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State v. Pippin

Court of Appeals of Washington, Division 2

October 10, 2017


          BJORGEN, C. J.

         The 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.

         Pippin 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 charge.

         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.

         In the 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 In the unpublished portion, we hold that the warrantless search of his tent was not justified as a protective sweep, but that the trial court used an incorrect legal standard in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.

         Accordingly, we affirm in part, reverse in part, and remand to the trial court to determine whether officer safety concerns justified the warrantless intrusion.


         1. Background

         For a 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, [1] which permitted camping only between 9:30 p.m. and 6:30 a.m.

         A 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.

         2. Police Contact with Pippin

         On 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.

         At 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.

         What 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.

         Donaldson 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 a moment.

         Over an 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.[2] 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.

         Donaldson 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.

         3. Procedure

         The 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 warrantless search.

         The 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.

         As to 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 privacy.
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 their safety.
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.

         The trial court accordingly entered an order suppressing the incriminating evidence retrieved from the tent, and an order dismissing the case. The State appeals.


         I. Standard of Review

         Generally, 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 1025 (2017).

         II. Article I, Section 7 of the Washington Constitution

         The 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."[3] Id.

         Our 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.

         Article 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.

         Unlike 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.

         The 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.

         On the 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), [4] or saliva voluntarily placed on an envelope. Athan, 160 Wn.2d at 372.

         More 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.

         A. Historical Protections

         Neither 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.

         More 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 twenty-first century.

RCW 43.185C.005.

         In 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' personal information.

         Pitt's 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.

         B. Intimate or Discrete Details ...

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