Summary
In Pippin, Washington police officers lifted a tarp to peer into an unsheltered man's tent without a warrant and arrested him after observing a bag of methamphetamine.
Summary of this case from State v. KeanaainaOpinion
No. 48540-1-II.
10-10-2017
STATE of Washington, Appellant, v. William PIPPIN, Respondent.
Rachael Rogers Probstfeld, Clark County Prosecuting Attorney's Office, P.O. Box 5000, Vancouver, WA, 98666-5000, for Appellant. Casey Grannis Nielsen, Broman & Koch, PLLC, 1908 E. Madison St., Seattle, WA, 98122-2842, for Respondent. Nancy Lynn Talner, Attorney at Law, 901 5th Ave., Ste. 630, Seattle, WA, 98164-2008, Douglas B. Klunder, Attorney at Law, 102 Viewcrest Rd., Bellingham, WA, 98229-8967, as Amicus Curiae on behalf of A.C.L.U. of Washington. Nancy Lynn Talner, Attorney at Law, 901 5th Ave., Ste. 630, Seattle, WA, 98164-2008, Douglas B. Klunder, Attorney at Law, 102 Viewcrest Rd., Bellingham, WA, 98229-8967, as Amicus Curiae on behalf of Homeless Rights Advocacy Project. Nancy Lynn Talner, Attorney at Law, 901 5th Ave., Ste. 630, Seattle, WA, 98164-2008, Douglas B. Klunder, Attorney at Law, 102 Viewcrest Rd., Bellingham, WA, 98229-8967, as Amicus Curiae on behalf of Outsiders Inn. Nancy Lynn Talner, Attorney at Law, 901 5th Ave., Ste. 630, Seattle, WA, 98164-2008, Douglas B. Klunder, Attorney at Law, 102 Viewcrest Rd., Bellingham, WA, 98229-8967, as Amicus Curiae on behalf of Real Change.
Rachael Rogers Probstfeld, Clark County Prosecuting Attorney's Office, P.O. Box 5000, Vancouver, WA, 98666-5000, for Appellant.
Casey Grannis Nielsen, Broman & Koch, PLLC, 1908 E. Madison St., Seattle, WA, 98122-2842, for Respondent.
Nancy Lynn Talner, Attorney at Law, 901 5th Ave., Ste. 630, Seattle, WA, 98164-2008, Douglas B. Klunder, Attorney at Law, 102 Viewcrest Rd., Bellingham, WA, 98229-8967, as Amicus Curiae on behalf of A.C.L.U. of Washington.
Nancy Lynn Talner, Attorney at Law, 901 5th Ave., Ste. 630, Seattle, WA, 98164-2008, Douglas B. Klunder, Attorney at Law, 102 Viewcrest Rd., Bellingham, WA, 98229-8967, as Amicus Curiae on behalf of Homeless Rights Advocacy Project.
Nancy Lynn Talner, Attorney at Law, 901 5th Ave., Ste. 630, Seattle, WA, 98164-2008, Douglas B. Klunder, Attorney at Law, 102 Viewcrest Rd., Bellingham, WA, 98229-8967, as Amicus Curiae on behalf of Outsiders Inn.
Nancy Lynn Talner, Attorney at Law, 901 5th Ave., Ste. 630, Seattle, WA, 98164-2008, Douglas B. Klunder, Attorney at Law, 102 Viewcrest Rd., Bellingham, WA, 98229-8967, as Amicus Curiae on behalf of Real Change.
PART PUBLISHED OPINION
Bjorgen, C.J.¶1 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.
¶2 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.
¶3 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.
¶4 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.¶5 Accordingly, we affirm in part, reverse in part, and remand to the trial court to determine whether officer safety concerns justified the warrantless intrusion.
FACTS
1. Background
¶6 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, which permitted camping only between 9:30 p.m. and 6:30 a.m.
As revised, VMC 8.22.040 reads:
Unlawful camping.
A. During the hours of 6:30 a.m. to 9:30 p.m., it shall be unlawful for any person to camp, occupy camp facilities for purposes of habitation, or use camp paraphernalia in the following areas, except as otherwise provided by ordinance or as permitted pursuant to Section 8.22.070 of this ordinance:
1. any park;
2. any street; or
3. any publicly owned or maintained parking lot or other publicly owned or maintained area, improved or unimproved.
¶7 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
¶8 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.
¶9 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.
¶10 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.
¶11 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.
¶12 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. 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.
The State does not argue that Pippin consented to the search.
¶13 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
¶14 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.¶15 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.
¶16 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.
¶17 The trial court accordingly entered an order suppressing the incriminating evidence retrieved from the tent, and an order dismissing the case. The State appeals.ANALYSIS
I. STANDARD OF REVIEW
¶18 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 Wash.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 Wash.App. 224, 230, 382 P.3d 721 (2016), review granted, 187 Wash.2d 1025, 391 P.3d 447 (2017).
II. ARTICLE I, SECTION 7 OF THE WASHINGTON CONSTITUTION
¶19 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 Wash.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 Wash.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 Wash.2d at 365, 158 P.3d 27. "The only relevant question is whether article I, section 7 affords enhanced protection in the particular context." Id.
State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986).
¶20 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 Wash.2d at 868, 319 P.3d 9. 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 Wash.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.
¶21 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.
¶22 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 Wash.2d 173, 181, 867 P.2d 593 (1994) (quoting State v. Myrick, 102 Wash.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 Wash.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 Wash.2d at 181, 867 P.2d 593.
¶23 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 Wash.2d 54, 68, 720 P.2d 808 (1986), examined the contents of a defendant's trash placed on the curb for pickup, Boland, 115 Wash.2d at 578, 800 P.2d 1112, randomly checked hotel registries to determine who were guests at a hotel, State v. Jorden, 160 Wash.2d 121, 131, 156 P.3d 893 (2007), attached a global positioning system tracking device to a defendant's vehicle, State v. Jackson, 150 Wash.2d 251, 264, 76 P.3d 217 (2003), and read through text messages on a cell phone. Hinton, 179 Wash.2d at 865, 319 P.3d 9.
¶24 On the other hand, no private affairs were deemed violated when the State used Department of Licensing records, State v. McKinney, 148 Wash.2d 20, 30, 60 P.3d 46 (2002), power usage records, In re Pers. Restraint of Maxfield, 133 Wash.2d 332, 354, 945 P.2d 196 (1997), or saliva voluntarily placed on an envelope. Athan, 160 Wash.2d at 372, 158 P.3d 27.¶25 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 Wash.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 Wash.2d at 869, 319 P.3d 9. 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.
Although a plurality in Maxfield found an article I, section 7 violation, five justices agreed that article I, section 7 did not protect power usage records. See generally Maxfield, 133 Wash.2d 332, 945 P.2d 196.
A. Historical Protections
¶26 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 Wash.2d 103, 112, 960 P.2d 927 (1998) (quoting Young, 123 Wash.2d at 185, 867 P.2d 593 ). 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 Wash.2d at 112 n.6, 960 P.2d 927.
¶27 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.
¶28 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.
¶29 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 of a Person's Life
¶30 When historical protections, among other considerations, are not dispositive, the most important inquiry is whether the challenged action potentially reveals intimate details of a person's life. See Jorden, 160 Wash.2d at 128-29, 156 P.3d 893. Washington courts have found that an individual's intimate affairs are revealed if a search divulges: the places where an individual travels, "reveal[ing] preferences, alignments, associations, personal ails and foibles," Jackson, 150 Wash.2d at 262, 76 P.3d 217, the "contents of people's text messages[, which] exposes a 'wealth of detail about [a person's] familial, political, professional, religious, and sexual associations,' " Hinton, 179 Wash.2d at 869, 319 P.3d 9 (second alteration in original) (quoting United States v. Jones, 565 U.S. 400, 415, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) ), and whether a person is present or not in a hotel room, Jorden, 160 Wash.2d at 129, 156 P.3d 893. The thread running through these examples is the disclosure of beliefs or associations, whether familial, political, religious, or sexual, as well as the disclosure of intimate or personally embarrassing information.
¶31 Our case law views the home as the type of property that secures an individual's most personal possessions and conduct. "In no area is a citizen more entitled to his privacy than in his or her home," Young, 123 Wash.2d at 185, 867 P.2d 593, and " 'the closer officers come to intrusion into a dwelling, the greater the constitutional protection.' " Id. (quoting State v. Chrisman, 100 Wash.2d 814, 820, 676 P.2d 419 (1984) ). Thus, in determining whether Pippin's private affairs were disturbed, we examine the characteristics his tent shares, and does not share, with a dwelling.
¶32 In Silverman v. United States, 365 U.S. 505, 512 n.4, 81 S.Ct. 679, 5 L.Ed.2d 734 (1961), the United States Supreme Court spoke to this question:
"A man can still control a small part of his environment, his house; he can retreat thence from outsiders, secure in the knowledge that they cannot get at him without disobeying the Constitution. That is still a sizable hunk of liberty—worth protecting from encroachment. A sane, decent, civilized society must provide some such oasis, some shelter from public scrutiny, some insulated enclosure, some enclave, some inviolate place which is a man's castle."
(Emphasis added) (quoting United States v. On Lee, 193 F.2d 306, 315-16 (2nd Cir. 1951) ).
¶33 Similarly, Rakas v. Illinois, 439 U.S. 128, 142-43, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), recognized that the traditional home is not the only place in which a person should have privacy protection:
We think that Jones
on its facts merely stands for the unremarkable proposition that a person can have a legally sufficient interest in a place other than his own homeso that the Fourth Amendment protects him from unreasonable governmental intrusion into that place.
(Emphasis added.)
¶34 Silverman and Rakas counsel that an individual can have a privacy interest in a place other than a traditional home and, according to Silverman, society must allow some place where individuals are free from unreasonable searches.
¶35 Courts have already recognized zones of privacy for homeless individuals by finding that their closed baggage and containers are protected because it would reveal their personal matters. See, e.g., State v. Mooney, 218 Conn. 85, 588 A.2d 145, 152, 154 (1991) (privacy right in duffel bag and cardboard box). Further, our Supreme Court has stated that "readily recognizable personal effects are protected from search to the same extent as the person to whom they belong." State v. Parker, 139 Wash.2d 486, 498-99, 987 P.2d 73 (1999). That is, "[p]ersonal items may be 'so intimately connected with' an individual that a search of the items constitutes a search of the person." Id. (quoting State v. Hill, 123 Wash.2d 641, 643-44, 870 P.2d 313 (1994) ).
¶36 Under the case law set out above, the more Pippin's tent served as a refuge or retreat from the outside world, the more it could be the repository of objects or information showing his familial, political, religious, or sexual associations or beliefs, and the more it could contain objects intimately connected with his person, then the more his tent and the belongings within should be considered part of his private affairs under article I, section 7.
¶37 Pippin's tent allowed him one of the most fundamental activities which most individuals enjoy in private—sleeping under the comfort of a roof and enclosure. Cf. Jorden, 160 Wash.2d at 131, 156 P.3d 893 (guest sleeping at hotel has privacy interest). The tent also gave him a modicum of separation and refuge from the eyes of the world: a shred of space to exercise autonomy over the personal. These artifacts of the personal could be the same as with any of us, whether in physical or electronic form: reading material, personal letters, signs of political or religious belief, photographs, sexual material, and hints of hopes, fears, and desire. These speak to one's most personal and intimate matters.
¶38 The law is meant to apply to the real world, and the realities of homelessness dictate that dwelling places are often transient and precarious. The temporary nature of Pippin's tent does not undermine any privacy interest. See Jorden, 160 Wash.2d at 131, 156 P.3d 893 (hotel guest); Stoner v. State of Cal., 376 U.S. 483, 490, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) (hotel rooms); State v. Houvener, 145 Wash.App. 408, 416, 186 P.3d 370 (2008) (interior hallways of a dormitory) (collecting cases). Nor does the flimsy and vulnerable nature of an improvised structure leave it less worthy of privacy protections. For the homeless, those may often be the only refuge for the private in the world as it is.
¶39 Under the case law above, Pippin's tent was the sort of closed-off space that typically shelters the intimate and discrete details of personal life protected by article I, section 7.
¶40 The State argues that because Pippin was wrongfully occupying public property, the tent was not entitled to privacy protection, citing State v. Cleator, 71 Wash.App. 217, 857 P.2d 306 (1993), a decision by Division One of our court. In Cleator, police had information that a burglar fled into the woods behind the house he had entered. Id.at 218, 857 P.2d 306. In the woods, police found an unoccupied tent unlawfully erected on public land. Id.at 218, 222, 857 P.2d 306. After determining that no one was present, the officer opened the flap of the tent and observed items that matched the reported stolen goods from the burgled home. See id.at 218, 857 P.2d 306.¶41 In examining whether Cleator had a reasonable expectation of privacy in the tent under the Fourth Amendment, the court stated:
Lance Cleator ... wrongfully occupied public land by living in a tent erected on public property. The public property was not a campsite, and it is undisputed that ... Cleator ... [lacked] permission to erect a tent in that location. Under these circumstances, he could not reasonably expect that the tent would remain undisturbed. As a wrongful occupant of public land, Cleator had no reasonable expectation of privacy at the campsite because he had no right to remain on the property and could have been ejected at any time. ... Officer Denevers only raised the tent flap and observed what was clearly visible and seized only that which he knew to be wrongfully obtained. Because he did not disturb Cleator's personal effects, his actions did not violate Cleator's limited expectation of privacy.
Id.at 222, 857 P.2d 306 (citations and footnotes omitted). The court then turned to whether article I, section 7 provided Cleator a privacy interest, finding that
[a]lthough article [I], section 7 provides greater protection for privacy interests than the Fourth Amendment, Cleator's claim of unreasonable search and seizure also fails on independent state grounds. No case has been cited nor has our research disclosed any authority indicating that our citizens have ever held unlimited privacy rights to property they wrongfully occupied. We hold that Officer Denevers' look into the tent and limited entry to retrieve stolen property did not unreasonably intrude into Cleator's private affairs because
Cleator's personal effects were not disturbed.
Id.at 223, 857 P.2d 306 (citation omitted).
¶42 We decline to follow Cleator for several reasons. First, Cleator predominantly analyzed the Fourth Amendment in determining that Cleator's privacy interests were not violated. Further, in coming to its conclusion, Cleator heavily relied on the proposition that other federal circuits had "rejected an individual's claim to a right of privacy in the temporary shelter he or she wrongfully occupies on public property." Id.at 220, 857 P.2d 306 (citing United States v. Ruckman, 806 F.2d 1471, 1472-73 (10th Cir. 1986) ; Amezquita v. Hernandez-Colon, 518 F.2d 8, 11 (1st Cir. 1975) ). Those cases, though, have been called into question by the 9th Circuit, which has held that the reasonableness of an individual's expectation of privacy is not lessened when he or she wrongfully occupies public property. See Sandoval, 200 F.3d at 661 n.4 (noting its disagreement with Ruckman ).
¶43 Finally, Division One itself has now departed from Cleator's view that unlawfully occupying land diminishes one's privacy rights. In State v. Wyatt, noted at 187 Wash.App. 1004, 2015 WL 1816052 (2015) (unpublished), the defendant was illegally camped in a park with other individuals. Id.at *1. Police contacted Wyatt and told him he had 24 hours to vacate the campsite. Id. A few hours later, police returned and searched two closed containers located outside of Wyatt's tent, where they found methamphetamine and drug paraphernalia. Id. Division One agreed with Wyatt that this search unlawfully violated his privacy interests in the closed containers located outside his tent. Id. at *14.
Under GR 14.1(c), we may cite and discuss an unpublished opinion when, as here, it is necessary for a reasoned decision.
¶44 Wyatt's article I, section 7 analysis did not address Cleator. Its Fourth Amendment analysis distinguished Cleator in part by noting that Cleator had been called into question by the holding in Sandoval, 200 F.3d at 661, that a person's expectation of privacy does not turn on whether an individual has a right to remain on the land. See Wyatt, noted at 187 Wash.App. at *8-12, 2015 WL 1816052. Thus, in both its holding and analysis, Division One of our court has departed from Cleator.
¶45 Cleator's holding is inconsistent with Sandoval, and its rationale was abandoned by Wyatt. For these and the other reasons just noted, we join the approach of Sandoval and Wyatt and hold that Pippin's privacy interests are not diminished by his lack of permission to camp at that location.
Our opinion does not address the State's right to arrest for misdemeanors, nor do we opine whether a privacy right would play any role in an eviction.
¶46 The second consideration, whether the disclosure of intimate and personal details of a person's life is at stake, weighs in favor of Pippin having a privacy interest.
C. Implications of Recognizing the Privacy Interest
¶47 We next turn to the final consideration, an examination of the "current implications of recognizing or not recognizing the interest." Walker, 157 Wash.2d at 314, 138 P.3d 113. In acknowledging this consideration, the Walker court drew on the analysis in McKinney, 148 Wash.2d at 29, 60 P.3d 46, which, after concluding its historical review, examined the nature and extent to which police learned about a person's personal contacts and associations as a result of the government conduct. McKinney's subsequent analysis made clear it was concerned with whether the State's action would disclose "intimate details of the defendants' lives, their activities, or the identity of their friends or political and business associates," id.at 30, 60 P.3d 46, also including financial dealings and movements. Id. at 32, 60 P.3d 46. This inquiry, the court specified, involves the extent to which the subject matter is voluntarily exposed to the public, id.at 30, 60 P.3d 46, and consideration of the purpose served by the State's action. Id. at 32, 60 P.3d 46.
¶48 Turning first to the nature of the information obtained, the analysis in Part II, B, above, makes clear that denying Pippin the protections of article I, section 7 in his tent would expose to state scrutiny precisely the sort of intimate and personal information with which the McKinney court was concerned. This inquiry leans heavily in favor of constitutional protection.
¶49 Next, Pippin did not voluntarily expose this sort of information to public scrutiny. Some may argue that Pippin did so by choosing to live in a tent on public land in the middle of a city. Our legislature, however, has found 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.
RCW 43.185C.005. Against this backdrop, to call homelessness voluntary, and thus unworthy of basic privacy protections is to walk blind among the realities around us. Worse, such an argument would strip those on the street of the protections given the rest of us directly because of their poverty. Our constitution means something better.
¶50 Finally, as to purpose, the city was engaged in a laudable effort to inform Pippin and others of new camping regulations and the consequences of not complying. Although important, this purpose is only a feather in the balance against ensuring the privacy of the intimate and personal details that lie at the heart of article I, section 7.
¶51 Thus, the third criterion, the implications of recognizing or not recognizing the interest, weighs in favor of Pippin having a privacy interest.
D. Conclusion
¶52 King Lear, stripped of purse and crown, saw his kingdom as for the first time:
Poor naked wretches. ...
....
How shall your houseless heads and unfed sides, Your loop'd and windowed raggedness defend you From seasons such as these? O, I have ta'en Too little care of this! Take physic, pomp; Expose thyself to feel what wretches feel, That thou mayst ... show the heavens more just.
King Lear, William Shakespeare, Act 3, Scene 4, Lines 32-41 (1606).¶53 These words remind us that the law is something more than a stay against anarchy or oil for the wheels of trade. Its work also is to bring signs of justice amid our thirsts and furies and, in doing so, remind us of our humanity.
¶54 All three examined factors—the historical protections, the intimate details revealed from a search, and the implications of recognizing the interest—weigh in favor of finding that Pippin's tent functioned as part of his private affairs worthy of protection from unreasonable intrusions. Accordingly, we hold that Pippin's tent and its contents fell among those "privacy interests which citizens of this state ... should be entitled to hold, safe from governmental trespass absent a warrant." Myrick, 102 Wash.2d at 511, 688 P.2d 151. As such, Pippin's tent and contents are protected under article I, section 7 of the Washington Constitution.
¶55 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record in accordance with RCW 2.06.040, it is so ordered.
We concur:
Worswick, J.
Lee, J.