P.2d 696 (1974) (in criminal cases, fairness dictates that statutes should be literally and strictly construed; courts should refrain from using possible but strained interpretations). The statute does not define "intercept." A nontechnical term left undefined in a statute is given its plain and ordinary meaning, as defined in a standard dictionary. 5 State v. Sullivan, 143 Wn.2d 162, 174-75, 19 P.3d 1012 (2001); State 

### v. Athan, 160 Wn.2d 354, 369, 158 P.3d 27 (2007). Thus, as the majority notes, "intercept" means to "stop

... before arrival

... or interrupt the progress or course." Majority at 11 (alterations in original) (citing WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1176 (2002)). In other words, an interception must occur "before arrival" or before a message has reached the end of its journey. The intercepting act must interrupt a message's course or progress, meaning it must halt or interfere with a message while the message is moving, proceeding, or advancing from one point to another. After a message has arrived at its intended destination, there can be no interception. This is a strict construction ofthe statute.

5 "Intercept" in RCW 9.73.030 is likely a technical term. Because technical terms are not readily susceptible to dictionary definitions, I do not agree that it is appropriate to discern the meaning of a technical term by referencing its dictionary definition. See Tingey v. Haisch, 159 Wn.2d 652, 658, 152 P.3d 1020 (2008) (when technical term used, term should be given its technical meaning rather than general dictionary meaning). But even adopting the dictionary definition, the majority's interpretation is incorrect.
9No. 87669-0 (Wiggins, J., dissenting) By requiring that the intended recipient read or hear the message, the majority reads into the statute requirements that do not exist. Rest. Dev., Inc. 

### v. Cananwi/1, Inc., 150 Wn.2d 674, 682, 80 P.3d 598 (2003) ("court must not add words where the legislature has chosen not to include them"). There are also practical difficulties inherent in focusing on the intended recipient's cognitive receipt. There is no assurance that a recipient will ever open and read a message. Some missives are discarded immediately upon receipt, some left unopened indefinitely, and some arrive in an indiscernible or corrupted condition. It is also possible that a recipient will receive a message but be unable to understand, read, or hear the message due to language barriers, or physical or mental disability. Thus, section .030's prohibition against intercepting and recording understandably focuses on a defendant's actions, as opposed to outcomes that may be outside a defendant's control. To make clear what conduct is criminal, I would interpret the statute strictly to prohibit the acquisition or diversion of communications during transmission. Notably, this case arises under Title 9 RCW, titled "Crimes and Punishments." Any person who intercepts, records, or divulges private communications without the consent of the communicating parties is guilty of a misdemeanor. See RCW 9.73.030, .080. The majority would hold that Detective Sawyer is guilty of a misdemeanor for reading and responding to the text messages. I cannot agree. Indeed, adopting the majority's reasoning, any passerby who happens upon a lost or misplaced cell phone violates the privacy act if, during the time he or she possesses the phone, the phone receives a text and the possessor happens to see the incoming message. And hapless is the concerned citizen who proactively sends
10No. 87669-0 (Wiggins, J., dissenting)

a message to a stored contact in an effort to return the phone to its rightful owner, for he or she has almost certainly committed a misdemeanor. See RCW 9.73.080; see a/so City of Seattle 

### v. Fuller, 177 Wn.2d 263, 270, 300 P.3d 340 (2013) (constructions that yield unlikely, absurd, or strained consequences must be avoided). The majority's broad interpretation would reach activity that is not clearly covered by the statute. I would not expect an ordinary citizen to read "intercept" as including the act of acquiring a communication after it has reached its intended destination. "Criminal statutes must be construed in the manner in which an ordinary citizen would understand their terms." State v. Johnson,

_ Wn.2d _, 315 P.3d 1090, 1104 (2014) (Wiggins, J., dissenting); State 

### v. Shipp, 93 Wn.2d 510, 515- 16, 610 P.2d 1322 (1980) (citing Winters 

### v. New York, 333 U.S. 507, 515, 68 S. Ct. 665, 92 L. Ed. 840 (1947)); City ofSeattle v. Pullman, 82 Wn.2d 794, 797, 514 P.2d 1059 (1973). We should not hold persons criminally liable where it is not clear what is forbidden; we cannot require citizens to puzzle out the meaning of obscure language in a statute. Thus, I would adopt a strict interpretation of the statute and require that the interception occur before arrival, during transmission. 6

6 The federal electronic communications privacy act defines "intercept" as the "aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." 18 U.S.C. § 251 0(4). Like our statute, this definition does not explicitly require that an intercept occur during transmission. However, federal courts have interpreted the term "intercept" to mean any acquisition of a communication '"contemporaneous with transmission."' Theofel v. Farey-Jones, 359 F.3d 1066, 1077-78 (9th Cir. 2004) (no interception when defendant gained unauthorized access to plaintiff's e-mails, which were already delivered and stored electronically) (quoting Konop, 302 F.3d at 878 (fraudulent access to stored communication does not constitute an "interception"; interception requires access contemporaneous with transmission); Steve Jackson Games, Inc. v. U.S. Secret Serv., 36 F.3d 457, 461-62 & n.7 (5th Cir. 1994) 11No. 87669-0 (Wiggins, J., dissenting) IV. Related provisions support a strict interpretation Other provisions of chapter 9.73 RCW indicate that the legislature did not intend to criminalize accessing an electronic communication after it had reached its intended destination. RCW 9.73.020, which by its terms also applies after a communication has reached its destination, prohibits opening "any sealed message, letter or telegram intended for another person ...." But, the legislature clearly intended this provision to apply to tangible documents, as opposed to electronic communications. This provision was enacted in 1909, long before the advent oftext message technology. Moreover, section .020 refers to letters and telegrams, which are tangible objects, not digitally stored and displayed missives. When the legislature acted to protect private electronic communications, it adopted entirely different language, prohibiting recording and intercepting, instead of prohibiting opening sealed messages. RCW 9.73.030. Thus, I find the majority's letter analogy unconvincing and would instead construe section .030 as prohibiting the acquisition of private communications during transmission.

(Congress did not intend for "interception" to apply to e-mail stored on an electronic bulletin board); United States 

### v: Meriwether, 917 F.2d 955, 959-60 (6th Cir. 1990) (access to stored information through the use of another's pager does not constitute an "interception"); United States v. Reyes, 922 F. Supp. 818, 836-37 (S.D.N.Y. 1996) (same); Wesley Col/. 

### v: Pitts, 974 F. Supp. 375, 385 (D. Del. 1997) (no "interception" occurs when the contents of electronic communications are acquired unless contemporaneous with their transmission); Cardinal Health 414, Inc. 

### v: Adams, 582 

### F. Supp. 2d 967, 979-81 (M.D. Tenn. 2008) (same); see a/so Adams v. City ofBattle Creek, 250 

### F.3d 980, 982 (6th Cir. 2001) (use of a "'clone"' or duplicate pager to simultaneously receive the same message as a target pager is an "interception"); Brown 

### v: Waddell, 50 F.3d 285, 294 (4th Cir. 1995) (same).
12No. 87669-0 (Wiggins, J., dissenting) CONCLUSION I would strictly construe section .030 and find that there was no interception because the detective viewed and responded to text messages after the texts had arrived at their intended destination-the iPhone. This interpretation of "intercept" considers the purpose of the statute, the plain language enacted by the legislature, related provisions, and the statutory scheme as a whole at the time it was enacted. To conclude, I find no violation of Washington's privacy act. And, I would find no violation of state or federal constitutional provisions because Roden lacks standing to challenge the alleged search of Lee's iPhone. See State v. Hinton, No. 87663-1 (Wash. Feb. 27, 2014) (J.M. Johnson, J., dissenting). Thus, I would affirm Roden's conviction.

13No. 87669-0 (Wiggins, J., dissenting) For these reasons, I dissent.

14