Appellate panel weighs whether phone recording was admissible in State v. Derbysovich

An appellate court heard arguments in State v. Derbysovich over whether a recording of a phone call admitted at trial violated the state Privacy Act.

Christopher Petrone, who identified himself as counsel with the Washington Appellate Project for Edin Derbysovich, told the court the recording should not have been admitted because the prosecution failed to prove any exception to the Privacy Act. “This court should reverse because the trial court admitted a recording of your private call, a private telephone call, contrary to the Privacy Act,” Petrone said, arguing the State did not prove that at least one party consented to recording or that the defendant lacked a reasonable expectation of privacy.

Petrone acknowledged he had not contested below the applicability of the one-party-consent exception, but told the panel he had focused his challenge on whether the statutory exception was satisfied by the record. He said the record lacks testimony or a report showing the officer affirmatively demonstrated he was recording: “All we know is that the officer pulled out the phone, activated the recording app… We don't know what happened after he activated the recording,” Petrone said, arguing the prosecution had the burden to prove consent.

Deputy Prosecuting Attorney Matthew Pittman, representing the State, urged the court to treat the argument on one-party consent as waived because the defense had conceded that issue in the lower court. Pittman also argued the case is factually distinguishable from State v. Fields, saying an officer was present at the apartment at the victim’s request and the circumstances supported a different inference about whether the officer’s conduct made the presence of recording known or reasonably expected. “We had the exact thing happening… where she answers, and then she immediately starts talking to [law enforcement],” Pittman said, arguing those facts differentiate this record from Fields.

Panel members pressed both sides on two discrete lines of inquiry: (1) whether the defense’s failure to press the one-party-consent issue below forecloses raising it on appeal, and (2) whether the trial record contains facts (for example, whether a phone was clearly displayed, placed on speaker, or observed by the caller) sufficient to support a finding of consent or implied consent. A judge observed the record does contain a trial-court finding of implied consent but questioned whether the parties had sought factual development on that issue at trial.

Petrone countered that even if a caller invites officers to listen to a conversation, that may not be sufficient to establish consent to record. “There needs to be specific evidence that she expressly consented or that she knew he was recording and participated in the call, thereby implying her consent,” Petrone said.

The court also discussed appellate waiver doctrine, with the State citing the court’s prior decisions that issues conceded below are generally not preserved for appeal. The bench and counsel debated whether the prosecutor’s failure to present evidence of consent at trial reflected a misunderstanding of its burden or an absence of proof in the record.

After follow-up questions about whether additional facts could have been developed in the trial court, the panel concluded argument and called the next matter.

What happens next: The panel will consider the parties’ briefs and the record and issue a written opinion addressing whether the recording was admissible under the Privacy Act and whether the one-party-consent argument may be reached on appeal.