State v. Jackson

76 P.3d 217

150 Wash.2d 251

STATE of Washington, Respondent, v. William Bradley JACKSON, Petitioner.

No. 72799-6.

Supreme Court of Washington, En Banc.

Argued May 20, 2003.

Decided September 11, 2003.

Paul J. Wasson, Spokane, for petitioner.

Steven Tucker, Spokane County Prosecutor, Kevin Korsmo, Deputy, Spokane, for respondent.

Douglas B. Klunder, Seattle, on behalf of the American Civil Liberties Union of Washington, amicus curiae.

MADSEN, J.

Petitioner William Bradley Jackson maintains that a warrant is required under article I, section 7 of the Washington State Constitution before police may attach global positioning system (GPS) devices to a vehicle in order to track the driver's movements. We agree. However, because in this case the police obtained valid warrants, we find no constitutional violation. In addition, we affirm a ruling denying Jackson's motion for a change of venue due to pretrial publicity, affirm his conviction, and uphold the exceptional sentence imposed.

Facts

On October 18, 1999, Jackson called 911 at 8:45 a.m. to report that his nine-year-old daughter Valiree was missing from their residence in the Spokane Valley. Immediately, volunteers joined sheriff's personnel and canine units in a thorough search of the neighborhood. Deputy Scott Nelson arrived at the Jackson residence, where Valiree and Jackson had lived with his parents the previous seven months. Nelson interviewed Jackson's mother, who said she kissed a sleeping Valiree good-bye as she left for work a little before 4:30 that morning. Jackson said he had last seen Valiree at 8:15 a.m. in the front yard. Her backpack was on the front porch.

Detective Madsen, who also responded, saw bloodstains on Valiree's pillow and faded blood on the bed sheet. Jackson explained that Valiree had a nose bleed the night before, but Madsen saw nothing used to stop a nosebleed. Madsen took the bedding for analysis. Detectives soon believed that Jackson had something to do with his daughter's disappearance. They informed him of their suspicion that he may have removed Valiree from the home.

On October 23, 1999, police obtained a warrant to search the residence and impound and search Jackson's two vehicles, a 1995 Ford pickup and a 1985 Honda Accord (warrant # 1). On October 26, Detective Knechtel obtained a 10-day warrant (warrant # 2) to attach GPS devices to the two vehicles while they were still impounded. The devices were connected to the vehicles' 12-volt electrical systems. Use of the GPS devices allowed the vehicles' positions to be precisely tracked when data from the devices was downloaded. The vehicles were returned to Jackson but he was not informed about installment of the devices. Detective Madsen did inform Jackson that the police believed he had hastily buried Valiree's body, that animals would likely dig her up, and that the body would be found and used as evidence against him. Knechtel obtained a second 10-day warrant to maintain the GPS devices on the vehicles (warrant # 3).

Data from the GPS device on the truck showed that on November 6, 1999, Jackson drove to his storage unit and then to a remote location on a logging road, the Springdale site, where the truck was motionless for about 45 minutes. Data showed that on November 10, 1999, Jackson made a trip to another remote location (the Vicari site) where he remained about 16 minutes, and then traveled to the Springdale site where the truck remained stopped for about 30 minutes, then left and stopped several other places, including the storage unit. Investigators discovered Valiree's body in a shallow grave at the Springdale site, and found evidence at the Vicari site (two plastic bags with duct tape containing hair and blood—the duct tape edge matched duct tape later found at Jackson's residence in a search pursuant to another warrant).

On November 13, 1999, after stopping at his storage unit, Jackson borrowed his neighbor's truck, telling the neighbor he had a job to finish. He borrowed the truck, he said, because he suspected he was being followed. Hunters near the Springdale site saw him in a pickup truck close to the Springdale gravesite. When Jackson returned the truck, he left a shovel in it.

A warrant was issued for Jackson's arrest that same day. In the evening police stopped him, noting that he had been driving around with an unloaded shotgun in the vehicle and acting suicidal. He was initially hospitalized but later released and charged with Valiree's murder.

At trial, the evidence showed that Valiree suffocated. From jail Jackson wrote to his parents claiming a new hunting buddy "Craig" may have kidnapped Valiree. He subsequently admitted making this up. Instead, his defense at trial was that Valiree overdosed on a prescription antidepressant prescribed for her by her counselor. He testified at trial that he thought that the police would blame him for the death since he had been a suspect in the unexplained 1992 disappearance of Valiree's mother, and therefore he panicked and buried the body. The State presented substantial evidence that Jackson killed Valiree because he saw her as an impediment to his reuniting with his former girlfriend. Valiree and the girlfriend did not get along.

There was considerable media coverage of Valiree's disappearance and subsequent events. Jackson moved several times for a change of venue due to pretrial publicity; his motions were denied. Following his trial, on October 5, 2000, a jury returned a verdict of guilty of first degree murder. The court denied Jackson's motion for a new trial or arrest of judgment due to cumulative error. The court imposed an exceptional sentence of 672 months based upon several aggravating factors, including the impact of the crime on the community.

Jackson appealed and the Court of Appeals affirmed. State v. Jackson, 111 Wash.App. 660, 46 P.3d 257 (2002), review granted, 148 Wash.2d 1008, 62 P.3d 889 (2003). Among other things, that court concluded that the warrants authorizing installation and use of the GPS devices were unnecessary under article I, section 7 of the Washington State Constitution; the court thus did not reach the merits of Jackson's challenge to issuance of the warrants.

This court granted Jackson's petition for discretionary review. While he raised numerous arguments on appeal, he has abandoned many of them and now raises only four in his petition for review. The American Civil Liberties Union (ACLU) of Washington was granted leave to file an amicus brief on the issue of whether installation and use of a GPS device on a suspect's vehicle requires a warrant under article I, section 7.

Analysis

The Court of Appeals held that warrantless installation and use of a GPS device on a private vehicle does not violate article I, section 7. That court appears to have reasoned that because no warrant is required, it is unnecessary to decide whether the warrants that the police actually obtained in this case were supported by probable cause. Accordingly, the first question before us is whether the Court of Appeals erred in its holding that installation and use of GPS devices on vehicles does not constitute a search or seizure under article I, section 7 of the Washington State Constitution.¹

Article I, section 7 provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." It is now settled that article I, section 7 is more protective than the Fourth Amendment, and a Gunwall analysis is no longer necessary. State v. Vrieling, 144 Wash.2d 489, 495, 28 P.3d 762 (2001) (citing State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986)). The inquiry under article I, section 7 is broader than under the Fourth Amendment to the United States Constitution, and focuses on "those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass." State v. Myrick, 102 Wash.2d 506, 511, 688 P.2d 151 (1984). Thus, whether advanced technology leads to diminished subjective expectations of privacy does not resolve whether use of that technology without a warrant violates article I, section 7. 102 Wash.2d at 514, 688 P.2d 151; State v. Young, 123 Wash.2d 173, 181-82, 867 P.2d 593 (1994).

Where a law enforcement officer is able to detect something at a lawful vantage point through his or her senses, no search occurs under article I section 7. State v. Seagull, 95 Wash.2d 898, 901, 632 P.2d 44 (1981); Young, 123 Wash.2d at 182, 867 P.2d 593. "[W]hat is voluntarily exposed to the general public and observable without the use of enhancement devices from an unprotected area is not considered part of a person's private affairs." Young, 123 Wash.2d at 182, 867 P.2d 593. The court has also affirmed as constitutional searches involving sense-enhancing devices such as binoculars or a flashlight, allowing police to see more easily what is open to public view. Young, 123 Wash.2d at 183 n. 1, 867 P.2d 593 (citing State v. Manly, 85 Wash.2d 120, 124, 530 P.2d 306 (1975) (binoculars)); State v. Rose, 128 Wash.2d 388, 400-01, 909 P.2d 280 (1996) (flashlight). "However, a substantial and unreasonable departure from a lawful vantage point, or a particularly intrusive method of viewing, may constitute a search." Young, 123 Wash.2d at 182-83, 867 P.2d 593 (emphasis added). Thus, where police used an infrared thermal device to detect heat distribution patterns within a home that were not detectable by the naked eye or other senses, the surveillance was a particularly intrusive means of observation that exceeded allowable limits under article I, section 7. Young, 123 Wash.2d at 182-84, 867 P.2d 593.

The court has also noted that the nature and extent of information obtained by the police, for example, information concerning a person's associations, contacts, finances, or activities is relevant in deciding whether an expectation of privacy an individual has is one which a citizen of this state should be...