State Of Washington v. William R. Pippin ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
October 10, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 48540-1-II
Appellant, PART PUBLISHED OPINION
v.
WILLIAM PIPPIN,
Respondent.
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.
No. 48540-1-II
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 In the unpublished portion,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.
FACTS
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
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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
1
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.
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No. 48540-1-II
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
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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.
2
The State does not argue that Pippin consented to the search.
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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.
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ANALYSIS
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 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 (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 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. “The only
relevant question is whether article I, section 7 affords enhanced protection in the particular
context.”3 Id.
3
State v. Gunwall, 106 Wash. 2d 54, 720 P.2d 808 (1986).
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No. 48540-1-II
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. 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.
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 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.
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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, 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.
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),4 or saliva voluntarily placed on an envelope. Athan, 160 Wash. 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 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
4
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.
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No. 48540-1-II
person’s life. Hinton, 179 Wash. 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 Wash. 2d 103, 112, 960 P.2d 927 (1998) (quoting Young, 123
Wash. 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 Wash. 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
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[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 of a Person’s Life
When historical protections, among other considerations, are not dispositive, the most
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important inquiry is whether the challenged action potentially reveals intimate details of a
person’s life. See Jorden, 160 Wash. 2d at 128-29. 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, 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 (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. 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.
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, 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.
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
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No. 48540-1-II
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 Circ. 1951)).
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 home so that the Fourth Amendment protects him from unreasonable
governmental intrusion into that place.
(Emphasis added.)
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.
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)).
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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.
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 (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.
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 (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.
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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.
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. In the woods, police
found an unoccupied tent unlawfully erected on public land. Id. at 218, 222. 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.
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 (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
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No. 48540-1-II
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 (citation omitted).
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 (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).
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) (unpublished),5 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
5
Under GR 14.1(c), we may cite and discuss an unpublished opinion when, as here, it is
necessary for a reasoned decision.
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No. 48540-1-II
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.
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 Wn. App. at *8-
12. Thus, in both its holding and analysis, Division One of our court has departed from Cleator.
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.6
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
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. In acknowledging this
consideration, the Walker court drew on the analysis in McKinney, 148 Wash. 2d at 29, which, after
concluding its historical review, examined the nature and extent to which police learned about a
6
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.
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No. 48540-1-II
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, also including financial dealings and movements. Id.
at 32. This inquiry, the court specified, involves the extent to which the subject matter is
voluntarily exposed to the public, id. at 30, and consideration of the purpose served by the
State’s action. Id. at 32.
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.
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.
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No. 48540-1-II
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.
Thus, the third criterion, the implications of recognizing or not recognizing the interest,
weighs in favor of Pippin having a privacy interest.
D. Conclusion
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).
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.
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
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No. 48540-1-II
a warrant.” Myrick, 102 Wash. 2d at 511. As such, Pippin’s tent and contents are protected under
article I, section 7 of the Washington Constitution.
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.
III. EXCEPTIONS TO WARRANT REQUIREMENT
The State argues that even if Pippin had a constitutionally protected privacy interest in his
tent and belongings, the officers were justified in looking into Pippin’s tent (1) to conduct a
protective sweep of the area incident to his arrest and (2) to protect officer safety under the
exigent circumstances presented. We hold that the protective sweep exception is not applicable
and that the trial court erred in using a balancing test to determine whether officer safety
concerns justified the search. However, the findings of fact and record are insufficient to
determine whether the officer safety exigency would apply in these circumstances. Thus, we
reverse the suppression order and remand for further proceedings.
As a general rule, warrantless searches are per se unreasonable. State v. Hendrickson,
129 Wash. 2d 61, 70, 917 P.2d 563 (1996). However, there are a few jealously and carefully drawn
exceptions to this rule, including those for protective sweeps incident to arrest and exigent
circumstances. Id.
A. Protective Sweep
“A ‘protective sweep’ is a quick and limited search of premises, incident to an arrest and
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No. 48540-1-II
conducted to protect the safety of police officers or others.” Maryland v. Buie, 494 U.S. 325,
327, 110 S. Ct. 1093, 108 L. Ed. 2d 276 (1990) (emphasis added). It is narrowly confined to a
cursory visual inspection of those places in which a person might be hiding. Id. “The concept of
a protective sweep was adopted to justify the reasonable steps taken by arresting officers to
ensure their safety while making an arrest.” State v. Boyer, 124 Wash. App. 593, 600, 102 P.3d
833 (2004) (emphasis added).
When approaching Pippin’s tent, Chavers and Donaldson had not decided whether they
would give Pippin notice that he was violating the revised ordinance or whether they would cite
and arrest him. Further, none of the officers’ statements to Pippin indicated that they had
decided to place him under arrest. Thus, because the State fails to show that an arrest was taking
place, the protective sweep exception does not apply.
B. Exigent Circumstances—Officer Safety
In general, the exigent circumstances exception to the warrant requirement applies when
obtaining a warrant is not practical because the delay inherent in securing it would compromise
officer safety, facilitate escape, or permit the destruction of evidence. State v. Tibbles, 169
Wash. 2d 364, 370, 236 P.3d 885 (2010). “Exigent circumstances involve a true emergency.” State
v. Cruz, 195 Wash. App. 120, 125, 380 P.3d 599 (2016), review granted, 399 P.3d 1104 (2017).
Our case law does not prescribe a balancing test to determine whether exigent
circumstances are present. Instead, the State “bears a heavy burden” and “must establish the
exception to the warrant requirement by clear and convincing evidence.” State v. Garvin, 166
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No. 48540-1-II
Wn.2d 242, 250, 207 P.3d 1266 (2009). In determining whether the State has met its burden, a
court evaluates whether an exigency exists based on the totality of the circumstances presented to
the officers. State v. Smith, 165 Wash. 2d 511, 518, 199 P.3d 386 (2009); Tibbles, 169 Wash. 2d at
372. Specifically, Washington courts
use[] six factors as a guide in determining whether exigent circumstances justify a
warrantless entry and search: (1) the gravity or violent nature of the offense with
which the suspect is to be charged; (2) whether the suspect is reasonably believed
to be armed; (3) whether there is reasonably trustworthy information that the
suspect is guilty; (4) there is strong reason to believe that the suspect is on the
premises; (5) a likelihood that the suspect will escape if not swiftly apprehended;
and (6) the entry is made peaceably.
State v. Cardenas, 146 Wash. 2d 400, 406, 47 P.3d 127, 57 P.3d 1156 (2002).
Here, the trial court’s conclusions of law 9 through 12 read:
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.
We read these conclusions of law to use a balancing test to determine whether either the
protective sweep exception or the exigent circumstances exception based on officer safety apply.
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No. 48540-1-II
The protective sweep exception does not apply for the reasons discussed above. The Cardenas
criteria for exigent circumstances, set out above, do not incorporate a balancing test. Thus, the
trial court failed to apply the correct legal standard by using a balancing test instead of the
Cardenas criteria in determining whether officer safety justified the search.
The record before us speaks to some of the Cardenas criteria. For example, the nature of
Pippin’s offense was not severe or violent and there was no assertion that Pippin might escape.
The record also shows that Pippin delayed in coming out of his tent, that the officers heard
movement in the tent and could not confirm what Pippin was doing, and that the officers made a
limited search of his tent by only looking in.
The trial court also made findings that the officers were aware that some violent crimes
had occurred within the community and some of the homeless individuals carried improvised
weapons in the encampment. However, in Cruz we disapproved of using a generalized concern
that Cruz or his companion “could have posed a threat if they were dangerous” to justify a search
of Cruz’s truck during an arrest. 195 Wash. App. at 126. In State v. Chrisman, 100 Wash. 2d 814,
820, 676 P.2d 419 (1984), the court held that “warrantless entries . . . can only be permitted
under state law when the officer possesses specific articulable facts justifying custody and/or
entry into a private dwelling.”
Neither Cruz nor Chrisman deals with the sort of situation now before us; specific
information by police that some members of a category to which the subject belongs had been
armed. Because the group consisted only of approximately 100 individuals in a specific location,
23
No. 48540-1-II
we think this information may be considered in applying the Cardenas criteria. By itself,
though, the information is insufficient to justify a warrantless search.
Most importantly, the amount of time that passed from the first contact to when
Donaldson lifted a flap of the tent and looked in is critical to determining whether safety
concerns justified the warrantless search. As set out in the Facts, above, officer testimony about
the length of this period varied widely: from five seconds to about five minutes. As also shown
in the Facts, the findings do not establish the time from the beginning of the encounter to the
search.
We may remand a case to the trial court in situations where the findings of fact and
record do not provide a sufficient basis for appellate review. See State v. Bliss, 153 Wash. App.
197, 208-09, 222 P.3d 107 (2009); State v. Barber, 118 Wash. 2d 335, 348, 823 P.2d 1068 (1992).
With the widely varying testimony about elapsed time, the trial court would be in the best
position to make any weight or credibility determinations that would help narrow the range of
time elapsed. The trial court also has discretion whether to hold an additional hearing to attempt
to obtain more precise testimony about this time period and any considerations under Cardenas.
Remand would also allow the trial court to make its decision using the Cardenas considerations,
not an inapplicable balancing test.
To those ends, we reverse the orders suppressing the evidence and dismissing the charge
against Pippin and remand this case to the trial court to decide whether the exigent circumstances
of officer safety justified the search. The trial court shall make this decision using the
24
No. 48540-1-II
considerations from Cardenas, set out above. To the extent it can be reasonably based on the
evidence, the court shall determine more precisely the amount of time that passed from the
officers’ initial contact with Pippin to the time of the search. The trial court shall also enter
additional findings of fact and conclusions of law that are consistent with this opinion.
IV. CHALLENGES TO FINDINGS OF FACT
The State assigns error to findings of fact 7, 8, and 9, arguing that they are not supported
by substantial evidence in the record. Those 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 parties argue (1) whether the State invited error, (2) whether the trial court
appropriately took judicial notice of these matters, and (3) whether substantial evidence supports
the findings. We examine each issue in turn.
A. Invited Error
Pippin argues that the State invited error by proposing findings of fact 7, 8, and 9 and, as
such, is precluded from challenging them on appeal. We disagree.
The doctrine of invited error prohibits a party from setting up an error at trial and then
complaining of it on appeal. State v. Wakefield, 130 Wash. 2d 464, 475, 925 P.2d 183 (1996). Its
application to this appeal is controlled by Hughes v. Boundary Gold Placers, 193 Wash. 564,
25
No. 48540-1-II
568, 76 P.2d 611 (1938), in which the court held that it cannot “be invited error for an
unsuccessful litigant to present findings in accord with a previously announced decision.” That
is all the State did here; it presented findings in accord with the trial court’s oral decision on the
suppression motion. Accordingly, Pippin’s invited error argument fails.
B. Judicial Notice
The State argues that judicial notice cannot be used to establish the facts recited in
findings 7, 8, and 9. Pippin responds that the State waived its challenge to judicial notice by not
raising the issue to the trial court. We disagree that the State waived its challenges and hold that
taking judicial notice of the facts recited in these findings was not proper.
1. Legal Principles
We review de novo whether judicial notice was properly taken. Fusato v. Wash.
Interscholastic Activities Ass’n, 93 Wash. App. 762, 771, 970 P.2d 774 (1999). A judicially
noticed fact is one “not subject to reasonable dispute in that it is either (1) generally known
within the territorial jurisdiction of the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be questioned.” ER
201(b). “A court may take judicial notice, whether requested or not.” ER 201(c).
2. Waiver
Pippin argues that the State waived its judicial notice challenge to findings of fact 7, 8,
and 9 by failing to object in the trial court. Turning to finding of fact 7, the trial court announced
at the beginning of the CrR 3.6 hearing that the encampment in question was just two blocks
26
No. 48540-1-II
from the courthouse and that it had observed porta-potties being placed around it. The State did
not object. However, the trial court did not make clear that it was taking judicial notice of this
fact. Although the trial court stated that it was “important” to put its observation on the record, it
also stated that it was unsure whether the existence of porta-potties was “germane” or “really
relevant” to this case. RP at 7. This equivocal announcement did not give the State sufficient
notice that judicial notice was being taken and that it needed to object.
Pippin also argues that the State waived its judicial notice challenge to finding of fact 7
because it failed to object during the trial court’s observations that “[w]e can all take notice [the
encampment] could become a health concern with defecation and urination—so bringing porta-
potties in there.” RP at 74. However, the trial court made this comment in an exchange
concerning the legality of Pippin’s camping. The court’s taking notice that the encampment
could become a health concern does not reasonably convey that it was taking judicial notice that
porta-potties were in fact present. The State did not waive its judicial notice challenge to finding
of fact 7.
As to findings of fact 8 and 9, the trial court expressed the essence of those findings in its
oral ruling that
agencies were coming down there and delivering little huts and such to the
homeless people, and aiding them . . . and we had people who decided this was a
place to express their right to bear arms and walk around like a security force
somewhat.
RP at 93. The court never mentioned these facts until its oral ruling, which effectively deprived
the State of notice before the ruling that it needed to object to judicial notice.
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No. 48540-1-II
For these reasons, the State’s judicial notice challenges to findings of fact 7, 8, and 9 are
properly before us.
3. Merits of the Judicial Notice Challenge
Turning to the merits, nothing in the record suggests that findings of fact 7, 8, or 9 were
“(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate
and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”
ER 201(b). At best, it appears the trial judge relied on his own knowledge gathered from his
personal observations and reading newspapers that these facts were true. “Personal knowledge is
not judicial knowledge and the judge may personally know a fact of which he cannot take
judicial notice.” In re Estate of Hayes, 185 Wash. App. 567, 598, 342 P.3d 1161 (2015).
Accordingly, we hold that the record does not support that the trial court appropriately
took judicial notice of facts supporting findings 7, 8, and 9.
C. Substantial Evidence
Even if the trial court did not appropriately take judicial notice of findings 7, 8, and 9,
Pippin contends that those findings are supported by substantial evidence. “Substantial evidence
is evidence that is sufficient to persuade a fair-minded person of the truth of the stated premise.”
State v. Rooney, 190 Wash. App. 653, 658, 360 P.3d 913 (2015), review denied, 185 Wash. 2d 1032
(2016).
As to finding of fact 7, Pippin does not present argument that substantial evidence
supports this finding, nor does he point us to any evidence that does so. See id. It is not our role
to comb the record for evidence that might support a party’s argument. See In re Estate of Lint,
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No. 48540-1-II
135 Wash. 2d 518, 531-32, 957 P.2d 755 (1998). Therefore, we hold that finding of fact 7 is not
supported by substantial evidence.
Turning to finding of fact 8, Pippin argues that the following excerpts from Chavers’
testimony supply substantial evidence supporting it:
[Police] put together a project to go out and address the issue around the Sharehouse
as well as the surrounding neighborhoods, whether it involved RVs, cars, tents,
portable huts that were donated, and things like that.
....
[Sharehouse is] a social service agency. I mean this specific Sharehouse, they feed,
they allow for showers and laundry on occasion, some temporary storage of
property. It’s a place where a lot of homeless folks will visit for food or -- there’s
also outreach there, counsel for the homeless, and some other agencies that -- you
know, so they will network there for mail, I think sometimes job outreach kind of
things.
RP at 13, 27.
Finding of fact 8 reads: “Agencies were coming down and providing huts to the
homeless and aiding them.” CP at 35 (emphasis added). Chavers’ testimony supports that at
least one agency, Sharehouse, was providing portable huts and assistance to the homeless.
Nothing supports that any agency other than Sharehouse was lending its support. Whether one
agency or several were providing services is irrelevant to the sense of this finding, and the
finding itself plays no role in our resolution of this appeal. Thus, we do not further consider the
challenge to this finding.
Finding of fact 9 states that “[s]ome members of this community were expressing their
right to bear arms and were walking around like a security force.” CP at 35. Pippin argues that
the following excerpt from Chavers’ testimony supports the finding:
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No. 48540-1-II
So we assume that all the folks that were living down there had armed themselves
in one way or another because of calls for service unrelated to camping.
There had been assault calls, there had been a robbery, there had been some
other calls for service down there where folks had armed themselves with a bike
lock, camping implements, machetes, chain -- links of chain, things that people
have donated -- bike parts, and stuff like that.
RP at 35.
Nothing from Chavers’ testimony can be taken to support that individuals were walking
around like a security force. Further, Chavers’ testimony that people were carrying improvised
weapons is not substantial evidence that they were “expressing their right to bear arms.” Finding
of fact 9 is not supported by substantial evidence.
V. APPELLATE COSTS
Pippin asks that this court exercise its discretion to deny any appellate costs the State
requests. If the State requests appellate costs, Pippin may challenge that request before a
commissioner of this court under RAP 14.2.
CONCLUSION
We hold that Pippin’s tent and its contents are among those private affairs protected
under article I, section 7 of the Washington State Constitution. The warrantless search of his tent
was not justified as a protective sweep, but the trial court used an incorrect legal standard in
deciding that the search was not justified by concern for officer safety. Findings of fact 7 and 9
are not supported by substantial evidence and it is not necessary to consider the challenge to
finding of fact 8.
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No. 48540-1-II
Accordingly, we affirm the trial court’s determination that Pippin’s tent and its contents
were protected by article I, section 7 of the state constitution, but we reverse the trial court’s
orders suppressing evidence and dismissing the charge. We remand to the trial court to decide
whether the exigent circumstances of officer safety justified the search, using the considerations
from Cardenas, set out above. The trial court may hold a new hearing and shall enter additional
findings of fact consistently with this opinion.
BJORGEN, C.J.
We concur:
WORSWICK, J.
LEE, J.
31