BJORGEN, C. J.
State appeals the trial court orders suppressing evidence and
dismissing the charge of unlawful possession of a controlled
substance, methamphetamine, against William Pippin. Pippin
was a homeless man, living in an opaque tent-like structure
on public land in Vancouver. As part of an attempt to notify
individuals of a new camping ordinance, police officers
approached Pippin's tent and requested that he come out.
Because Pippin did not come out after an uncertain amount of
time and because of noises they heard in the tent, the
officers felt they were in danger and one officer lifted a
flap of Pippin's tent to look inside. In the tent, the
officers observed a bag of methamphetamine.
was charged with unlawful possession of a controlled
substance. The trial court granted his motion to suppress the
evidence found in his tent, leading to a dismissal of the
State appeals, contending that (1) the trial court erred in
determining that Pippin had a privacy interest in his tent
under the Fourth Amendment to the United States Constitution
and article I, section 7 of the Washington Constitution, (2)
if Pippin's tent is entitled to constitutional privacy
protection, the trial court erred in concluding that the
officers' act of opening and looking into the tent was
not justified as a protective sweep or through exigent
circumstances based on officer safety, and (3) the trial
court's findings of fact 7, 8, and 9 on the motion to
suppress are not supported by substantial evidence in the
record and rest on improper judicial notice.
published portion of this opinion, we hold that Pippin's
tent and its contents were entitled to constitutional privacy
protection under article I, section 7. In the unpublished
portion, we hold that the warrantless search of his tent was
not justified as a protective sweep, but that the trial court
used an incorrect legal standard in deciding that the search
was not justified by concern for officer safety. We also hold
that findings of fact 7 and 9 are not supported by
substantial evidence and that it is not necessary to resolve
the challenge to finding of fact 8. Any invalidity, however,
has no effect on the resolution of this appeal.
we affirm in part, reverse in part, and remand to the trial
court to determine whether officer safety concerns justified
the warrantless intrusion.
two and a half month period in 2015, police ceased enforcing
former Vancouver Municipal Code (VMC) 8.22.040 (1997), which
barred camping on public property without permission. In
October 2015, officers began notifying those camping on
public property of a newly revised VMC 8.22.040,
which permitted camping only between 9:30 p.m. and 6:30 a.m.
community of approximately 100 homeless individuals living in
80 or so different campsites had arisen in downtown
Vancouver. On October 29, officers began notifying people in
the downtown area of the new ordinance, either making contact
at each campsite or leaving a written notice posted on the
outside of the campsite if no one was present. The written
notices stated that individuals needed to comply with the
revised ordinance by removing their camps after 6:00 a.m.
"by the middle of the next week." Clerk's
Papers (CP) at 36. October 29, 2015 was a Thursday. Upon
approaching Pippin's campsite that day, officers found no
one present and left such a notice, inside plastic, affixed
to his tent structure with a safety pin.
Police Contact with Pippin
Monday, November 2, Vancouver police officers Tyler Chavers
and Sean Donaldson were preparing to continue warning campers
or arresting those who had been warned earlier. Chavers and
Donaldson were briefed at a safety meeting that morning not
to get lax, because people in the downtown area could be
wanted for violent crimes and because that area had
experienced prior service calls for assault and robbery. The
officers also had personal knowledge that some homeless
individuals in the area armed themselves with homemade
weapons, such as bike parts, chains, and machetes.
10:35 a.m., Chavers and Donaldson went to Pippin's camp
to make contact with him and either cite and arrest him or
warn him for violating the new ordinance. Pippin's
tent-like structure was covered with a tarp and set between a
guardrail on a public road and a chain link fence that was on
private property. The officers could not see inside his tent.
happened next is not precisely clear from the trial
court's findings of fact or the record on appeal.
Importantly, it is unclear whether the following events
occurred over a very short amount of time or several minutes.
rapped on Pippin's tent, announced that police were
present, and asked if anyone was there. Pippin, in a groggy
voice replied, "Hello, yeah here, just waking up."
CP at 38. The officers then asked Pippin if he was alone, and
Pippin said that he was. The officers told Pippin that he
needed to exit his tent so that they could give him a
document and to talk to him about the ordinance. Pippin
slowly and lethargically responded that he would come out in
uncertain amount of time, Donaldson continued to talk to
Pippin while Chavers spoke with another officer. The officers
told Pippin "several times" that they needed to see
him. CP at 39. At some point, the officers "heard
movement under the tarp" and started to become concerned
with the amount of time Pippin was taking to come out of his
tent and that he could have a weapon. Chavers attempted to
use a flashlight to see inside the tent, but could not do so.
Donaldson told the defendant he was going to lift the tarp to
see inside, and Pippin said that was okay. Donaldson lifted
the tarp and observed Pippin sitting up in his bed and
turning toward him. Chavers noticed a bag of methamphetamine
in the tent.
testified that "about five minutes" elapsed from
the start of the encounter to when he told Pippin he was
going to look inside the tent. Report of Proceedings (RP) at
62. Chavers, on the other hand, testified that they waited
from five seconds to two minutes before lifting the tarp. In
uncontested finding of fact 42, the trial court determined
that "[s]everal seconds elapsed without the defendant
coming out from under the tarp." CP at 38. However, the
finding's context strongly suggests that this describes
the period from the time the officers heard movement under
the tarp to when they looked into the tent.
State charged Pippin with possession of a controlled
substance, methamphetamine. He moved to suppress the evidence
derived from Donaldson lifting the flap and looking into the
tent, arguing that it was an unconstitutional search under
the Fourth and Fourteenth Amendments of the United States
Constitution and article I, section 7 of the Washington
Constitution. The State opposed the motion, arguing that
Pippin had no privacy interest in his tent and, even if he
did, the officers conducted a protective sweep incident to
his arrest or were presented with exigent circumstances,
specifically a threat to officer safety, that justified a
trial court granted Pippin's motion to suppress, ruling
that he had a constitutional privacy interest in his tent. In
concluding so, the court primarily relied on United
States v. Sandoval, 200 F.3d 659 (2000), a 9th Circuit
opinion dealing with whether an individual illegally camped
could have a privacy interest in his tent under the Fourth
Amendment. The trial court also entered findings of fact,
among which were findings 7, 8, and 9, which are disputed by
the parties on appeal. These findings state:
7. Portable restrooms were set up to serve this community.
8. Agencies were coming down and providing huts to the
homeless and aiding them.
9. Some members of this community were expressing their right
to bear arms and were walking around like a security force.
CP at 35.
the State's arguments regarding a protective sweep or
exigent circumstances, the trial court entered the following
pertinent conclusions of law:
9. In order for officers to search an area under protective
sweep exigency there must be a balancing of the officer
safety concern against the defendant's expectation of
10. The officers had a legitimate concern for their safety.
11. The defendant's privacy interest in the tent under
these circumstances outweighed the officers' concern for
12. Because the officers did not have a search warrant for
the defendant's structure and their safety concerns did
not outweigh the defendant's reasonable expectation of
privacy, the search was unlawful and the evidence is
suppressed as fruit of the poisonous tree.
CP at 41.
trial court accordingly entered an order suppressing the
incriminating evidence retrieved from the tent, and an order
dismissing the case. The State appeals.
Standard of Review
we review a trial court's ruling on a suppression motion
to determine whether substantial evidence supports the
challenged findings and whether those findings support the
trial court's conclusions of law. State v.
Gibson, 152 Wn.App. 945, 951, 219 P.3d 964 (2009).
Substantial evidence is evidence that would persuade a
fair-minded person of the truth of the declared premises.
Id. Unchallenged findings are treated as verities on
appeal. Id. We review conclusions of law to
determine whether they are supported by the findings and are
legally correct. State v Smith, 196 Wn.App. 224,
230, 382 P.3d 721 (2016), review granted, 187 Wn.2d
Article I, Section 7 of the Washington Constitution
State argues that the trial court erred in determining that
Pippin had a privacy interest in his tent under the Fourth
Amendment and article I, section 7. When presented with
arguments under both the state and federal constitutions, we
start with the state constitution. State v. Hinton,
179 Wn.2d 862, 868, 319 P.3d 9 (2014). It is well established
"that article I, section 7 qualitatively differs from
the Fourth Amendment. . . and in some areas provides greater
protections than does the federal constitution."
State v. Athan, 160 Wn.2d 354, 365, 158 P.3d 27
(2007). Accordingly, "a Gunwall analysis is
unnecessary to establish that this court should undertake an
independent state constitutional analysis."
Athan, 160 Wn.2d at 365. "The only relevant
question is whether article I, section 7 affords enhanced
protection in the particular context." Id.
Supreme Court has previously declined to engage in a Fourth
Amendment analysis when article I, section 7 is found to
protect the asserted privacy interest. See Hinton,
179 Wn.2d at 868. However, we may utilize well-reasoned
persuasive authority from federal courts and sister
jurisdictions to resolve a question of first impression
concerning the scope of article I, section 7. See State
v. Chenoweth, 160 Wn.2d 454, 470-71, 158 P.3d 595
(2007). Following this authority, we analyze Pippin's
asserted privacy interest under article I, section 7, not the
Fourth Amendment, but rely on some of the federal circuit and
other state cases to guide our reasoning.
I, section 7 mandates that "[n]o person shall be
disturbed in his private affairs, or his home invaded,
without authority of law." We focus in this analysis on
the first of these grounds, disturbance of private affairs.
the Fourth Amendment, where a search occurs if the government
intrudes upon a subjective and reasonable expectation of
privacy, see Katz v. United States, 389 U.S. 347,
351-52, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), the inquiry
under article I, section 7 focuses on protecting
'"those privacy interests which citizens of this
state have held, and should be entitled to hold, safe from
governmental trespass absent a warrant.'" State
v. Young, 123 Wn.2d 173, 181, 867 P.2d 593 (1994)
(quoting State v. Myrick, 102 Wn.2d 506, 511, 688
P.2d 151 (1984)). Instead of examining whether an
individual's expectation of privacy is reasonable,
"the focus is whether the 'private affairs' of
an individual have been unreasonably violated."
State v. Boland, 115 Wn.2d 571, 580, 800 P.2d 1112
(1990). The inquiry into private affairs under the state
constitution is broader than the inquiry into reasonable
expectation under the federal constitution. Young,
123 Wn.2d at 181.
holdings of our Supreme Court give some definition to the
contours of "private affairs." The court has held
that the State unreasonably intruded into a person's
private affairs when it obtained long distance telephone toll
records through a pen register, State v. Gunwall,
106 Wn.2d 54, 68, 720 P.2d 808 (1986), examined the contents
of a defendant's trash placed on the curb for pickup,
Boland, 115 Wn.2d at 578, randomly checked hotel
registries to determine who were guests at a hotel, State
v. Jorden, 160 Wn.2d 121, 131, 156 P.3d 893 (2007),
attached a global positioning system tracking device to a
defendant's vehicle, State v. Jackson, 150 Wn.2d
251, 264, 76 P.3d 217 (2003), and read through text messages
on a cell phone. Hinton, 179 Wn.2d at 865.
other hand, no private affairs were deemed violated when the
State used Department of Licensing records, State v.
McKinney, 148 Wn.2d 20, 30, 60 P.3d 46 (2002), power
usage records, In re Pers. Restraint of Maxfield,
133 Wn.2d 332, 354, 945 P.2d 196 (1997),  or saliva
voluntarily placed on an envelope. Athan, 160 Wn.2d
specifically, in defining the scope of protection under
article I, section 7, we examine "the history of the
interest at stake, relevant case law and statutes, and the
current implications of recognizing or not recognizing the
interest." State v. Walker, 157 Wn.2d 307, 314,
138 P.3d 113 (2006). As part of this, we examine whether the
nature of the information obtained through the governmental
trespass potentially reveals intimate or discrete details of
a person's life. Hinton, 179 Wn.2d at 869. Thus,
our analysis relies on relevant case law and focuses on (1)
the historical protections afforded to the privacy interest,
(2) the nature of information potentially revealed from the
intrusion, and (3) the implications of recognizing or not
recognizing the asserted privacy interest.
party cites to any historical protections that have been
afforded to homeless individuals in makeshift shelters.
However, in applying article I, section 7 our Supreme Court
has held that '"the closer officers come to
intrusion into a dwelling, the greater the constitutional
protection.'" State v. Ferrier, 136 Wn.2d
103, 112, 960 P.2d 927 (1998) (quoting Young, 123
Wn.2d at 185). The Ferrier court recognized that
this principle has historical antecedents as far back as a
1763 speech given in Parliament by William Pitt, Earl of
Chatham, proclaiming that:
The poorest man may in his cottage bid defiance to all the
forces of the Crown. It may be frail; its roof may shake; the
wind may blow through it; the storm may enter; the rain may
enter; but the King of England cannot enter-all his force
dares not cross the threshold of the ruined tenement!
Ferrier, 136 Wn.2d at 112 n.6.
recently, the legislature has recognized the trials and
tribulations that homeless individuals face and has afforded
them some privacy protection. In 2005, the legislature
enacted the Homelessness Housing and Assistance Act, chapter
43.185C RCW, which sought "to end homelessness in
Washington by July 1, 2015." RCW 43.185C.005. The Act
defines "homeless person" to include, among others,
individuals "living outside or in a building not meant
for human habitation or which they have no legal right to
occupy." RCW 43.185C.010(12). The legislature found that
[d]espite laudable efforts by all levels of government,
private individuals, nonprofit organizations, and charitable
foundations to end homelessness, the number of homeless
persons in Washington is unacceptably high. The state's
homeless population, furthermore, includes a large number of
families with children, youth, and employed persons. . . .
The legislature finds that there are many causes of
homelessness, including a shortage of affordable housing; a
shortage of family-wage jobs which undermines housing
affordability; a lack of an accessible and affordable health
care system available to all who suffer from physical and
mental illnesses and chemical and alcohol dependency;
domestic violence; and a lack of education and job skills
necessary to acquire adequate wage jobs in the economy of the
service of its goals, the Act created a "homeless client
management information system" to collect and streamline
information for homeless individuals. RCW 43.185C. 180. But
before information can be collected from a homeless
individual, the legislature specifically required that such
an individual provide informed consent. See RCW
43.185C. 180(2)(a). If the data will be merged with other
systems or reporting, the State is required to
"[p]rotect the right of privacy of individuals."
RCW 43.185C. 180(5)(a). Thus, this Act provides a small
window into the realities of homeless life and conveys a
general respect for the privacy of homeless individuals'
speech and these legislative provisions are far from
dispositive as to whether Pippin's tent should be
afforded article I, section 7 protection. However, the
historical context they afford guides the trajectory of our
article I, section 7 analysis.
Intimate or Discrete Details ...