*1 case, Warren with charged In the instant the information who was under in sexual intercourse with someone engaging information identified victim years; age relatively period alleged brief which and specified act and the charged act occurred. Given the nature victim, the information was constitution- age alleged a crime. The State's motion to ally charge sufficient reply brief is denied. strike Warren's affirmed. Judgment Scholfield,
Coleman, C.J., J., concur. Reconsideration denied November 1989.
Review denied at Wn.2d 1004 11531-0-II. Division Two. October [No. 1989.] Bradley Appellant, v. M. Washington, State of Boland, Respondent. *2 Attorney, Prosecuting Raymond, Steven L. and F.
John Deputy, appellant. Olsen, for respondent. Frost, A.
Michael appeals of order of dismissal State J. The Petrich, drugs legend possession con- charges and of criminal sup- Bradley against based on a Boland trolled substances warrant pression a search seized of evidence charges. prosecution effectively RAP abated 2.2(b)(1). suppressed evidence because The trial court on infor- judgment was obtained warrant the search in its pri- right to gathered the accused's in violation mation State vacy guaranteed 7 of our section article as Constitution. presents whether or not the
This case the issue of may, legal process, garbage left for collection without search they may. curtilage of a home. We hold outside the Accordingly, we reverse. anonymous tip
Investigation an of this case resulted from drugs. selling unprescribed legend A check that Boland was Pharmacy showed that Boland did with the State Board of possess dispense legend drugs. a license to power a warrant for Boland's Police officers obtained Next, on records to establish the address of his residence. nights April four police between March garbage
officers observed Boland's can on the street way, property line, about 15 feet from his before day scheduled for collection. On at least one of place occasions, these observed Boland tightly can out for collection. The can lid was heavy log placed secured and a small had board been top. its nights, police emptied
On these four contents of Boland's can into a second container and returned *3 garbage to the station where the was examined. The garbage authority was searched without the of a warrant. garbage
Evidence obtained from Boland's
can and other
information known to law enforcement authorities led a
County deputy prosecutor
Jefferson
a search
obtain
war-
rant for Boland's residence. The warrant was issued on
April 8, 1987, and a search was conducted at the residence
day.
on the same
Based on the evidence seized from the
charged
residence, the State
Boland with one count of
possession
legend drugs,
69.41.030,
unlawful
RCW
possession
two counts of
of a controlled substance with
(ii).
69.50.401(a)(l)(i),
deliver,
intent to
RCW
suppressed
The trial court
the evidence seized from the
1,
section 7 of the Wash-
residence
ington
the basis that article
prohibited
warrantless search
State Constitution
the
probable
garbage.
and seizure of
The trial court found that
exist
search the residence did not
without
cause to
charges
search. The
information obtained from
against
insufficient
as a result of
Boland were dismissed
prosecution.
independent
on which to base the
evidence
L.
Greenwood,
Ed. 2d
In
v.
486 U.S.
California
(1988),
States
the United
After
prohibited
Const. art.
Gunwall
court concluded
§
dis
long
telephone subscriber's
obtaining
pro
legal
without
tapes
pen register
tance toll records and
telephonic communication
The
extended to
protection
cess.
than under
constitution
was thus broader under the state
by the
constitution,
interpreted
had been
the federal
which
the installation of
permit
United States
Court
line without a war
pen register
personal
telephone
on a
735, 61 L. Ed. 2d
Maryland,
rant
Smith v.
U.S.
analyzed
court
the Gunwall
papers, and
issue,
upon
violated,
shall
but
no warrants
shall not be
and
affirmation,
particu-
cause,
and
probable
larly describing
supported
oath or
searched,
persons
or
place to be
things to be seized.
inter
has been
Amendment
of the Fourth
language
if the defendant
only
warrant
a search
preted
requiring
as
place
in the
expectation
privacy"
a "reasonable
possessed
Katz
(quoting
at 510
Myrick,
searched.
thing
*5
States,
576,
v.
389 U.S.
19 L. Ed. 2d
88 S.
United
(1967)). Conversely,
7,§
under Const. art.
the
Ct. 507
inquiry
determining
"relevant
for
when a search has
unreasonably
the State
occurred is whether
intruded into
Myrick,
'private affairs.'"
the defendant's
Wn.2d at 510.
analysis encompasses
legitimate privacy
Const. art.
those
§
Amendment,
protected by
expectations
the Fourth
but is not
privacy expectations
subjective
to the
of modern citi
confined
zens
who,
publicized
to
advances in surveillance tech
due well
expect
privacy
many
inter
in
nology,
learning
are
to
diminished
Rather,
privacy
aspects of their lives.
it focuses on those
held,
have
and should be enti
which citizens of this state
ests
hold,
trespass
a
governmental
from
absent warrant.
tled to
safe
omitted.)
(Citations
Myrick,
at 510-11. Gunwall
pro
language
recognized
in
that the difference
between the
expansive interpretation
a more
of Const. art.
visions allows
Gunwall
1, § 7;
The fourth Gunwall factor directs the court examine "help scope preexisting can define the of state law which to at 62. a constitutional later established." 106 Wn.2d history statutory long In the a of court found protection telephonic communica of and other electronic support independent reading strong tion that lent for an of authority state We unaware of similar constitution. are preexisting 1, § art. 7 that would the ratification of Const. privacy history protecting garb in interest indicate a of age.1 disposal argues governing the collection and of 1Boland local ordinances privacy garbage. expectation He in the cites Port evidences a societal close-fitting require lids on containers and ordinances which Townsend "entirely purpose permits of a lid is to note that collection. We thereof, prevent rats, reaching and prevent the contents [to] mice or flies from Municipal gasses 6.04- escaping Port Townsend Code and therefrom.1' odors estimation, disposal ordinances referred to .030. In our collection disposal management by of waste rather than Boland relate to sanitation and the protection garbage. in interests examine differences
Gunwall also
the court to
advises
federal constitutions.
the state and
the structure between
is
federal constitution
that the
The Gunwall court observed
authorizing
government
grant
power
federal
of limited
powers
constitutionally
only
delegated
enumerated
those
exercise
expressly
states,
con-
whereasour state
to it
power
plenary
imposes
limitations on the otherwise
stitution
the state
expressly
anything
forbidden
the state
do
or federallaw.
constitution
supports an inde-
This
also
of state local whether uniformity. long-stand- The existence of need for national ing legislative protection telephonic was of communication persuasive in where the court concluded that outweighed policy the need for state considerations availability telephone uniformity regarding the of national four, however, we under records. As discussed criterion legis- in state have observed a similar intent and local not protect privacy garbage. of state and lation to While regulation garbage collection indicates that local of largely concern, does of the local nature of is local protection heightened weigh in of under favor its state constitution. leads us to
Our
of the Gunwall factors
consideration
that
state constitution should not be construed
believe
provided
provide greater protection to
than is
interpreted by the United States
the federal constitution as
Supreme
especially cognizant of the lack of
Court. We are
preexisting
and the lack of current
law
the constitution
protect
garbage.
regulation designed
in
interest
recognized
opinions
"[t]he
that
The Gunwall court
controlling
Court,
state courts
while not
on
impor
construing
constitutions,
nevertheless
their
are
own
they
subjects
squarely
guides
address."
which
tant
(quoting
Hunt,
v.
N.J.
State
at
106 Wn.2d
60-61
(1982) (Handler,
concurring)). See
J.,
A.2d 952
Reece,
also State v.
The order of the reversed, trial court is and the proceedings matter is remanded for consistent with this opinion.
Worswick, J., concurs. (dissenting) my judgment, Alexander, C.J. In dissent. —I privacy rights Washington recognized citizens, as in arti- cle constitution, section 7 of the state are disturbed city police who, warrant, without benefit of a search rum- mage through garbage left for collection at a location proximity close to the citizen's residence. recognize my privacy provisions
I
view of the
of our
Rights
state constitution's Declaration of
is somewhat sub
*7
jective,
majority's
but no more so than the
view. The
majority
acknowledge,
Washington
however,
does
generally
1,
courts have
held that article
section 7 of our
provides
protection against
state constitution
more
war-
rantless searches and seizures than the United States Con
Bell,
stitution amendment 4. State v.
108 Wn.2d
certainly
665 inquiry appropriate the State has is whether rather, the unreasonably affairs. into individual's intruded Myrick, 506, 510-13, P.2d 151 688 v. See State (1984). Myrick, focus is on "those In court said the held, have and state should which citizens this interests trespass governmental hold, absent safe from be entitled 102 at 511. a warrant." Wn.2d Supreme neigh-
Interestingly, our Courts two of boring as that action such states have found that provisions violated here the Port Townsend taken of their state constitutions. People 1262, Krivda, 357, 486 96 v. 5 Cal. P.2d Cal.
In
3d
(1971),
Rptr.
remanded,
33,
L.
and
U.S.
34
vacated
409
62
(1972),
remand,
8 Cal.
45,
Ed.
93 S.
32
3d
2d
Ct.
aff'd
Rptr. 521,
denied, 412
457, 105
cert.
623,
P.2d
Cal.
U.S.
504
(1973),
upon
Court was called
California
1,
the California Constitut
to examine article
section 13 of
provision
wording
ion,2
in
amend
identical
the fourth
ment to the United States Constitution. The California
seizure
defendant's
court concluded that a warrantless
of a
The
trash was violation of
state's constitution.
court
following
reasoning
People Edwards,
in
in
v.
Krivda was
its
Rptr.
633,
713, 80
2d
458 P.2d
Cal.
Cal.
(1969),
the court said that where a trash can
left
where
home, there
to one's
is a reasonable
collection close
privacy.
expectation stated:
court
readily
many
why
reasons
residents would not
We can
ascribe
letters,
castaway clothing,
medicine
or other
want their
bottles
others,
by neighbors
to be
telltale refuse and trash
examined
Among
against
vacy." (Italics
"All
Ӥ 13 Search
"The
Article
2Article
protecting
people
unreasonable seizures
these
are
section
section 13 of the California Constitution
are
mine.)
property,
and
people
enjoying
seizure
nature free and
to be secure
and
and
California
and
pursuing
defending
searches
independent
and
Constitution
their
life and
may
obtaining safety, happiness,
persons,
not be
liberty, acquiring, possessing,
and
states:
provides,
houses, papers,
violated;..."
have
inalienable
in
part:
and effects
and
rights.
pri-
*8
at least not until
identity
the trash has lost
meaning by
its
becoming part
large conglomeration
of a
of trash elsewhere.
Similarly,
Supreme
Court of Hawaii has held that the
trash,
seizure of a defendant's
warrant,
without benefit of a
type
governmental
is the
of
intervention that article
sec
prevent.
tion 6 of the Hawaii constitution3 was intended to
(1985).
Tanaka,
State v.
67 Hawaii
can which was searched the Port Townsend was slightly curtilage premises. Any outside the of Boland's expectation privacy, they say, gone. was, therefore, I dis- agree. garbage placed designated If a can is in the location collection, here, as was the case and if that closely premises location is still identified with the slightly beyond curtilage came, which the albeit premises, of the it would seem obvious that there is an expectation that the contents of the can are they garbage. until such time as are mixed with other That expectation privacy great would seem to be as as it would just if be can were a few feet closer to the home curtilage premises and, thus, it served within the which it serves. expressed I
The view have
is consistent with the reason-
ing
of our
Court
State v.
case,
cerned with records. The Gunwall court although telephone knowingly nized that subscriber provides: 3Article section 6 of the Hawaii Constitution people recognized infringed "The and shall not be showing compelling legislature without of a state interest. The shall take steps implement right." affirmative this telephone by him the com- dialed the numbers discloses telephone pany, user's such disclosure does not alter expectation privacy: *9 except telephone through the Telephone made calls cannot be payment to it for the service. company's property and without of the nature of has been necessitated because
This disclosure the has instrumentality, significantly the disclosure but more purpose and not for release to a limited been made for other business persons for reasons. other (quoting Hunt, 91 N.J. at State v. (1982)). 450 A.2d by placing garbage the his on one makes The ''disclosure" pickup for is similar to the disclosure discussed sidewalk by garbage is the Gunwall because it necessitated nature by Furthermore, the disclosure is made an indi- collection. purpose having garbage her vidual for the limited his or private company municipality which collected the or By turning possesses monopoly garbage the a collection. person collector, to a should not over to to have disclosed its contents the world. be deemed get gar- perhaps It difficult for one to emotional about bage. just garbage. is, hand, all, On the other most It after persons being privacy if would feel that their was invaded rummage through rein their were allowed free to Garbage automobile or their dresser cans excite drawers. great however, does, a less interest. One's tell deal perhaps person garbage it it reveals about the whose is— We more than does the contents of one's dresser drawers. anyone, permit including police, to should be slow pry examining person's person's a into a places, including garbage cans while those cans are their premises.4 particular On other identified with a still recognized city government legislatively Port has 4The Townsend provides: Municipal degree, Code 6.04.040 Port Townsend is to a sacrosanct. except employees anyone city Permit to collect. It is unlawful 6.04.040 remove, offal, any collect, transport garbage, offensive or obnox- or other or streets, through any purpose operate for such vehicle ious substances permit having ways city without first obtained highways or within the other permit be valid city numbered and shall health The shall be officer. hand, if have probable cause to examine one's then let them garbage, way do it the old fashioned —obtain I Superior warrant. would affirm the Court Judge of Jefferson County wisely who held that this search violated our state constitution. granted
Review
at
Taplin, Appellant. *10 year, officer; by city provided, for one unless sooner revoked health how- ever, others, may that such service be let contract to in which case the con- superintendent tractor shall be substituted for the insofar as the terms of through provide. Section 6.04.040 6.04.070 Washington's largest city adopted tougher has an even stance toward those garbage voyeurs. City provides: who would be Seattle Code 21.36.100 21.36.100 Unlawful use of can. anyone It is unlawful for other than the owner or him one authorized deposit any any garbage material can or container detachable remove any except the cover therefrom or to remove or disturb of the contents thereof for collection.