IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON, Respondent,

v. B.K.. DOB: 03/20/96 Appellant. No. 68174-5-1 DIVISION ONE
UNPUBLISHED OPINION FILED: March 11. 2013 

### Spearman, A.C.J.

—B.K., ajuvenile, appeals his adjudication forpossession of a 

### stolen vehicle, arguing that thetrial court erroneously failed to suppress thetestimony of 

### A.R., who testified about B.K.'s confession only after being illegally recorded t£ffl§ng^9. about the confession. Because A.R.'s testimony was not about the recorded ^5 statements, but instead consisted of his independent recollections of facts obtained c^rn 

### before anyrecording, there was no errorin admitting thetestimony. Weaffirm. ^ ->o FACTS On June 11, 2011, Martin Ross awoke to find his blue Prius missing. Ross later 

### realized the spare keyfrequency operated button (FOB), which he keptin a kitchen drawer, was also missing. Ross and hiswife had asked his neighbor's son to watch their house while they were out oftown. Upon returning, it was clear the neighbor's son 

### \o '&"'No. 68174-5-1/2
had entertained several friends at their house while they were away. Ross reported his suspicions about the neighbors' son to the police. 

### OnJune 16, OfficerWilliam Anderson1 the stolen Prius near NorthgateMall and attempted to stop the car in the mall parking lot. AfterAnderson activated his lights and siren several times, the car eventually pulled into a parking spot. The car's doors 

### opened and the occupants started to get out. AfterAnderson asked them to get backin the car, the three-backseat passengers remained, but the three in front ran toward Macy's. The driver, M.B., was arrested inside the mall shortlythereafter. 

### Three days later, on June 19, Officer Eric Michl drove to Safeco Field with his
son A.R. in his police car. A.R. had plans to watch the Mariners' game with friends and 

### family while Michl worked directing traffic. When Michl pulled overto park, heflashed 

### his lights, thereby activating thecamera/recording system inside thepolice car. Michl either attempted to deactivate the recording system and failed, orsimply forgot about 

### the recording, upon leaving todirect traffic. A.R. waited in his dad's patrol car. A.R. had general knowledge thatactivation ofthe lights activated the camera, butdid not think about it, and did not giveconsentto be recorded. While in the car, A.R. called his 

### girlfriend. One ofthe topics of discussion included appellantB.K.'s theft ofthe Prius. Michl later realized the recording device had been activated and listened to the 

### recording. Michl heard his son A.R. tell hisgirlfriend that B.K. had stolen a car. Michl contacted various parents, including B.K.'s father. Later that day, Michl also confronted

1All ofthe officers referred to herein, serve with the Seattle Police Department. 2No. 68174-5-1/3
his son, who disclosed all of his conversations with the appellant B.K. According to A.R.,
on June 11, 2011, he was at B.K.'s house, when B.K. admitted that he stole a Prius. B.K. said he had taken it from a house his brother's friend was watching. B.K. told A.R. he took the keys first and returned later to take the car. A.R. saw B.K. driving the Prius 

### at school the following Monday. Michl approached Officer Hossfeld,telling Hossfeld that his son had information that B.K. had stolen the Prius. A.R. gave a statement to the 

### police. Hossfeld arrested B.K., and the State charged him with possession of a stolen
vehicle. 

### Regarding the CrR 3.6portion ofthecombined CrR 3.6 and adjudicatory hearing, defense counsel argued the testimony and statements ofA.R. should be excluded as fruit ofthe poisonous tree: 

### ButIthink it's prettyclear... that the evidence of Ramirezwould not otherwise have been discovered but for his father's illegal recording 

### and Ithink at this point the court should apply the exclusionary rule to all of his testimony, including his statements and his own 

### personal observations, again, because it is connected back to the illegal search, the illegal recording, in violation ofthe Privacy Act. Verbatim Report ofProceedings (VRP) 12/13/12 at 207. The court found A.R.'s conversation was private and entitled to protection under 

### Washington's PrivacyAct. Thecourtthusdeclined toadmitthe recording. Thecourt found, however, the violation to be "sufficiently attenuated" from A.R.'s testimony as to make exclusion of his testimony unnecessary: 

### I would say that what I think the record shows here is that the witness Ramirez, his observations and alleged overhearing of 

### alleged admissions of the respondent here happened before the recorded conversation, so that's a factor. The recorded conversation 

### itself is not being offered into evidence. The youth has said that heNo. 68174-5-1/4 has decided that what is supposed to have happened here was wrong and he wanted to participate. Ithink the court has to analyze that with care because I think he was subpoenaed one way or the other, so he has to participate, whether he wants to or not. His father is a police officer and did some investigation on the case, and so that's a factor or not. So I think what 1 do is I look at the fruit of the poisonous tree factors. The case of Childress is helpful, and those factors were argued. I think it's not an exclusive list, so Ithink I can consider here that itwas the testimony is sought to be admitted is prior and independent of the illegally recorded conversation and involves a witness, not a codefendant or a participant and there was free will exercised. He was quite clear in his testimony that he wanted to come in and cooperate now. And it says: Factor 3. The fact that the exclusion would permanently disable the witness from testifying about relevant material facts, regardless of how unrelated such testimony might be to the purpose of the original illegal search. Ido think in the end that his testimony is not related to the illegal recording, so I'm going to find that his testimony is sufficientattenuated, not to be subject to the 

### exclusionary rule under the fruit of the poisonous tree doctrine. So I will admit it. VRP 12/14/13 at 4-6. 

### At trial, M.B. (thedriver ofthe Prius) testified that the B.K. had been in the front

« 

### passenger seat when they were pulled over, and thatB.K. had given him the FOB key to drive the car earlierin the day. M.B. also testified that B.K. told him the car was stolen 

### as the police werepulling themover. Additionally, S.B., one ofthejuveniles who remained inthe back seat ofthe Prius, testified that the respondent B.K. provided M.B.
with the Prius. 

### Thetrial courtadjudicated B.K. guilty of possession of a stolenvehicle. B.K. appeals. DISCUSSION 

### B.K. argues thetrial court erroneously declined to suppress thetestimony ofA.R. in that the "attenuation" doctrine does not apply inWashington. The State concedes theNo. 68174-5-1/5
trial court erroneously focused on whetherA.R.'s testimony was attenuated from the recording, but itnevertheless argues suppression was notwarranted because the Privacy Actdoes not apply to A.R.'s testimony. We agree with the State. RCW 9.73.050 operates to exclude "information obtained in violation of RCW 9.73.030." Such information includes the recordings themselves, as well as testimony from witnesses describing the content of the illegal recordings, or the behavior and 

### mannerisms ofpersons while being illegally recorded. See, e.g., State v. Fiermestad, 114Wn.2d828, 835, 791 P.2d 897 (1990) ("anyinformation" to be excluded includes "visual observations and assertive conduct" occurring during the illegal recording). 

### Where the challenged testimony, however, "is not aboutrecorded statements but consists of the witnesses' independentrecollections offacts obtainedthrough personal 

### knowledge priorto therecordings" such testimony "is not subjecttosuppression under theprivacy act." Statev. Johnson, 40Wn. App. 371, 375, 699 P.2d 221 (1985). Here, A.R.'s testimony was about hisindependent recollection ofB.K. telling him he stole the car, and that recollection was gained through personal knowledge before the recording at issue in this case. As such, A.R.'s testimony was not subject to suppression under the 

### privacy act, and it was not error to decline the motion to suppress. 

### Moreover, anyerror in admitting A.R.'s testimony washarmless. Admission of evidence in violation of the privacy act is a statutory, not a constitutional, violation. State


### v. Courtney, 137Wn. App. 376, 383, 153 P.3d 238 (2007). Accordingly, the error is deemed harmless unless it is reasonably probable that, had the error not occurred, theNo. 68174-5-1/6

outcome ofthe trial would have been different. State v. Cunningham, 93 Wn.2d 823, 831, 613P.2d 1139(1980). Here, the driver of the Prius, M.B., testified that B.K. had been in the front passenger seat when they were pulled over, that B.K. had given him the FOB key to drive the car earlier in the day, and that B.K. told him the car was stolen. Additionally, S.B. testified that B.K. provided M.B. with the Prius. Infinding of fact 12, which is 

### unchallenged and therefore a verity on appeal, the trial court found M.B.'s testimony to be credible. State v. Stevenson, 128 Wn. App. 179, 193, 114 P.3d 699 (2005). Under these circumstances, it is not reasonably probable that, had A.R.'s testimony been 

### suppressed, thetrial court would havedeclined toadjudicate B.K. guilty of possession
of a stolen car. Affirmed.

WE CONCUR: n y

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