http://www.impsec.org/~jhardin/gunstuff/legal/State_v_Flora.html
State_v_Flora is the case most quoted as allowing the recording of police officers.
"The State urges us to adopt the view that public officers performing an official function on a public thoroughfare in the presence of a third party and within the sight and hearing of passersby enjoy a privacy interest which they may assert under the statute. We reject that view as wholly without merit.
[1] Determining whether a given matter is private requires a fact-specific inquiry. See Kadoranian v. Bellingham Police Dep't, 119 Wn.2d 178, 190, 829 P.2d 1061 (1992) (citing State v. Slemmer, 48 Wn. App. 48, 52, 738 P.2d 281 (1987) and State v. Forrester, 21 Wn. App. 855, 861, 587 P.2d 179 (1978), review denied, 92 Wn.2d 1006 (1979)). Where the pertinent facts underlying the cause of action are undisputed, as here, the determination is one of law. Kadoranian, 119 Wn.2d at 190 (citing Central Wash. Bank v. Mendelson-Zeller, Inc., 113 Wn.2d 346, 353, 779 P.2d 697 (1989)).
[2, 3] Although the term "private" is not explicitly defined in the statute, Washington courts have on several occasions construed the term to mean:
secret . . . intended only for the persons involved (a conversation) . . . holding a confidential relationship to something . . . a secret message: a private communication . . . secretly; not open or in public.
Slemmer, 48 Wn. App. at 52 (quoting Forrester, 21 Wn. App. at 861 (quoting Webster's Third New International Dictionary (1969))); accord, State v. Bonilla, 23 Wn. App. 869, 872, 598 P.2d 783 (1979). That definition is consistent with the Legislature's purpose in enacting the privacy act, to protect individuals from the dissemination of illegally obtained information. State v. Fjermestad, 114 Wn.2d 828, 834, 791 P.2d 897 (1990) (citing State v. Wanrow, 88 Wn.2d 221, 233, 559 P.2d 548 (1977)). Our Supreme Court has explained that the statute
expresses a legislative intent to safeguard the private conversations of citizens from dissemination in any way. The statute reflects a desire to protect individuals from the disclosure of any secret illegally uncovered by law enforcement.
(Italics ours.) State v. Fjermestad, 114 Wn.2d at 836.
[4, 5] The State advances no persuasive basis for its contention that the conversation between the officers and Flora should be considered private. We note in particular that in none of the cases it cites as controlling were public officers asserting a privacy interest in statements uttered in the course of performing their official and public duties. Rather, the question in those cases was whether the personal privacy of an individual was improperly invaded. See State v. Cunningham, 23 Wn. App. 826, 843-44, 598 P.2d 756 (1979), rev'd, 93 Wn.2d 823, 613 P.2d 1139 (1980); State v. Grant, 9 Wn. App. 260, 265, 511 P.2d 1013, review denied, 83 Wn.2d 1003 (1973), cert. denied, 419 U.S. 849 (1974); State v. Caliguri, 99 Wn.2d 501, 506, 664 P.2d 466 (1983); State v. Wanrow, 88 Wn.2d at 228-32. The State now urges us to distort the rationale of those cases to support the proposition that police officers possess a personal privacy interest in statements they make as public officers effectuating an arrest.
Our research into other legal sources, in which a literature on the notion of privacy may be said to exist, has produced no cases which support the State's position. In Fourth Amendment analysis, and tort theory, for example, the question whether a matter is private occasions a threshold inquiry into whether the matter at issue ought properly be entitled to protection at all:
It is clear, however, that there must be something in the nature of prying or intrusion, . . . It is clear also that the thing into which there is intrusion or prying must be, and be entitled to be, private.
Jeffers v. Seattle, 23 Wn. App. 301, 315, 597 P.2d 899 (1979) (quoting W. Prosser, Torts 808 (4th ed. 1971)); see also Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967).
The conversation at issue fails this threshold inquiry; the arrest was not entitled to be private. Moreover, the police officers in this case could not reasonably have considered their words private. «1»
«1» We note, incidentally, that the police officers testified at trial that they did not consider the conversation private.
Because the exchange was not private, its recording could not violate RCW 9.73.030 which applies to private conversations only. We decline the State's invitation to transform the privacy act into a sword available for use against individuals by public officers acting in their official capacity. The trial court erred in denying Flora's motion to dismiss. Flora's conviction is reversed and the case dismissed.