State v. Young

аgreement. earlier Accordingly, we hold the trial court resolved this correctly issue as matter law. C.J., Utter, Brachtenbach,

Andersen and Dolliver, Madsen, JJ., Durham, Smith, Guy, concur.

[No. February 58399-4. En Banc. 1994.] Washington, The State of Respondent, v. Robert Alan

Young, Appellant. Mestel, Muenster, D. R. Muen- & Mark John Mestel appellant. ster, for Prosecuting Attorney, Dawson, F. and David

Seth R. respondent. Deputy, Thiele, for Whaley Robert H. on behalf of Smith and

Catherine W. Lawyers, "Washington ami- of Criminal Defense Association appellant. curiae for cus contends the warrantless The defendant J.

Johnson, under home constituted a search surveillance of his Constitution and article section 7 of the States Constitution. amendment the United the fourth agree, reverse the defendant’s conviction. and We

I

Facts Department August Police the Edmonds On anonymous that Mr. in mail. It stated an note received Young operated big marijuana grow” Robert A. "a and Young’s telephone name, contained Mr. address and num- ber. began investigation.

Detective L. Paul Miller an He con- telephone firmed the address and in the number contained belonged Young. note He checked for and federal state Young criminal on histories and found none. Detective Young’s Miller went to address numerous times and ob- consistently covered, served the basement windows were al- though any bright lights he never in observed the home. public Miller sidewalk, walked home on the but did marijuana. any detect odor consumption power Miller obtained the records for Young’s years previous home over and found an abnormally high power consumption, level of and a marked consumption power previous years. increase over the prior experience investigating Based on his indoor mari- juanа growing operations, power consump- he believed abnormally high Young’s tion increase to levels at home to marijuana growing operation. be consistent with a days later, A few Detective Miller obtained assistance Drug Agency Special Agent from United States Enforcement Hedman, Mark who had been trained in the use thermal detection An devices. infrared device detects differ- temperatures targeted objects. ences in the surface Used night, highlights the device manmade heat sources as a temperatures gray. white color and cooler aas shade The through open device can detect human form window person leaning against pressing when curtain, body. the curtain between the window screen and his or her generated by person The leaning against can also deviсe detect the warmth relatively plywood thin barrier such as door. approximately p.m. August

At 11:30 Detec- Agent Young’s tive Miller and Hedman went to address and conducted a thermal surveillance of the home. The thermal Hedman detection device what revealed considered to be heating patterns. abnormal foundation of home was indicating spots, shown to be warm in certain the down- 178 upstairs. than the The device revealed

stairs was warmer upper portion chimney warm but the of the was lower chimney portion cool, and of the two vents was was one there had been a fire in and the other one cool. If warm chimney fireplace the entire would have been warm. utility meter on the side Miller and Hedman checked indicating warm, home, and it also a load found was and Hedman then used thermal on the line. Miller heating expose patterns of other detection device to patterns neighborhood, compared and those homes heating Young’s pattern and at home. Hedman with the Young’s pattern from the home differed Miller noted the neighborhood. there in the Miller concluded other residences operation marijuana growing in the home. was a containing above, described on an affidavit the facts Based Young’s for Mr. Detective Miller obtained search warrant August 28, was executed and home on quantity 1990. The warrant Young charged marijuana with seized. was was marijuana possession de- to manufacture or with intent liver. Young suppress and trial, the evidence

Prior to moved Young guilty The trial found the motion was denied. court accepted Young’s petition stipulated for direct facts. We review.

II

Analysis Washington 1, 7 of the Article Seсtion State Constitution argues surveillance defendant improper both the under search his home constituted fourth amendment Constitution to the United States Washington State Constitution. section 7 of the article Washington consti both the federal and violations of When alleged, appropriate the state to examine are it is tutions 110 Mesiani, v. Wn.2d Seattle constitutional claim first. (1988). provides constitution The federal P.2d 775 755 against protection unrea- citizens afforded the minimum

179 government. Chrisman, v. sonable searches State protec- 100 Wn.2d Greater may Washington tion available be under the Constitution. White, v. 108-09, P.2d provides

Whether the Constitution protection level different from the federal constitution given case is determined reference to the six nonexclu Boland, sive Gunwall factors. State Wn.2d (1990); 800 P.2d Gunwall, 720 (1986). parties 808, P.2d 76 A.L.R.4th 517 The have ad equately еnabling factors, briefed the Gunwall us to consider independent analysis state in constitutional this case. v. Wethered, 466, 472-73, State 110 Wn.2d 755 P.2d 797 (1988).

First, § 7, we examine the of 1, text Const. art. the rele provision. signif especially vant constitutional This is factor in 1, icant case this because article section 7 contains two objects protection: person’s "private distinct of affairs”, person’s and a "home”. Both are at issue this case. compare

Next, we of the text Const. art. parallel provision 1, § 7 with its constitution, of the federal and note there are substantial differences between the two. Gunwall, 106 65. Wn.2d at Examination of the constitu history represents 1, § 7, tional of Const. art. which the third factor, Gunwall reveals our State Constitutional Convention rejected language of federal constitution’s Fourth adopted language Instead, Amеndment. the Convention intentionally providing greater protec § 7, of Const. art. rights. tion of individual Stroud, 144, 148, State v. 106 Wn.2d particular, 720 P.2d In our state constitution places greater emphasis right privacy. on the State v. Simpson, 170, 178, 95 Wn.2d 622 P.2d 1199 requires preexisting

Factor four us to examine state law to protection historically determine kind of what this state has subject Gunwall, accorded the at issue. at 106Wn.2d 61-62.At adopted the time our State Constitutional Convention article section the federal had been constitution construed to provide expansive protection privacy "all interests: inva- part government employés sions of the and its sanctity privacies of life” of a man’s home protection. Boyd subject are to federal constitutional States, L. S. 29 Ed. 6 Ct. United (1886). Nevertheless, our Constitutional Convention rigorous protection provide determined to even more rights guaranteed by privacy the Fourth than those Stroud, 106 at Unlike the Fourth Amendment. Wn.2d 148. Const, recognizes "clearly § art. an indi- Amendment, right express limitations”. with no vidual’s Simpson, foundation, both this

95 Wn.2d at 178. With this Legislature an individual has court and ‍‌​‌‌​‌‌‌​‌‌‌‌​​​​​​‌​​​‌​​​‌​​‌‌‌​‌‌‌‌​​​​‌‌‌​​​‍the protected privacy decided power usage In re

interest records. (1986); Rosier, 717 P.2d 1353 (1990); RCW Maxwell, 114 Wn.2d recognized important Rosier, we 42.17.314. relating public policy of information to the disclosure upon public performance officials cannot encroach rights every general personal privacy citizen to which Legislature Rosier, con- entitled. right by prohibiting importance of this firmed person’s consumption electrical without disclosure of a utility particular cus- assertion that electrical written activity. suspected criminal 42.17.314. tomer is RCW provides support an This substantial for historical context аnalysis independent in this case. state constitutional factor, be structural differences The fifth Gunwall always point constitutions, will tween the state and federal analy independent pursuing an state constitutional toward grant power a from is the federal constitution sis because represents a limita states, constitution while the state power. Smith, v. 117 Wn.2d tion of the State’s State (1991) (Utter, concurring). J., 814 P.2d 652 mat we whether the the sixth factor examine Under particular State law local concern. is state interest or ter v. are matter of local concern. State measures a enforcement Ortiz, (1992) (Johnson, 294, 320, 831 P.2d 1060 119 Wn.2d strong dissenting). na addition, no need for J., there is outweighs uniformity surveillance tional very strong protecting State’s right interest individu- particularly privacy, al’s in the home. guides deciding

A consideration of these factors us in prоhibits §1, whether Const. art. infrared surveillance of a home without warrant.

Private Affairs provides: person 1, § Const. art. "No shall be private affairs, in his invaded, disturbed or his home without authority protects of law”. The constitution thus both a person’s private and his or home her affairs from warrant- inquiry Washington less searches. The relevant under the determining Constitution whether there been a has unreasonably search is "whether State has intruded into person’s 'private affairs’ Boland, ”. State v. 115 Wn.2d (1990)(citing Myrick, 577, 800 P.2d 1112 v. State (1984)). 506, 510, occurs, 688 P.2d 151 If no search then implicated. article section 7 However, if the governmental agent or other search, conducts then Const. implicated §1, art. 7 is and the search must be conducted pursuant Kennedy, warrant, to a v. (1986), recognized or fall within one of the

exceptions requirement, to the warrant none of which are present Myrick, herе. 102 Wn.2d at 510-11. inquiry affairs is broader than the Fourth expectation privacy inquiry.

Amendment’s reasonable gov Amendment, Under the Fourth a search occurs if the upon subjective expecta ernment intrudes and reasonable privacy. States, 351-52, tion of Katz United 19 L. Ed. S. However, 2d 88 Ct. 507 under the inquiry pri Constitution the focuses on "those vacy held, which interests citizens this state have governmental trespass hold, should be entitled to safe from Myrick, right absent warrant”. 102 Wn.2d at 511. The § under Const. art. 7 is "not confined to the subjective expectations privacy who, of modern citizens publicized technology, due well to advances in surveillance 182 many learning aspects diminished expect

are to 102 at 511. Myrick, their lives”. Wn.2d to which the have outlined the limits previously We conducting a warrantless surveillance with go can police affairs: intruding person’s private on out say law general propositiоn, it fair to that when a As a is something by utilization of is able to detect enforcement officer vantage lawfully at the present or more of his while one senses used, con- point are that detection does not where those senses . stitute a "search” . .. (1981) 898, 901, v. P.2d 44 Seagull, (quot- 95 Wn.2d 632 2.2, Search Seizure LaFave, 1 at 240

ing R. Wayne § (1978)). exceeds at which residential surveillance point has unconstitutionally intrusive these limits and becomes doctrine. We open been in the context of view developed infra- warrantless are asked to determine whether now estab- of a home exceeds those boundaries red surveillance law. lished our case our case established

Under the limits surveillance law, a does not constitute officer’s visual surveillance police unaided an with the object a search if officer observes 107 vantage point. Kennedy, from a Wn.2d eye nonintrusive 506, 514, P.2d Myrick, at 10. See also State (1984) (not aerial sur- when conducted search 1,500 of visual enhance- from feet without use veillance devices). is agent Accordingly, governmental ment when looking or on the outside looking "on the outside outside exposed public”, is knowingly inside to that which unconstitutionally of a home is not agent’s surveillance P.2d 761 Myers, Wn.2d intrusive. 902). (1991) Seagull, (quoting 1, 7 not violate Const. art. This kind of surveillance does § the general public voluntarily exposed what because devices from the use of enhancement and observable without of a part per area is considered unprotected However, a and unrea substantial son’s affairs. vantage point, part or from a lawful departure sonable viewing, may constitute icularly method intrusive 183 Myers, Seagull, 345; 117 at 95 at 901. search.1 Wn.2d Wn.2d may property The the also be a factor nature of observed determining in whether a surveillance is unconstitution ally Myrick, intrusive. 102 Wn.2d at 513. police positioned case, street, were this the on the vantage point. lawful, Therefore,

which is a nonintrusive the question is one of the intrusiveness of the means and used property police the nature of the observed. The an in used frared thermal detection device to detect heat distribution patterns eye by the or undetectable naked other senses. to, effect, With this device the officer was able in "see through goes beyond the walls” the home. The well device night addition, enhancement natural senses. In the time infrared surveillance enabled the officers to conduct Young’s knowledge. their surveillance without Mr. in The represents particularly frared thus device intrusive means observation exceeds our established surveillance limits. property

The nature of the is viewed also a factor unconstitutionally whether the surveillance intruded Mr. Young’s private targeted affairs. The infrared device was at the outside the home but allowed the officers more to see Young exposed public than what Mr. left to view. The device specific allowed the officers to draw the inferences about Warrant, 1; inside of the house. See Affidavit for Search at Papers, home, Clerk’s at 13. When directed at a the infrared particular device to allows officer determine which heating, night. using, rooms a homeowner and thus may This information reflect a in homeowner’s financial ability to heat entire the existence and location of particularly been seen with the naked formation that capability obtained Ct. 104 otherwise 1 We have n.1, without 698 P.2d lawfully of the binoculars does not intrusive method of already A could be seen with the naked 530 P.2d not have device. On determined the officer is allowed to use binoculars "to confirm what could eye had been obtained without viewing Under cert. other provide officer been denied, use of such as hand, eye”. long information that could not have circumstances binoculars does not constitute closer an infrared device as the to the object Ludvik, device. 46 L. Ed. 2d object. observed could have sense-enhancing does State v. Wn. expose App. Manly, 96 S. been in appliances, pos energy consuming producing and heat may staying sibly people at the even the number who be night. given informa The device discloses residence on occurring about within confines tion activities person keep disclo home, and is entitled from which Thus, this information falls within sure absent a warrant. language "private §1, affairs” of Const. art. particular re infrared device State contends this only data, so not be crude this surveillance should vealed construing art. However, Const. considered search. protection § results 7, we resisted the uncertain which have constantly changing tying right to the from our technology. recognize technology ahead We as races state of increasing speed, subjective expectations of with ever our right privacy may unconsciously privacy Our to altered. be may awareness, con our much less our be eroded without legal right privacy reflect our should sent. We believe simply thoughtful purposeful mir rather than choices technology industry. of the ror the current state commercial right by par privacy time, is that defined At the same -technological sophistication is administra ticular level of agents tively not be cer Governmental could unworkable. required. point a tain at what warrant is police established The boundaries on surveillance current investi- allow the to conduct effective our case law they privacy depriving people gations of the sense of without in this are not are entitled hold state. We have held and prepared to include warrantless those boundaries to extend inves- The thermal detection infrared infrared surveillance. particularly tigation represents method of sur- intrusive lawfully not reveals otherwise veillance which informatiоn going the is on within home. obtained about what perform a war- device to The use the thermal detection of the rantless, surveillance violated private protection af- of the defendant’s Constitution’s fairs. Home

Invasion of the pro explicitly "private 1, § art. affairs”, 7 Const. addition ‍‌​‌‌​‌‌‌​‌‌‌‌​​​​​​‌​​​‌​​​‌​​‌‌‌​‌‌‌‌​​​​‌‌‌​​​‍to protection of the case, In this a discussion the "home”. tects

185 overlaps analysis our home to some extent private protection affairs this case involves because activity private However, within home. we address the separately protection the home it a distinct because concept, significance particular is of which when discuss ing sense-enhanced surveillance.2 consistently prin

Our decisions have reflected the ciple heightened pro home receives constitutional Generally, person’s highly place. tection. home is a App. Berber, 589, State v. 48 740 74 Wn. P.2d (1987). denied, A.L.R.4th review 1014 In no Wn.2d area is a citizen more entitled to his than in his or Solberg, her home. State P.2d 460 (1993). reason, For this "the closer officers come to intrusion dwelling, greater protection”. into a the constitutional Chrisman, argues

The State the use of the infrared device did provision protecting not violate the constitution’s home physical because there was no invasion Accord home. ing State, to the because infrared device did send Respon beams into the no search occurred. Brief of dent, However, it is now well established that depend "upon presence occurrence search does not physical any given or absence of a intrusion into enclosure”. Katz States, v. United 353, 19 L. Ed. 2d trespass long Ct. S. doctrine has since been Karo, discarded. United States v. L. Ed. 530, 104 2d Ct. S. Under art. Const. § person’s like Amendment, the Fourth home can be though physical invaded even there is no entrance into the Holeman, house. State telephone Katz, the defendant’s from a conversation

public telephone police. booth was Court recorded the The examining protection person’s 2he private State is correct that in the of a af fairs, longer protected analysis. places we no do a The location of is but the search However, private analysis. Myrick, one factor in a affairs 102 Wn.2d at 513. examining explicit protection home, our state constitution’s of the fact the the analysis. search occurs at a home is central the to a search under the Fourth Amend- held this constituted legitimately expected privacy ment because the defendant "fact call. The Court said the during telephone the did device to achieve that end not employed the electronic have the wall of the booth can no happen penetrate to significance”. Katz, 389 U.S. at 353. Like- constitutional wise, case, in this the thermal detection unit did send home, pierced the but nevertheless any rays or beams into home. through the walls the sense the de

The infrared device invaded the home the the information about interior the gather vice was able to eye naked could not obtained defendant’s home that be device, way only observations. Without infrared to go the same information was could have police acquired this Just now allows in technology inside the home. because physiсal without inside the gained stepping formation to be has not invaded structure, not mean the home been it does of Const. art. 7. for purposes § technology Merely generally it is known that exists because to activities from an otherwise police to enable view vantage it follow that these activi- point, does not nonintrusive protection. ties are -without The line of

Myrick, constitutional phys more than barrier to just that encircles the home is allow sense-enhancing police When devices penetration. ical has of a the home been through "see walls” 1, 7. of Const. art. purposes invaded for § citizens afforded state "heightened protection into private dwellings places intrusion against unlawful compelling government show upon onerous burden Chrisman, requirement”. warrant need to act outside our such has failed to demonstrate at 822. The State Wn.2d Therefore, use of the the warrantless a need in this case. protection constitution’s violated our device home. thermal that the conducted troubling police

It is especially home, but on the investigations not defendant’s only used the as well. After neighbors homes his "[o]ther on the defendant’s houses the area device type pat- exhibited the of heat were viewed and none same Papers, at 17. indication terns”. Clerk’s There is no these neighbors suspected any activity were criminal whatso- If we were the use of the does not ever. to hold device con- placed search, a stitute no limitation would be on the government’s ability any private use the device on resi- night, any particular activity dence, on if criminal even no suspected. activity police constitutionally is Such is offen- sive. present unrestricted,

Such sense-enhanced observations dangerous police amount of This kind of discretion. surveil- protection upon prob- lance avoids the of a warrant issued by magistrate. only cause able a neutral Not does this practice requirement police eviscerate the traditional identify particular suspect prior initiating a search, but investigations by it also facilitates clandestine subject force, which are not to the traditional restraint of public accountability. Steinberg, Making David E. Sense of (1989- Searches, Sense-Enhanced 74 Minn. L. Rev. 1990). may only Such secret surveillance chill free expression, may arbitrary encourage inappro- but also and priate police conduct. 74 Minn. L. Rev. at

Finally, the State contends the use of infrared surveil- Washington lance does not violate State Constitution analogous because surveillance to the warrantless use police dogs identify presence of drugs. trained to sniff and dog date,

To sniffs have not been classified as searches by According just escapes case law. State, our to the as odor compartment building a enhancing or and is detected the sense- escape canine,

instrument of does heat so also sense-enhancing a home and is detected Respondent, argument Therefore, camera. Brief of at 5. dog if a search, is that sniff is not neither should infrared a search. surveillance constitute analogy

However, the misses the mark. Thus far the adopt courts have refused to the United States Supreme dog Court’s blankеt rule that sniffs are not Boyce, App. searches. State v. Wn. employed Instead, our courts have more conserva- dog require approach to

tive sniffs examination of Boyce, App. circumstances of the sniff. 44 Wn. at 729. question and under conditions a war whether what dog might of art. rantless sniff constitute a violation Const. purpose 1, § For of the 7 is not before the court. State’s argument, however, that we note residences were any by Washington cases not involved of the decided dog appellate approved. were courts where warrantless sniffs (1989) Stanphill, App. 623, P.2d 53 Wn. 769 861 See search); package post (dog of at office not a v. sniff State (1986)(dog safety App. Boyce, 44 Wn. 723 P.2d 28 sniff of search); deposit Wolohan, at a 23 box bank not (1979) parcel App. (dog 813, 598 421 of in bus Wn. P.2d sniff (1980). search), denied, 1008 terminal not review object That the of the search is home is critical. acknowledged a fact, in each cases of these the courts might object dog a search if of the sniff constitute search subject heightened of to or the location the search were protection. Stanphill, App. 630-31; at constitutional 53 Wn. App. App. Boyce, 729; at Wolohan, 44 23 820 n.5. Wn. Wn. analogy Therefore, of sense enhance- the State’s infrared canine cases is ment to the sniff not useful. only hold the infrared surveillance not violated

We private affairs, but constituted violation defendant’s also protection against State Constitution’s of his home. the warrantless invasion Fourth Amendment surveil need not reach the issue whether We the fourth amend of the defendant’s home violates lance it we find that to the United States Constitution since ment Daily Newspapers §1, art. Allied v. Eiken Const. violates berry, However, 205, 209, Wn.2d guidance purpose providing on the to other courts for the proceed subject home, we surveillance of a of sense-enhanced analyze claim. We federal constitutional defendant’s Fourth Amend violated the the infrared surveillance hold ment. purposes

A search occurs for Fourth Amendment expectation privacy society prepared "an when infringed”. ‍‌​‌‌​‌‌‌​‌‌‌‌​​​​​​‌​​​‌​​​‌​​‌‌‌​‌‌‌‌​​​​‌‌‌​​​‍Cy., consider reasonable is Soldal v. Cook (1992) (quot 450, 459, U.S. 121 L. Ed. 2d 113 S. Ct. 538 ing Jacobsen, 109, 113, United States v. 80 L. Ed. 2d (1984)).People expecta 85, 104 S. Ct. 1652 have a reasonable Payton tion of York, their own homes. v. New U.S. 63 L. Ed. 2d 100 S. Ct. 1371 Additionally, constitution, like our state the federal con specifically protects right stitution the home: "The people to be secure in their . . . houses . . . shall not be enjoy special violatеd . . . ”. U.S. Const. amend. 4. Homes jurisprudence. right "[T]he status in federal constitutional a man to retreat into his own home and there be free from governmental "very unreasonable intrusion” stands at the core” of the Amendment. Fourth States, Silverman v. United 365 U.S. 734, 5 L. Ed. 2d 679, 81 S. Ct. 97 A.L.R.2d (1961). public places Therefore, searches and seizures in differently are occurring treated than searches and seizures Payton, Accordingly, the home. 445 U.S. at Supreme sensory Court has differentiated between the use of enhancement devices in homes from their use on other objects. Compare Karo, United States v. 468 U.S. 82 L. (1984) Ed. 2d 104 S. Ct. 3296 with United v. States Knotts, 460 U.S. 75 L. Ed. 2d 103 S. Ct. 1081 purchased In Knotts, the defendant druma of chloroform containing beeper, tracking an electronic or He device. placed vehicle, drum in his and drove a cabin in agents the woods.Federal tracked the movement of the vehi- beеper cabin, cle to the but did not continue to monitor the once it had Knotts, moved indoors. 460 U.S. 278-79. The beeper Court held this use of the did not a constitute activity Rather, search. the Court characterized the as "amount[ing] principally following to the of an automobile public highways”, on Knotts, streets and 460 U.S. at by tracing beeper and noted the information discovered could have been unenhanced, discovered visual surveil- beeper Moreover, trace Knotts, 460 U.S. at 282. lance. person a a has lesser a search because did not constitute expectation privacy "it seldom serves as in a car because (quoting Cardwell Knotts, at 281 460 U.S. one’s residence”. 583, 590, 41 Ed. 2d 94 S. Ct. Lewis, 417 U.S. L. (1974) opinion)). (plurality beeper which was contrast, an electronic

In Karo involved Supreme Court’s Karo contains inside homе. taken sensory use of a enhancement statement on the most recent private The Court found residence. device on surveillance monitoring beeper inside a electronic of the the warrantless naked residence, a not observable location eye, Karo, States v. Amendment. United the Fourth violated 530, 104 S. Ct. 3296 705, 714, 82 L. Ed. 2d bought ether, unaware Karo, a can of the defendant by government placed beeper inside the can had been beeper agents. container to track the allowed the public his home. From to the defendant’s it roads as traveled along public transported the container the defendant That defendant then home. another defendant’s roads to storage facility, container to commercial took the marked finally a house home, defendant’s then to third by all three defendants. rented public roads en in the defendants’ vehicles

While storage facil in the or while each of these locations route to ity, monitoring beeper con did not held the the Court protected had no a search. The defendants stitute visually in these observed what have been interest in could places. However, each time public Karo, 468 U.S. at 720-21. the monitor the threshold of crossed the container requiring ing beeper a search held to constitute was monitoring re the device of found the The Court warrant. agents the home the interior of information about vealed through surveillance unaided visual could not have obtained the home’s exterior: of thought agent [government] enter it usefulto case,had a In this actually verify in the the ether was that

the . . . residence surreptitiоusly without so had he done house and engaged warrant, in there is little doubt that he would have meaning an unreasonable search within the of the Fourth Amendment, Amendment. For purposes the result is the where, warrant, surrepti- without a the Government same tiously an electronic device to obtain employs information it could have obtained outside the not observation from curtilage the house.

(Italics ours.) agents’ Karo, 468 U.S. at 715. The act of mon- itoring beeper infringed inside the home thus expectation privacy, homeowners’ reasonable and such purposes. use constituted a search for Fourth Amendment case, In this the infrared at device used was least as beeper beeper in intrusive as the Karo. In was not Karo, enough precise sensitive to reveal the can’s location within contrast, an enclosed structure. 468 U.S. at Kаro, specific infrared device issue here reveals the location of produce heat within the home. An infrared device need equivalent photographic image of a before it is declared intrusive under the Fourth Amendment: monitoring

[t]he beeper is, of an electronicdevicesuch as a course, search, less intrusive than a full-scale but it does premises reveal a critical fact about the interior of the that the extremely knowing Government is couldnot have otherwiseobtained interested and that it

without warrant. Here, 468 U.S. at 715. like Karo, the information Karo, conveyed by govern- the infrared critical device was to the heavily ment. The relied on the infrared surveillance results, them, and the inferences that could be drawn from obtaining the search warrant. The State contends that United v. Penny-Feeney, Stаtes (D. 1991), Supp. 773 F. Hawaii on other grounds, aff’d (9th 1993) represents 984 F.2d 1053 Cir. the correct Fourth analysis Amendment of infrared surveillance of a home. The court held use of the thermal detection de- Penny-Feeney only exposed vice was not a search because the device "heat waste”, heat”, or "abandoned in which the defendant had legitimate expectation privacy. no 773 F. Penny-Feeney, Supp. at 225-26.The court reasoned the defendant voluntar- ily police. vented outside the heat waste observed garbage an

This heat is like the individual sets waste collection, and in which the United States outside for Supreme expectation has there is no reasonable Court held privacy. Greenwood, 35, v. 486 U.S. 100 L. Ed. California 30, 2d 108 S. Ct. 1625 although ap- Penny-Feeney was affirmed

We first note on peal, grounds than affirmed on were different those by expressly the District Court. The Ninth Circuit rеlied on declined to address whether the use of the infrared device Amendment, a warrant the Fourth which without violated undermines the State’s reliance on the trial court’s reason- ing Penny-Feeney. Feeney, 1053, in States v. 984 F.2d United (9th 1993). 1054-55 Cir. reasoning

Additionally, we find the of the District Court unpersuasive.3 say Penny-Feeney First, it difficult to one in voluntarily way in the that one vents heat waste same garbage. garbage, automatically disposes Heat, unlike any participation person’s deliberate leaves a home without if heat is vented to the the homeowner. Even some Penny-Feeney, all heat outside, as in the device detects leav through ing just home, directed out not the heat part in Moreover, the court relied on vent. Greenwood places garbage curb, out at the one notion that when one people, children, other or assumes the foreseeable risk of discovering seizing garbage what is in the can. animals expect people say other However, it is difficult to one should sophisticated instruments on one’s home to use Smith v. within the stitute proposition analysis analyses already lection. We declined to follow Greenwood. an individual has no Greenwood, 3We 800 P.2d Gunwall, note that because search. Maryland, that a 486 U.S. In rejected by pen this (1990) reaching affairs contrast, protected privacy register argument we held Const. art. protection. 100 L. Ed. 2d this its decision the we held the use of is a 720 P.2d court. The even more sense-enhancing 61 L. Ed. 2d Similarly, interest 30, Rather, Penny-Feeney Penny-Feeney 108 S. Ct. 1625 clearly 76 A.L.R.4th § 7 includes pen register requires ‍‌​‌‌​‌‌‌​‌‌‌‌​​​​​​‌​​​‌​​​‌​​‌‌‌​‌‌‌‌​​​​‌‌‌​​​‍garbage placed in State v. device fails Penny-Feeney 99 S. Ct. 2577 court relied court in a state constitutional and its use does not an individual’s (1988), Boland, relied on cases and curbside which held that court relied on (1979), a warrant. California garbage for col for the con heat view so-called waste. The Greenwood court also noted placing private one can avoid the risk information garbage. only way hand, in the On the other for a person exposure case, to avoid the risk of in this and in Penny-Feeney, be all would to turn off heat sources in the temperatures. addition, even in subzero one could open any part not stand near an window or of the home plywood constructed of material such as because the de- capable revealing presence vice is the of human in forms Stipulation Regarding these circumstances. See Technical Capabilities Imager, Infra-Red Thermal at 3. important garbage

An even more distinction between set images produced by out for collection infrared actually being by surveillance is what is searched for the in- only frared device. The value of the so-called heat waste is what it discloses about the interior of the home. The infra- produces image red device an of the interior of the home that protected by otherwise is sense, the home’s In walls. government this infrared thermal device allows the to intrude gather into the defendant’s home and information about expectation what occurs A there. resident has a reasonable privacy in what occurs within the "a location not open to visual Karo, surveillance”. 468 U.S. at 714. It is this expectation privacy reasonable in the home that is vio- by expecta- lated surveillance, warrantless not the privacy Penny-Feeney tion of in "heat waste” as the court asserts. Penny-Feeney compared court the use of infrared dogs pres-

surveillance to the use of trained to sniff for the drugs. Relying ence of Solis, United States v. 536 F.2d 880 (9th 1976), Penny-Feeney Cir. court found the heat ema- nations detected infrared are similar to odor emanations dogs. analogy detected trained We find the of infrared dog appropriate, part surveillance to sniffs is not in because Supreme the United States Court has declared a "canine generis.” sniff is sui Place, United v. States 77 L. Ed. 2d 103 S. Ct. 2637 The canine investigative procedures, sniff is distinct from other both and the is obtained the manner which evidence Place, U.S. at 707. of the information revealed. content analogy, canine we find apрropriate if sniffs were Even (2d Thomas, in United States 757 F.2d 1359 reasoning (1986) denied, 474 U.S. 819 (1985), 479 U.S. 818 certs. Cir.), Thomas, than that of Solis. the Court more persuasive to sniff for narcotics outside dog the use of a trained held that, ab a search door constituted apartment defendant’s Amendment. warrant, the Fourth sent a violated both to The Thomas significance court attached fact a private and to the sensory method of enhancement issue: residence was at may about what is dog police obtain information

With a trained their they derive from the use of dwelling that could not inside dog is not a mere Consequently, the officers’use of own senses. smell, ordinary eyeglasses their sense of as improvement of vision, significant accomplished enhancement improve but is a different, superior, sensory instrument. Here by a and far of his legitimate expectаtion that the contents had a defendant they not be could apartment private, would remain closed defen- [the] his door. . . . Because of "sensed” from outside dwelling, his inside heightened expectation dant's] agent As the at his door constituted search. the canine sniff warrant, violated the Fourth Amendment. had no the search at 1367. The Thomas correctly court Thomas, 757 F.2d the of a dwelling object is that when recognized a person more than what search, and the means used reveal of the protections the knowingly expose, to can be said triggered. Amendment are Fourth in- sense-enhancing devices to obtain use police "When be obtained that could not from someone’s home formation exterior, should have they of the unaided observation Karo, at 714. Because 468 U.S. search warrant. in this thе device using to prior

did not obtain warrant Amend- the Fourth search also violated case, we hold the ment. Cause

Probable im- the information claims that without The defendant surveillance, the police the infrared obtained properly

195 support probable cause to search warrant. did have agree. We cause is when affidavit sets

Probable established person forth facts there is a to lead a conclude sufficient reasonable probability criminal the defendant is involved in activity. Cord, 361, 365-66, State v. 103 Wn.2d 693 P.2d 81 (1985). judged application The for a warrant must be search light sense, in the of doubts favor common with resolved Partin, of warrant. State v. 567 P.2d (1977).Generally, probable 1136 cause determination of issuing given great judge Huft, the Wn.2d State v. 106 deference. 206, 211, P.2d 838 case, In this the affidavit for the search warrant was based anonymous tip growing mari- that the defendant was juana; telephone confirmation that the and address number given by belonged Young; public utility the informant rec- showing high electricity consumption type ords for the of consumption house, and a dramatic increase in the last over years; using large the observed absence utilities electricity, saunas, amounts of such tubs as hot or which might explain high consumption; the officer’s observa- consistently tion covered; that the basement were windows government agents’ judgment the pointed this information growing operation;

to a and the results Respondent, Appellant, 1-4; surveillance. Brief Brief at 16-17. tip probable as a informant’s basis for fails to cause 2-prong Aguilar-Spinelli. Spinelli

meet the test of v. United States, 410, 413, 393 U.S. 21 L. Ed. 2d 89 S. Ct. 584 (1969); Aguilar Texas, 108, 114, 12 L. Ed. 2d (1964); Murray, 84 S. Ct. requires This test basis informant’s knowledge veracity Murray, be established. police investigation However,

Wn.2d at 711. if a reveals suspicious along activity lines criminal behavior proposed by corroborating investiga- informant, then the may replace requirements Aguilar-Spinelli. tion the State Jackson, 432, 438, P.2d ‍‌​‌‌​‌‌‌​‌‌‌‌​​​​​​‌​​​‌​​​‌​​‌‌‌​‌‌‌‌​​​​‌‌‌​​​‍More public corroborated, than or innocuous must be how- facts Jackson, ever. 102 Wn.2d at 438. investigation police

Here, corroborated the the given by phone and number and address the informant abnormally high consumption. discovered electrical These necessarily criminal innocuous facts that do not indicate are activity. the 106 Wn.2d at The additional fact Huft, always does not add windows of basement were covered finding probable enough equation support to the probable primary cause determina basis of the cause. illegally obtained infrared surveillance. With tion was interpre surveillance, infrared and the out the results Agent and those Miller tation of results Detective incriminating Hedman, in did not have sufficient formation to obtain a warrant. probable

Therefore, must cause determination be re- under warrant excluded. and the evidence seized versed White, P.2d 1061 State v. Consequently, conviction is reversed. the defendant’s JJ., concur. Brachtenbach, Dolliver, Smith, Utter, J., in the result. concurs Guy, — (concurring) agree majority I J. with Durham, 188-194) (pages device in this that the use of amendment to constituted a under the fourth case search therefore, I would, reverse United States Constitution. majori- Young’s not, however, in the I concur conviction. do analysis ty’s section 7 of the article Constitution. J. J.,C.

Andersen, Durham, with concurs — (concurring) only majori- I with the Madsen, J. concur analysis ty’s 7 of the under article section and result Washington State Constitution.

Case Details

Case Name: State v. Young

Court Name: Washington Supreme Court

Date Published: Feb 10, 1994

Citation: 867 P.2d 593

Docket Number: 58399-4

Court Abbreviation: Wash.