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

v. BASHIRABDIRASHID MOHAMED, MOHAMED ABDIALI, Defendants, and ZAKARIAAWEIS DERE, and each of them, Appellant. No. 72713-3-1 DIVISION ONE

PUBLISHED OPINION FILED: July 25, 2016 o \,

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Becker, J. — Atelephone conversation between a jail inmate and a 

### person outside thejail is not a private communication when the participants are advised that the call willbe recorded and must confirm their understanding that 

### they are being recorded. Arecording ofsuch a conversation is admissible againstthe noninmate participant as well as againstthe inmate. AppellantZakaria Dere appeals from a robbery conviction. Before the trial, Dere posted bail and was released from custody. Dere received several calls from Mohamed Ali, a codefendant who remained in jail. Their conversations


### were recorded bythejail's telephone system. The recordings provided evidenceNo. 72713-3-1/2 

### ofDere's complicity inthe robbery and were used bythe State at trial. Dere assigns error to the denial of his motion to suppress the recordings. Dere moved to suppress the recordings on the basis thatthey violated his privacy rights. 

### Dere firstcontends admission ofthe recordings violated theWashington privacy act, chapter 9.73 RCW. Recordings obtained inviolation ofthe act are 

### inadmissible for any purpose attrial. RCW 9.73.050. The act makes it unlawful to intercept or record private communications transmitted by telephone without first obtaining the consent of all participants inthe communication. RCW 9.73.030(1); State v. Modica. 164Wn.2d 83, 87, 186 P.3d 1062 (2008). A communication is private when parties manifest a subjective intention that itbe private and where thatexpectation is reasonable. State v. Christensen, 153 Wn.2d 186, 193, 102 P.3d 789 (2004). Dere's conversations with Aliwere not private communications. Dere and Alidid not have a reasonable expectation ofprivacy in theirtelephone conversations because they knew their calls were recorded and subjectto monitoring. See Modica, 168 Wn.2d at 88-89. In Modica, the defendant was arrested andjailed for punching his wife in the face. The defendant called his grandmotherfrom jail to enlist her help in arranging for his wife to evade the prosecutors and not appear in court. Modica, 164 Wn.2d at 87. Thejail recorded the calls between the defendant and his grandmother, and the State used the recordings to convictthe defendant of witness tampering. The conviction was affirmed against an appeal asserting thatNo. 72713-3-1/3 

### the recordings violated the privacy act. Modica, 164Wn.2d at 86. Because the defendant and his grandmother both knew their calls were recorded and subject to monitoring, the court rejected the argumentthatthe calls were private communications. 

### In Modica, signs posted nearthejailtelephones warned thatthe system 

### recorded every outgoing call and tracked every numberdialed. Modica, 164 Wn.2d at 86. An automated message repeated that warning to both those 

### making and receiving the calls. The same was true in this case. Similar signs
were posted and a similarwarning was given by an automated message. Each time Dere received a call from Ali, thejailtelephone system played an automated message stating as follows: 

### Hello. This is a free call from [name ofinmate], an inmate at King 

### County Correctional Facility. This call is from a correctional facility and is subjectto monitoring and recording. Ifthis call is being placed to an attorney, itshould not be accepted unless the attorney name and number is on the do not record list. Ifan attorney name and number is not on the do not record list, this call will be 

### recorded. Ifthe attorney name and number is not on the do not record list, contactthejail immediately and have that attorney's name and number added to the attorney list. Afterthe beep, press 1 to acceptthis policy or press 2 and hang up. In Modica, the court noted thatthe presence ofsigns or automated 

### recordings "do not, in themselves, defeat a reasonable expectation ofprivacy." Modica, 164 Wn.2d at 89. "However, because Modica was in jail, because ofthe 

### need for jail security, and because Modica's calls were not to his lawyer or 

### otherwiseprivileged, we conclude he had noreasonable expectation ofprivacy." Modica, 164 Wn.2d at 89. Dere argues thatto the extentthe Modica rationale 

### depends on the "need forjail security," Modica, 164 Wn.2d at 89, hiscase isNo. 72713-3-1/4 

### distinguishable because nothing that he and Ali discussed intheir recorded conversations had any connection to matters of jail security. The argumentthat recordings are inadmissible when they are requested 

### bythe prosecutorforthe purpose ofinvestigation ratherthan because ofsafety
concerns was rejected in State v. Hag. 166 Wn. App. 221, 259-60, 268 P.3d 997, review denied, 174 Wn.2d 1004 (2012). Thejail records all inmate calls because jail authorities cannot know in advance which calls may contain information pertaining to plans ofescape, tampering with witnesses, and other potential breaches of security. Thus, the need for jail security is a generalized rationale. Because an outsider's conversations with an inmate have the potential to affect the security ofthejail, the State is not required to identify a security concern individualized to a specific inmate to remove a recordedjail phone call from the realm of private communications. In Modica, the recordings were admitted against a defendantwho was an inmate when he participated inthe recorded call. Dere claims that Modica does 

### not govern the admissibility ofrecordings the State seeks to use against a noninmate. The point of Modica, however, is that exceptfor attorneys, anyone 

### who uses thejailtelephone system to carry on a telephone conversation with an inmate is subjectto the inmate's diminished expectation of privacy. Just as Modica's grandmotherdid not have a reasonable expectation that her conversations with him would be private, Dere did not have a reasonable expectation that his conversations with Ali would be private. See Modica, 164 Wn.2d at 88.No. 72713-3-1/5
Dere contends that he did not know his calls were recorded. This argument is foreclosed by findings offact to which Dere has not assigned error. 

### Dere had been an inmate himselfand was aware ofthe recording policy. Dere and Aliheard the recorded message that each phone call was recorded and subjectto monitoring at any time. The message was reinforced by the signs posted nearthejail telephone. This evidence established Dere's knowledge that his telephone conversations with Aliwould be recorded. Dere suggests that such recordings are analogous to a hidden microphone that intercepts attorney-client communications, butthe comparison is inapt. The recordings were not surreptitious, and the conversations between Dere and Aliwere not privileged. Following Modica and Hag, we conclude Dere did not have a reasonable expectation ofprivacy in his telephone conversations with Ali. Because the calls
were not private communications, the privacy act does not apply. Dere also claims thatthe recording of his calls from Ali violated his 

### constitutionally protected privacy rights. Article I, section 7 ofthe Washington Constitution generally protects the privacy oftelephone conversations, but calls from a jail inmate are not private affairs deserving ofarticle I, section 7 

### protection. State v. Archie, 148 Wn. App. 198, 204, 199 P.3d 1005, review denied, 166Wn.2d 1016 (2009). A jail recording system serves an important 

### institutional security interest and its operation typically demonstrates that at least
one participant in a conversation has consented to the recording. Archie, 148 Wn. App. at 204. The inspection ofotherforms ofcommunication with inmates, 

### such as ingoing and outgoing mail and packages, is not an invasion of a privacyNo. 72713-3-1/6 

### interest protected by the Washington Constitution so long as the inmate is informed ofthe likelihood ofinspection. Archie, 148 Wn. App. at 204. The security concerns are the same whetherthe inmate is a pretrial detainee or is being incarcerated aftertrial and they do not depend upon whetherthe communication is by mail or telephone. Archie, 148 Wn. App. at 204. The facts here are similar to those in Archie, and like in Archie, there was both notice and consent. The trial courtfound that both Aliand Dere "expressly consented to the recording" when they pressed the numberthat allowed the call to continue after they heard the automated message quoted above. Likewise, a warrantless monitoring ofconversations does not violate the Fourth Amendmentto the United States Constitution when one party to the 

### conversation gives consent. State v. Corliss, 123 Wn.2d 656, 663, 870 P.2d 317 (1994). The practice ofautomatically taping and randomly monitoring telephone calls ofinmates inthe interestofinstitutional security is not an unreasonable 

### invasion ofthe privacy rights of pretrial detainees. United States v. Willoughbv, 860 F.2d 15, 21 (2d Cir. 1988), cert denied, 488 U.S. 1033 (1989). Willoughbv rules out Dere's contention that underthe Fourth Amendment his own privacy 

### rights as a noninmate were entitled to greaterprotection than Ali's. "Contacts between inmates and noninmates may justify otherwise impermissible intrusions intothe noninmates' privacy," given the strong interest inpreserving institutional security. Willoughbv, 860 F.2d at 21-22. 

### Dere compares the State's use ofthe recordings as a tool ofinvestigation to the warrantless search of a cellphone in Riley v. California, U.S. , 134No. 72713-3-1/7 

### S. Ct. 2473, 189 L. Ed. 2d 430 (2014), and the warrantless eavesdropping described in Katz v. United States. 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 

### (1967). Those cases are inapposite. Consent is a well-recognized exception to the warrant requirement. See Katz, 389 U.S. at 358 n.22. Dere consented to having his conversation recorded. Following Archie and Willoughbv, we conclude there was no violation of 

### Dere's constitutional privacy interests. 

### Dere also assigns errorto evidentiary rulings. Over Dere's hearsay objection, an officer was allowed to testify thatthe victim ofthe robbery, a cab driver, provided the license plate number ofthe car seen driving away from the
scene. The significance ofthe license plate was thatthe police later located the


### car atthe address where itwas registered and arrested Dere when he got into the car and started driving away. The cab driver had not actually seen the license plate; he had obtained the numberfrom anotherwitness. Dere contends the officer's testimony was evidence ofthe type ruled inadmissible in State v. Aaron, 57 Wn. App. 277, 787 P.2d 949 (1990). Aaron is dissimilar. The error inAaron was allowing an officer to repeat hearsay linking the defendantto a burglary. The admission ofsuch evidence cannot bejustified on the basis that itmerely explained why the officer acted as he did. Aaron, 57 Wn. App at 279-80. The officer inthis case had personal knowledge that the police obtained the plate numberfrom the victim. We find no error.No. 72713-3-1/8 Dere's reply briefaddresses the license plate testimony as a violation of his constitutional right to confrontthe witness who actually did see the license plate on the night ofthe robbery butwho did nottestify. Becausethis argument
was not made inthe opening brief, we do not consider it. Norcon Builders, LLC
v. GMP Homes VG, LLC, 161 Wn. App. 474, 497, 254 P.3d 835 (2011). Dere also contends the trial court admitted testimony that amounted to an 

### improper opinion on his guilt. A third participant inthe robbery, Bashir Mohamed, 

### testified against Dere after reaching a plea agreementwiththe State. Mohamed testified that he hitthe victim while Dere demanded money. When the 

### prosecutorasked Mohamed whetherthe victim fled fromthe crime scene "as a direct result ofwhatyou and Mr. Dere were doing together," Mohamed answered
in the affirmative. 

### According to Dere, the State's line ofquestioning was akin to asking Mohamed whether Dere intended to committhe robbery. Dere did not object on 

### this basis below. But in any event, Mohamed's testimony did not manifestly amountto an express opinion that Dere was guilty or had criminal intent. Itwas 

### based upon his own observations and helpful to an understanding of facts at issue. See ER 701. We reject the argument.

8No. 72713-3-1/9
Affirmed.

WE CONCUR: 

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