State v. PuapuagaState v. Puapuaga
¶ 1 This case asks us to determine whether it is proper for the State to seize by ex parte order the personal property of a pretrial detainee who is transferred to Western State Hospital for a competency evaluation. Jesie Pele Puapuaga, who is charged with second degree murder, was transferred to Western State Hospital for a competency evaluation. Upon arrival, Puapuaga‘s items were inventoried by hospital staff. Among his personal items was what appeared to be state discovery materials evidently not authorized for release to Puapuaga, plus a threatening note directed to one of Puapuaga‘s codefendants. The State was notified of the materials and obtained ex parte orders seizing the property. The trial court denied Puapuaga‘s motion for immediate return of the property and for dismissal of the criminal prosecution under Criminal Rule (CrR) 8.3(b), upheld the ex parte orders, and appointed a special master to review the items in camera to protect any privileged materials. We affirm the trial court.
FACTUAL AND PROCEDURAL HISTORY
¶ 2 Jesie Pele Puapuaga is charged in Pierce County with second degree murder. His case was assigned to Judge Tollefson with a trial date of October 15, 2007. The court ordered Puapuaga to undergo a competency evaluation at Western State Hospital.1 Upon his arrival at the hospital on March 16, 2007, staff inventoried Puapuaga‘s property and found a box containing what appeared to be unredacted state discovery documents, including autopsy photographs of the victim, and what appeared to be a threatening message directed to one of Puapuaga‘s codefendants and written on a “kite.”2 The State had not approved release of discovery materials to Puapuaga.
¶ 3 A mental health evaluator e-mailed the deputy prosecutor and defense counsel about these discoveries. Later that day, the deputy prosecutor, upon written motion, obtained from Judge Serko an ex parte order “impounding” Puapuaga‘s property by Western
¶ 4 A search warrant for the kite was also obtained by the Lakewood Police Department, but it is unclear whether it was executed. According to the State, on March 23, 2007, a detective of the Lakewood Police Department went to Western State and served a warrant for the kite and put it into evidence. CP at 39. However, in the detective‘s affidavit, the detective refers only to the court‘s order, and there is no evidence of such a search warrant contained in the record.4 CP at 51. The detective went to Western State, secured the lid of the box containing the items with evidence tape, and stored the box in his office. The detective did not look at the documents. The box has since been transferred to Judge Tollefson‘s chambers.
¶ 5 Defense counsel objected to these developments, asserting a violation of her client‘s privacy rights and violation of the attorney-client privilege. Counsel insisted she had provided no discovery materials to her client, suggesting that he might have obtained the materials from someone in the jail. The State alleged that there had been a discovery violation and that there was possible evidence of witness tampering, and moved for appointment of a special master to review the documents and redact any attorney-client communications. Defense counsel first agreed to appointment of a special master but later opposed the procedure and moved for return of the material and for disqualification of the deputy prosecutor or dismissal of the prosecution.
¶ 6 On April 13, 2007, Judge Tollefson entered findings and conclusions on admissibility of the impounded materials and concluded that the State‘s actions were a reasonable exercise of police power. CP at 76-77. The court granted the State‘s motion for appointment of a special master and denied Puapuaga‘s motions, including his motion to dismiss the prosecution and for immediate return of the property. Under the court order, the special master is to review the impounded materials in the presence of defense counsel and determine whether they contain any privileged communications or indications of defense preparation. The special master is then to redact the protected materials and turn the remaining items over to the court. The court will then hold another hearing to determine what items, if any, should be turned over to the State.
¶ 7 The court stayed its decision to permit Puapuaga to move in this court for a stay and for direct discretionary review of the trial court‘s order appointing a special master. Our commissioner granted a stay pending further order of this court and referred the motion for discretionary review to the court. We continued the stay and granted review.
ISSUE
Whether the trial court properly denied Puapuaga‘s motion to dismiss his second degree murder charge or for return of the seized items and granted the State‘s motion for appointment of a special master.
ANALYSIS
¶ 8 Two things must be shown before a court can order dismissal of charges under
I
¶ 9 Puapuaga claims that the State unlawfully seized and continues to hold his personal property. He claims that by seizing his property through ex parte orders, the State violated his constitutional rights and committed governmental misconduct. These actions, Puapuaga maintains, prejudiced his ability to conduct a timely investigation into his case.6 Among the constitutional rights violated, Puapuaga asserts violation of the right to privacy under
¶ 10 When presented with arguments under both the state and federal constitutions, we review the state constitution arguments first. State v. Surge, 160 Wash. 2d 65, 71, 156 P.3d 208 (2007). We have found that article I, section 7 provides greater protection of a person‘s right to privacy than the Fourth Amendment. In the context of this case, interpretation and application of article I, section 7 requires a two-part analysis. The first step requires us to determine whether the action complained of constitutes a disturbance of one‘s private affairs. If there is no private affair being disturbed, the analysis ends and there is no article I, section 7 violation. If, however, a private affair has been disturbed, the second step is to determine whether authority of law justifies the intrusion. Authority of law may be satisfied by a valid warrant. Surge, 160 Wash. 2d at 71, 156 P.3d 208.
¶ 11 The private affairs inquiry focuses on those privacy interests that Washington citizens have held and should be entitled to hold safe from governmental trespass absent a warrant. Private affairs are not determined according to a person‘s subjective expectation of privacy but, in part, are determined by examining the historical treatment of the interest asserted. If history does not show whether the interest is one entitled to protection under article I, section 7, we then ask whether the expectation is one that a citizen of this state is entitled to hold. This part of the inquiry includes a look into the nature and extent of the information that may be obtained as a result of the governmental conduct and the extent to which the
¶ 12 Here, the private affairs inquiry focuses on a pretrial detainee‘s asserted privacy interest in their personal effects, not on the privacy interest of the ordinary citizen. Puapuaga does not claim that pretrial detainees historically have maintained any specific privacy interest but argues instead that the privacy expectation is one he is entitled to hold. He claims the government could obtain an extensive amount of information for its investigation through the seized items. Also, he submits that he did not voluntarily expose the information but took the materials with him to Western State, affirming his intention to maintain the privacy of his property.
¶ 13 Contrary to Puapuaga‘s contention, the private affairs inquiry in this case is resolved by reviewing historical treatment of the privacy interest asserted. We have recognized that an inmate‘s expectation of privacy is necessarily lowered while in custody. State v. Campbell, 103 Wash. 2d 1, 23, 691 P.2d 929 (1984) (holding State‘s search and seizure of work release inmate‘s car did not violate the
¶ 14 The State cites to Cheatam to argue Puapuaga‘s privacy rights have not been violated. Puapuaga makes no reference to Cheatam, nor any distinction between inventory and seizure of his personal effects upon transfer to Western State and inventory and seizure of an arrestee‘s personal effects upon booking. Certainly, the State may lawfully inventory an arrestee‘s personal effects, whether shoes or a box of documents.10 As in Cheatam, Puapuaga does not contend the inventory search was unlawful. And like Cheatam, Puapuaga does not provide authority suggesting that pretrial detainees have historically held a protectable privacy interest in property properly inventoried, seized, and held by state officials. Cheatam, 150 Wash. 2d at 643, 81 P.3d 830. To the contrary, history shows the interest is one not entitled to protection. Thus, Puapuaga fails the private affairs prong of the article I, section 7 analysis and consequently fails to establish any privacy right under these facts.11
¶ 15 Next, Puapuaga argues that by obtaining the orders ex parte from a judge not assigned to the case and without making a record, the State violated rules of discovery, which in turn satisfies the governmental misconduct prong of his motion to dismiss. Puapuaga contends that the rules the State violated are Pierce County Local Rule 40(b) (case assignment),
¶ 16 While we do not necessarily condone the State‘s action of proceeding ex parte, we agree with the superior court that this procedure is not a basis to dismiss an underlying charge. Further, we find that the trial court, by permitting Puapuaga to challenge the State‘s action in a hearing and by appointing a special master to review the contents of the box, acted well within its authority to regulate discovery.13
¶ 17 At most, if any of the contents of the box are attorney-client privileged communications, which the State intended to introduce in the murder trial proceedings, Puapuaga could then bring a motion raising a more specific objection. But, unlike the defendant in Cheatam, Puapuaga has not filed a motion to suppress the seized items from being used in his criminal trial. Instead, he has moved for dismissal of his murder charge or immediate return of his property. While the shoes seized in Cheatam were used as evidence of Cheatam‘s guilt, here, the contents of the box appear at this stage of the proceedings to be unrelated to Puapuaga‘s second degree murder charge or any charge at all. We emphasize that we are unable to establish a nexus between the disputed property and Puapuaga‘s murder charge. Therefore, we leave to the trial court, who currently possesses the box, the task of determining whether to give the items to the State or return the items to Puapuaga or his counsel. Any requests for return of the box should be addressed to the trial court and may be resolved in the hearings already pending.
¶ 18 We hold that dismissal of Puapuaga‘s murder charge is an extraordinary remedy not fitting for these circumstances and that in the absence of the box as part of the record on review, we will not order return of the items to Puapuaga. We affirm the trial court‘s order appointing a special master and its order denying Puapuaga‘s request for return of his items and for dismissal of his second degree murder charge under CrR 8.3(b). We remand the case to the trial court.
WE CONCUR: Chief Justice GERRY L. ALEXANDER, Justice SUSAN OWENS, Justice MARY E. FAIRHURST, Justice BARBARA A. MADSEN, Justice JAMES M. JOHNSON, Justice DEBRA L. STEPHENS, and Justice TOM CHAMBERS.
SANDERS, J. (concurring).
¶ 19 I agree with the majority that dismissal of the second degree murder charge against Jesie Pele Puapuaga under Criminal Rule (CrR) 8.3(b) is unwarranted. We have no idea what is contained inside the seized
¶ 20 Briefly summarizing the facts, Puapuaga was charged with second degree murder and the defense moved for a competency evaluation to be performed at Western State Hospital. Hospital staff performed an inventory search of Puapuaga‘s possessions that included a box. Inside the box, the hospital staff found papers that allegedly included autopsy photos and a threatening letter addressed to a testifying codefendant. The State and defense counsel were notified about the contents of the box. Later, a deputy prosecutor obtained two ex parte orders from Judge Susan Serko, who was not assigned to Puapuaga‘s case, authorizing police to impound the box materials and also to seize them. The State sought these ex parte orders while the assignment judge and defense counsel were available.
¶ 21 For a court to dismiss charges under CrR 8.3(b), the defendant must show (1) arbitrary action or governmental misconduct and (2) prejudice materially affecting the defendant‘s right to a fair trial. State v. Michielli, 132 Wash. 2d 229, 239-40, 937 P.2d 587 (1997). A warrantless search or seizure is presumed unconstitutional unless an exception applies. State v. Gatewood, 163 Wash. 2d 534, 539, 182 P.3d 426 (2008);
¶ 22 The majority cites State v. Cheatam, 150 Wash. 2d 626, 642, 81 P.3d 830 (2003), to justify the ex parte orders contending that an arrestee such as Puapuaga had no reasonable expectation of privacy in personal items under the state and federal constitutions once they have been viewed by state officials during a valid inventory search. Majority at 363-64. The majority fails to mention that in Cheatam, the defendant was arrested and at the time of his arrest had his personal effects taken from him, inventoried, and stored in the jail‘s property room. Cheatam, 150 Wash. 2d at 642, 81 P.3d 830. Here, unlike Cheatam, Puapuaga was a patient at Western State Hospital when the box was seized by hospital officials, not a jail or prison inmate, and none of the disputed personal effects in his box were seized pursuant to his arrest. Thus, the majority‘s claim that Puapuaga had no expectation of privacy in his personal effects at the hospital due to an inventory search is false.
¶ 23 The ex parte orders crafted by the prosecution were a blatant violation of court discovery rules and the state and federal constitutional rights of Puapuaga to open administration of justice and to be present at all hearings in his case. See
¶ 24 If this is true, these documents have a strong connection to Puapuaga‘s second degree murder trial as privileged attorney-client materials. The majority‘s upholding of the trial court‘s appointment of a special master to review the seized box materials encourages future violations of individual procedural constitutional rights. The State cites no authority authorizing it to use ex parte orders to seize a defendant‘s personal effects from a mental health facility while the defendant is temporarily confined there. The state and federal constitutions do not allow governments to engage in shadow justice. Neither ex parte order was obtained in open court, no record was made of the proceedings, and the State did not inform
¶ 25 Here, we cannot dismiss Puapuaga‘s second degree murder charge because material prejudice cannot be established without knowing the contents of the seized box. However, the government misconduct prong in this case under CrR 8.3(b) is established due to the unconstitutional and unjustified ex parte orders that violated state and local discovery rules. Thus, I would hold both ex parte orders should be dismissed and Puapuaga‘s noncontraband private property items in the seized box should be returned absent a search warrant.
¶ 26 I concur.