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UNPUBLISHED OPINION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., a juvenile, appeals his adjudication for possession of a

stolen vehicle, arguing that the trial court erroneously failed to suppress the testimony 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 any recording, there was no errorin admitting the testimony. We affirm. ^ ->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 kept in a kitchen

drawer, was also missing. Ross and his wife 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.

On June 16, Officer William Anderson1 the stolen Prius near Northgate Mall and

attempted to stop the car in the mall parking lot. After Anderson 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. After Anderson asked them to get back in

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 shortly thereafter.

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, he flashed

his lights, thereby activating the camera/recording system inside the police car. Michl

either attempted to deactivate the recording system and failed, orsimply forgot about

the recording, upon leaving to direct traffic. A.R. waited in his dad's patrol car. A.R. had

general knowledge that activation ofthe lights activated the camera, but did not think

about it, and did not give consent to be recorded. While in the car, A.R. called his

girlfriend. One ofthe topics of discussion included appellant B.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 his girlfriend that B.K. had stolen a car. Michl

contacted various parents, including B.K.'s father. Later that day, Michl also confronted

1All of the officers referred to herein, serve with the Seattle Police Department.

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No. 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 3.6 portion ofthe combined CrR 3.6 and adjudicatory hearing,

defense counsel argued the testimony and statements ofA.R. should be excluded as

fruit of the poisonous tree:

But Ithink it's pretty clear... that the evidence of Ramirez would 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 of Proceedings (VRP) 12/13/12 at 207.

The court found A.R.'s conversation was private and entitled to protection under

Washington's Privacy Act. The court thus declined to admit the recording. The court

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 he
No. 68174-5-1/4

has decided that what is supposed to have happened here was

wrong and he wanted to participate. I think 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 I think I can consider here that it was

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. I do think in the end that

his testimony is not related to the illegal recording, so I'm going to

find that his testimony is sufficient attenuated, 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. (the driver ofthe Prius) testified that the B.K. had been in the front

«

passenger seat when they were pulled over, and that B.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 were pulling them over. Additionally, S.B., one ofthe juveniles who

remained in the back seat of the Prius, testified that the respondent B.K. provided M.B.

with the Prius.

The trial court adjudicated B.K. guilty of possession of a stolen vehicle. B.K.

appeals.

DISCUSSION

B.K. argues the trial court erroneously declined to suppress the testimony ofA.R.

in that the "attenuation" doctrine does not apply in Washington. The State concedes the
No. 68174-5-1/5

trial court erroneously focused on whether A.R.'s testimony was attenuated from the

recording, but it nevertheless argues suppression was not warranted because the

Privacy Act does 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 of persons while being illegally recorded. See, e.g., State v. Fiermestad,

114Wn.2d828, 835, 791 P.2d 897 (1990) ("any information" to be excluded includes

"visual observations and assertive conduct" occurring during the illegal recording).

Where the challenged testimony, however, "is not about recorded statements but

consists of the witnesses' independent recollections offacts obtained through personal

knowledge prior to the recordings" such testimony "is not subject to suppression under

the privacy act." State v. 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, any error in admitting A.R.'s testimony was harmless. 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, the
No. 68174-5-1/6

outcome of the 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. In finding 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, the trial court would have declined to adjudicate B.K. guilty of possession

of a stolen car.

Affirmed.

WE CONCUR: n y

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