State v. Eisfeldt

185 P.3d 580

163 Wn.2d 628

STATE of Washington, Respondent, v. Jason Gregory EISFELDT, Petitioner.

No. 79947-4.

Supreme Court of Washington, En Banc.

Argued January 24, 2008.

Decided June 5, 2008.

Clifford F. Cordes, Cordes Brandt PLLC, Olympia, WA, for Petitioner.

Thurston County Prosecutor's Office, David Harold Bruneau, Olympia, WA, for Respondent.

SANDERS, J.

¶ 1 On August 5, 2003, a repairman saw what he believed to be the remains of a marijuana growing operation in a Lacey house and called the police. When the police arrived the repairman let them into the house to show them what he had seen. The police then sought, and were granted, a telephonic warrant to search the rest of the house. In the course of the search and subsequent investigation, the police found an active marijuana growing operation in a second house. After a stipulated facts trial, Jason Eisfeldt was found guilty of two counts of manufacturing a controlled substance. The Court of Appeals affirmed. We granted review and reverse.

FACTS AND PROCEDURAL HISTORY

¶ 2 In January 2003, James Wege leased a house in Lacey, Washington (the Lacey house), where Eisfeldt lived.¹ On August 5, 2003, Michael Piper, a repairman called by the owner, arrived at the Lacey house to repair a diesel spill in the living room. Eisfeldt left a key to the house under the mat for Piper. To ventilate the diesel fumes, Piper went into the attached garage to open the garage door. Piper noticed foam sealant surrounding the garage door, which he broke to open the garage door. After opening the door, Piper saw a garbage bag on the floor and looked inside. The bag contained a large amount of what he believed to be marijuana, silver reflective material, and wiring. Piper became suspicious and called the police.

¶ 3 Detectives Stahle and Elkins, of the Thurston County Narcotics Task Force (TNT), were sent to the Lacey house to meet Piper. When they arrived Piper brought the detectives inside the house and showed them the spill in the living room. Piper then led the detectives through the living room and into the attached garage. Once they were in the garage, the detectives saw the foam sealant around the garage door and the heavy duty wiring. The police looked inside the garbage bag and saw a bucket containing some dried marijuana "shake" and Mylar. At this point the detectives suspended their search and sought a warrant.

¶ 4 Detective Elkins obtained a telephonic search warrant for the Lacey house based largely on his observations during this search of the Lacey house. The TNT executed the search warrant and gathered evidence against Wege, Eisfeldt, and Ben Charles. Following this second search Elkins believed, based on his experience and training, the house had contained a marijuana grow operation. On August 27, 2003 based on the evidence seized in the Lacey house, Detective Elkins sought, and was granted, a search warrant for a second residence, this one in Olympia (the Olympia house). When the police served this warrant, they discovered an active marijuana growing operation. Eventually, Wege, Charles, and Eisfeldt admitted to growing marijuana in both the Lacey and Olympia houses.

¶ 5 Eisfeldt was charged with two counts of unlawful manufacture of a controlled substance with a school bus enhancement. Arguing the searches were unconstitutional, Eisfeldt sought to suppress the evidence collected during the searches of the Lacey and Olympia houses. The trial court denied Eisfeldt's motion. Following the denial of his suppression motion, Eisfeldt agreed to a stipulated facts trial. The trial court found Eisfeldt guilty of both counts.

¶ 6 Eisfeldt timely appealed the order denying his suppression motion to the Court of Appeals. He claimed the warrantless search of the Lacey house by the police violated the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution. He also claimed, even if the Lacey search was appropriate, the warrant issued for the Olympia house was not based on probable cause because there was an insufficient nexus to demonstrate a likelihood of illegal activity at the Olympia house. The Court of Appeals held no warrant was required for the initial police search because it did not go beyond the scope of the private search. The Court of Appeals further held the affidavit supporting the warrant for the Olympia house established a sufficient nexus to establish probable cause.² We granted review. State v. Eisfeldt, 162 Wash.2d 1005, 175 P.3d 1094 (2007).

STANDARD OF REVIEW

¶ 7 "Unchallenged findings of fact entered following a suppression hearing are verities on appeal." State v. Gaines, 154 Wash.2d 711, 716, 116 P.3d 993 (2005). "We review a trial court's conclusions of law in an order pertaining to suppression of evidence de novo." State v. Carneh, 153 Wash.2d 274, 281, 103 P.3d 743 (2004).

ANALYSIS

¶ 8 Although they protect similar interests, "the protections guaranteed by article I, section 7 of the state constitution are qualitatively different from those provided by the Fourth Amendment to the United States Constitution." State v. McKinney, 148 Wash.2d 20, 26, 60 P.3d 46 (2002). The Fourth Amendment protects only against "unreasonable searches" by the State, leaving individuals subject to any manner of warrantless, but reasonable searches. U.S. Const. amend. IV ("The right of the people to be secure in their ... houses ... against unreasonable searches ... shall not be violated ...."); Illinois v. Rodriguez, 497 U.S. 177, 187, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) ("[W]hat is at issue ... is not whether the right to be free of searches has been waived, but whether the right to be free of unreasonable searches has been violated.").

¶ 9 By contrast article I, section 7 is unconcerned with the reasonableness of the search, but instead requires a warrant before any search, reasonable or not. Const. art. I, § 7 ("No person shall be disturbed in his private affairs, or his home invaded, without authority of law."). This is because "[u]nlike in the Fourth Amendment, the word `reasonable' does not appear in any form in the text of article I, section 7 of the Washington Constitution." State v. Morse, 156 Wash.2d 1, 9, 123 P.3d 832 (2005). Understanding this significant difference between the Fourth Amendment and article I, section 7 is vital to properly analyze the legality of any search in Washington.

(1) The warrantless search of the Lacey house by the police was contrary to article I, section 7 of the Washington Constitution

¶ 10 Article I, section 7's blanket prohibition against warrantless searches is subject to a few well guarded exceptions. "Absent an exception to the warrant requirement, a warrantless search is impermissible under ... article I, section 7 of the Washington Constitution." Gaines, 154 Wash.2d at 716, 116 P.3d 993 (citing State v. Johnson, 128 Wash.2d 431, 446-47, 909 P.2d 293 (1996)). This constitutional protection is at its apex "where invasion of a person's home is involved." City of Pasco v. Shaw, 161 Wash.2d 450, 459, 166 P.3d 1157 (2007), cert. denied, ___ U.S. ___, 128 S.Ct. 1651, ___ L.Ed.2d ___ (2008). Exceptions to the warrant requirement are narrowly drawn, and "[t]he State bears a heavy burden in showing that the search falls within one of the exceptions." State v. Jones, 146 Wash.2d 328, 335, 45 P.3d 1062 (2002). Here the State fails to carry this heavy burden to show an exception applies.³

¶ 11 The State argues because the search did not go beyond the scope of Piper's search, the police search was constitutional under the private search doctrine. See United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984); State v. Dold, 44 Wash.App. 519, 722 P.2d 1353 (1986). However, the private search doctrine is inapplicable under the Washington Constitution.⁴ The State also argues the detectives were given consent to search the Lacey house by Piper or had a reasonable basis to believe they had consent. But Piper had no authority to consent, and article I, section 7 is unconcerned with the reasonable belief of the police officers.

(a) The private search doctrine is contrary to the Washington Constitution

¶ 12 Under the private search doctrine a warrantless search by a state actor does not offend the Fourth Amendment if the search does not expand the scope of the private search. The doctrine was first espoused in Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980), and later applied in Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, to sanction a warrantless search by state actors. Underlying this doctrine is the rationale that an individual's reasonable expectation of privacy is destroyed when the private actor conducts his search. Id. at 119, 104 S.Ct. 1652. Where the State does not violate an individual's reasonable expectation of privacy, the Fourth Amendment is not offended. Id.

¶ 13 Here article I, section 7 provides greater protection from state action than does the Fourth Amendment. State v. Simpson, 95 Wash.2d 170, 178, 622 P.2d 1199 (1980).⁵ The analysis under article I, section 7 begins with a determination of whether the State has intruded into a person's private affairs.⁶ State v. Boland, 115 Wash.2d 571, 577, 800 P.2d 1112 (1990). Unlike the Fourth Amendment and its reasonability determination, article I, section 7 protections are not "confined to the subjective privacy expectations of modern citizens." State v. Myrick, 102 Wash.2d 506, 511, 688 P.2d 151 (1984). Instead article I, section 7 protects "those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant." Id.

¶ 14 We have repeatedly held the privacy protected by article I, section 7 survived where the reasonable expectation of privacy under the Fourth Amendment was destroyed. For example in Boland, 115 Wash.2d at 578, 800 P.2d 1112, this court found a warrantless search...