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Admissibility
Of Voice Recordings
State v. Smith, 85 Wn.2d 840 (1975)
An Essay by Gary L. Wolfstone, J.D.
garywolfstone@gmail.com
 State vs. Smith, 85 Wn.2d 840 (1975). The Washington State Supreme Court
upheld the conviction of Seattle Police Officer David Smith who murdered Nicholas Kyreacos
on November 19, 1973. The key piece of evidence at Smith's trial was a secret tape recording which
Kyreacos made when he was confronted with and shot by Officer Smith in a Seattle alley
where Smith was moonlighting for a local mortgage company. Mr. Kyreacos was a suspect
in an investigation assigned to Officer Smith, and Kyreacos had been lured to the
place of the fatal rendezvous by an anonymous caller. Officer Smith was blissfully
unaware that Kyreacos was "wired" for sound.
Kyreacos had concealed the tape recorder under his clothing, and it was discovered
during an autopsy in the medical examiner's office. If Officer Smith had discovered
the secret recording device before he called for assistance, Smith might never have
been prosecuted for his crime. The tape was played twice for the
jury at Dave Smith's murder prosecution. The recording is a graphic account of
the verbal exchange between Dave Smith and his victim, Kyreacos, including an
account of Kyreacos begging for his life.
The Court embarks upon a lengthy discussion and analysis of the Constitutional
issues; the meaning of a conversation (do mere sounds constitute a "private conversation"?); the meaning of communication; and
the questions of authenticity and lack of foundation as well as the res gestae exception. Coming right to the bottom line, the Court holds
that the tape recording was admissible and that the conviction of Dave Smith
should be upheld.
The Kyreacos precedent teaches us that any secret recording of a conversation with a police officer or other person should be
admissible if the police officer was committing a crime because the police officer would not, in those circumstances, have
a reasonable expectation of privacy.
The Fourth Amendment (reasonable search and seizure) standard was harmonized with the modern era (eletronic age of telephones, cell phones, and wi-fi transmissions) in the landmark case of Katz v. United States, 389 U.S. 347 (1967), in which Justice Harlan carefully analyzed "resonable expectation of privacy" in his concurring opinion. In subsequent rulings, this test was arranged into a two prong test for assessing the reasonableness of an expectation of privacy: If (1) the individual "has exhibited an actual (subjective) expectation of privacy", and (2) society is prepared to recognize that this expectation is (objectively) reasonable, then there is a right of privacy in the given circumstance. This test was adopted by the majority in Smith v. Maryland, 442 U.S. 735 (1979). Justice Harlan analyzes what the Katz ruling means for future cases concerning searches and seizures. In Smith v. Maryland, the Supreme Court held that a pen register is not a search because the "petitioner voluntarily conveyed numerical information to the telephone company." Since the defendant had disclosed the dialed numbers to the telephone company so they could connect his call, he did not have a reasonable expectation of privacy in the numbers he dialed. The court did not distinguish between disclosing the numbers to a human operator or just the automatic equipment used by the telephone company. Accordingly, pen registers are completely outside constitutional protection. If there were to be any privacy protection, it would have to be enacted by Congress as statutory privacy law.
Gary L. Wolfstone
Patron of the Arts
Helsinki, Finland
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On Sabbatical Leave
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Copyright, 2020, Gary L. Wolfstone
Seattle lawyer, Gary L. Wolfstone ~ SuomiMoi Kulta! Hali Hali. Pusuu Pusuu. Mina rakastan sinua ... Eiko niin?
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