Appeal from Superior Court of Clallam County. Docket No: 95-1-00154-7. Date filed: 09/01/95. Judge signing: Hon. George L. Wood Jr.
Order To Amend Opinion May 23, 1997. Second Order To Amend Opinion June 20, 1997.
Authored by Carroll C. Bridgewater. Concurring: J. Dean Morgan, David H. Armstrong.
The opinion of the court was delivered by: Bridgewater
BRIDGEWATER, A.C.J.--David L. Rainford appeals his conviction for possession of a controlled substance, heroin, under RCW 69.50.401(d). We hold that reasonable suspicion is required to conduct a "dry cell" search and that Rainford's constitutional rights were not violated even though Clallam Bay Correction Center did not follow exactly their procedure for a dry cell search. Further, Rainford's conviction and enhancement for possession within a correctional facility do not violate equal protection because a statute specific to inmates' possession of controlled substances is not concurrent with the general statute prohibiting possession, and the prosecuting attorney had discretion to charge under either statute. We affirm.
Clallam Bay Correctional Center authorities initiated an investigation into the possibility that drugs were being introduced into the facility when a part of a plastic baggie was found in the visitor's toilet, which prison officials believed was consistent with a container that would be used to secrete drugs within the body. Prison investigator Hanson investigated the three prisoners who had visitors that day and focused on inmate Rainford because he was the only one incarcerated for drug offenses. Rainford's wife was a known drug addict, and his cellmate, Shornhorst, was suspected of smuggling drugs. Hanson examined letters and an audio tape from Rainford and Shornhorst to Mrs. Rainford and determined that they showed that the Rainfords might be involved in smuggling drugs into the prison by secreting them within their bodies. The investigators summarized this information for the Superintendent, and he authorized the guards to conduct a dry cell search after Rainford's next visit with his wife. *fn1 A dry cell search was initiated and prison officials recovered two balloons filled with heroin from Rainford's feces. Rainford was convicted of possession of a controlled substance under RCW 69.50.401(d). The standard sentence was enhanced by 12 months under former RCW 9.94A.310(4)(c) (1994) because the offense occurred while the offender was in a state correctional facility.
Rainford contends that the dry cell search violated his Fourth Amendment and Washington Constitution article I, section 7 rights. Rainford makes two separate arguments: (1) that there was no reasonable suspicion for the search, and (2) that the prison officials violated his constitutional rights by failing to follow their own procedure for dry cell searches.
The trial court found that the prison had "a reasonable suspicion . . . that the Defendant had contraband within his body after being visited by his wife." Where findings of fact and Conclusions of law are supported by substantial but disputed evidence, an appellate court will not disturb the trial court's ruling. State v. Smith, 84 Wash. 2d 498, 527 P.2d 674 (1974); State v. Chapman, 84 Wash. 2d 373, 526 P.2d 64 (1974). See also House v. Erwin, 83 Wash. 2d 898, 524 P.2d 911 (1974). The State argues that there was reasonable articulable suspicion based upon the following facts: a piece of a baggie was found in the visitor's toilet on a day when Rainford's wife was visiting; Rainford was incarcerated for drug offenses; Mrs. Rainford was a known drug addict; and letters and a tape from Rainford to his wife indicated Rainford's drug use and contained covert references to drug smuggling. These facts are sufficient to form a reasonable articulable suspicion that Rainford would have drugs within his person after his wife's visit.
Rainford argues, however, that greater certainty is required under article I, section 7. The federal constitution provides the minimum protection afforded citizens against unreasonable searches by the government. State v. Chrisman, 100 Wash. 2d 814, 817, 676 P.2d 419 (1984).
Whether the Washington Constitution provides a level of protection different from the federal constitution in a given case is determined by reference to the six nonexclusive Gunwall factors. *fn2 State v. Boland, 115 Wash. 2d 571, 575, 800 P.2d 1112 (1990); State v. Gunwall, 106 Wash. 2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986). The parties must adequately brief the Gunwall factors to enable the reviewing court to consider an independent state constitutional analysis in the case. State v. Wethered, 110 Wash. 2d 466, 472-73, 755 P.2d 797 (1988). When violations of both the federal and Washington constitutions are alleged, it is usually appropriate to examine the state constitutional claim first. Seattle v. Mesiani, 110 Wash. 2d 454, 456, 755 P.2d 775 (1988). However, our analysis begins with federal law only to place the state law in context.
Under the Fourth Amendment, while an inmate is "'not wholly stripped of constitutional protections when (they are) imprisoned for crime," many of the inmate's rights and privileges are subject to limitation because institutional goals and policies take precedence. State v. Hartzog, 96 Wash. 2d 383, 391, 635 P.2d 694 (1981) (quoting Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974); see also Bell v. Wolfish, 441 U.S. 520, 545-46, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979). In evaluating whether body cavity searches violate the Fourth Amendment, the Supreme Court employs a reasonableness test, stating that: "In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Bell, 441 U.S. at 559. In Bell, the Court found that visual body cavity inspections could be conducted on less than probable cause if the search is reasonable and not conducted in an abusive fashion. Bell, 441 U.S. at 558-60. The Bell court does not state what level of cause is required, but the decision validated a practice of visual body cavity search of all inmates after contact visits. Reasonable suspicion is sufficient in a prison setting to protect the inmate's reasonable expectation of privacy under the Fourth Amendment, so long as the search is not conducted in an abusive fashion. The dry cell search here passes the Bell balancing test. The justification for the search is to protect prison inmates and employees by preventing the introduction of drugs and contraband into the prison. This justification was validated in Bell. Furthermore, the search was conducted in the least offensive manner possible; no inmates or unnecessary guards were allowed to watch Rainford while he was contained, and he has not alleged that he was subjected to unnecessary humiliation. While a dry cell search is in some ways more intrusive than a visual body cavity search because it is of a longer duration, it is also less intrusive because there is no physical probing of the person. Reasonable suspicion is adequate cause to initiate a dry cell search.
Rainford argues that under the Washington Constitution, article I, section 7, he is entitled to more protection for dry cell searches, but in so arguing, he fails to cite to any cases giving prisoners greater protection under the state constitution. Rainford discusses the Gunwall factors only in the most general sense; his references are to cases discussing the generally accepted concept that the language in article I, section 7 differs from the Fourth Amendment such that it may extend broader protection, but that otherwise do not apply to this fact pattern. See, e.g., Gunwall, 106 Wash. 2d 54, 720 P.2d 808. However, the Gunwall analysis does not end with a textual comparison. Rainford must show state policy considerations that would lead the court to extend greater protection in the particular situation presented by this case, which he does not do. Rainford has failed to show by statute or case law that greater protection is extended to prisoners under article I, section 7 than under the Fourth Amendment. In fact, Rainford has not cited to any cases that analyze a prisoner's expectation of privacy under the Washington Constitution.
Washington courts have held that an inmate's expectation of privacy is necessarily lowered while in custody and that warrantless searches may be conducted if reasonable. State v. Campbell, 103 Wash. 2d 1, 23, 691 P.2d 929 (1984). Even probationers and parolees have a diminished right of privacy, permitting reasonable warrantless searches. See, e.g., State v. Patterson, 51 Wash. App. 202, 204, 752 P.2d 945 (1988). Washington allows routine pat-down search of prisoners even without articulable suspicion. See State v. Baker, 28 Wash. App. 423, 623 P.2d 1172 (1981). Thus, while these facts present an issue of first impression under the Washington Constitution, we find that a dry cell search initiated based on reasonable articulable suspicion, conducted in a manner that is not abusive, is reasonable under article I, section 7. Reasonable suspicion is all that is required under either the fourth amendment to the United States Constitution or ...