Summary
The Washington Supreme Court held that, when the relevant facts are undisputed, whether a communication is private under Washington's Privacy Act is a question of law reviewed de novo. The court concluded that William Kipp's secretly recorded conversation with his brother-in-law in a private residence was private and that the recording violated chapter 9.73 RCW. The court reversed Kipp's convictions and remanded for further proceedings.
Topics
Practice areas
Questions Presented
- What standard of review applies when determining whether a communication is private under Washington's privacy act and the relevant facts are undisputed?
- Whether Kipp's secretly recorded conversation with his brother-in-law was private under chapter 9.73 RCW.
- Whether the recording obtained in violation of Washington's privacy act should have been suppressed.
Holdings
- When the facts are undisputed, whether a particular communication is private is a question of law reviewed de novo.
- Kipp's conversation with his brother-in-law was private because he manifested a subjective intention that it be private and his expectation of privacy was reasonable under the circumstances.
- Because the recording violated Washington's privacy act, the trial court should have suppressed it.
Key quotations
“We hold that for purposes of the privacy act, when facts are undisputed, the question of whether a particular communication is private is a matter of law reviewed de novo.” (at 2)
“In this case, Kipp's conversation with his brother-in-law was private and therefore should have been suppressed.” (at 2)
“A communication is private (1) when parties manifest a subjective intention that it be private and (2) where that expectation is reasonable.” (at 10)
“We conclude Kipp had both a subjective and reasonable expectation of privacy as he was speaking in private with his brother-in-law about a very sensitive matter.” (at 16)
Factual background
Kipp's brother-in-law secretly recorded an approximately ten-minute conversation with Kipp in the kitchen of a private residence. Kipp did not know he was being recorded, and the conversation concerned allegations that Kipp had molested the brother-in-law's daughters. The men were alone, and Kipp indicated near the end that he wanted to discuss the matter privately again later.
Procedural history
The trial court accepted undisputed facts, listened to the recording, and ruled that the conversation was not private under Washington's privacy act. The recording was admitted at trial, and a jury convicted Kipp of two counts of second degree rape of a child and one count of second degree child molestation. The Court of Appeals affirmed in a split decision using a substantial-evidence standard. The Washington Supreme Court granted discretionary review, reversed, and remanded.
Remand instructions
Reverse the convictions and remand for further proceedings consistent with the opinion, including suppression of the recorded conversation.