State v. Carter
| Decision Date | 11 March 2004 |
| Docket Number | No. 72992-1.,72992-1. |
| Citation | 85 P.3d 887,151 Wash.2d 118 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Petitioner, v. Marcus A. CARTER, Respondent. |
Russell Hauge, Kitsap County Prosecutor, Port Orchard, for petitioner.
Marcus Carter, Port Orchard, for respondent.
Two off-duty investigators discovered an illegally modified firearm at a gun training class. The trial court suppressed the gun at trial, holding that the off-duty investigators should not have examined or seized the gun without a warrant. The Court of Appeals affirmed and the State appeals. The defendant had no expectation of privacy in his rifle when he put it in open view of the class and invited the students to handle it. Therefore, we hold that the investigators did not need a warrant to examine the rifle. We also hold that exigent circumstances existed which entitled the investigators to seize the gun without a warrant.
Bruce Jackson and Frank Clark are criminal investigators with the Pierce County prosecutor's office. They are not considered law enforcement officers, nor do they have law enforcement powers. The defendant, Marcus Carter, was the chief instructor for Kitsap Rifle and Revolver Club and was certified by the Washington State Criminal Justice Training Commission to teach firearms training.
On May 15, 1999, Jackson and Clark attended a National Rifle Association certified firearms instructor class in Kitsap County taught by Carter. Jackson and Clark were attending the class for personal reasons in order to become certified as instructors for the junior rifle program at the Tacoma Rifle and Revolver Club.
Carter began class by asking each student to prepare an introduction of a fellow student. Accordingly, another student introduced Jackson, informing the group and Carter that Jackson was a chief criminal investigator for the Pierce County prosecutor's office. Sometime later, Carter brought out various firearms and set them on tables before the class. He asked the students to familiarize themselves with the firearm of their choice and prepare a demonstration during which they would describe the proper handling and safety functions of the firearm. Among the firearms was an AR-15 owned by Carter. Jackson was very familiar with the AR-15 and chose that weapon to demonstrate to the class.
The AR-15 rifle is the semiautomatic, civilian version of the automatic, military M-16 rifle. An automatic weapon will continue to fire as long as the trigger is held, and is commonly known as a machine gun. It is generally illegal to own an M-16. RCW 9.41.190.
Jackson noticed that the safety lever on the AR-15 rotated into a position that corresponds to the automatic fire selection on an M-16. The AR-15 safety lever cannot rotate into this position without having been modified. Jackson also noticed that the lever had the silver color and the finish of an M-16, rather than the traditional charcoal-black color of an AR-15. Jackson suspected that the AR-15 had been modified to allow it to fire automatically. He operated the firing mechanism and determined the weapon was capable of automatic fire. Jackson showed the gun to Clark, who concurred with Jackson's observations.
Jackson then opened the gun by removing a pin that allows the gun to pivot open. Jackson noticed immediately that a small aluminum block called an autosear had been added. An autosear, which prevents an automatic gun from jamming, is not available for purchase. Jackson asked Carter if the gun had been modified and Carter admitted that it had. As Jackson began to close the gun, Carter removed the autosear from the gun and put it in his pocket.
After class when the other students had left, Jackson and Clark approached Carter about the rifle. Carter admitted that he had put M-16 parts in the rifle to replace those AR-15 parts that were designed for semiautomatic operation, specifically identifying the bolt carrier, hammer, selector switch, and autosear. Carter admitted that the rifle could fire in fully automatic mode. With the gun still in their possession, Jackson and Clark told Carter that it was a felony to own such a weapon.
Carter then denied that the gun was illegal and insisted that the gun would not fire in a full-automatic mode. Carter wanted to demonstrate it to Jackson and Clark if they would let him take it to the range with a loaded magazine. Carter went to his car to collect some ammunition. Carter then engaged in what Jackson and Clark described as furtive movements. Carter began rummaging through items in the backseat of his car, and then returned to the classroom, and called out to another man that he needed a punch, a straight steel pin that would disable the autosear. Jackson told Carter that he would not be allowed to destroy or modify the autosear.
Jackson and Clark testified to feeling that the situation was quickly getting out of control and that Carter was very agitated and antagonistic. Carter grabbed the gun from Clark's hands and walked briskly back to his car. Jackson and Clark noticed a loaded 30-round magazine for the rifle in Carter's rear pocket. As Carter kneeled on the front seat in his car and fumbled with metal objects on the floor, Jackson saw that Carter had a loaded pistol under his shirt. Jackson told Carter that he felt Carter was posing a potentially lethal hazard to them. Jackson told Carter to turn around and bring his hands into view, which Carter failed to do. Jackson and Clark then gave Carter a choice: either he give them the rifle and autosear and they would give him a receipt for it and submit it for testing to the Washington State Patrol Crime Lab, or they would call the police. Carter delayed, so Clark placed a 911 call and asked that a deputy be sent. When Carter discovered the call had been made, he relinquished the rifle and autosear, and Jackson and Clark gave Carter a receipt. A deputy arrived, who asked Jackson and Clark to maintain custody of the AR-15. Jackson and Clark filed a report on the incident.
Carter was charged with one count of possessing a machine gun in violation of RCW 9.41.190(1) and .010(7). Carter moved to suppress the rifle, contending that the search and seizure of the rifle were unlawfully conducted without a warrant. The trial court agreed and dismissed the charges against Carter with prejudice. The Court of Appeals affirmed in an unpublished opinion, and the State appeals. State v. Carter, noted at 112 Wash.App. 1046, 2002 WL 31186936 (2002). We reverse.
As a general rule, neither state nor federal constitutional protections against unreasonable searches and seizures are implicated, without state action. In re Pers. Restraint of Maxfield, 133 Wash.2d 332, 337, 945 P.2d 196 (1997). The State contends that Jackson and Clark were not acting as state agents at the time of the search and seizure of Carter's firearm. The trial court found, and the Court of Appeals affirmed, that Jackson and Clark were acting in their official capacities as criminal investigators at the time of the search and seizure of Carter's firearm and were thus state actors. Carter, 2002 WL 31186936, at **3-4. The trial court also concluded that Jackson's and Clark's examination and seizure of the AR-15 was an unconstitutional violation of Carter's privacy.
Review of conclusions of law entered by the trial court at a suppression hearing is de novo. State v. Cardenas, 146 Wash.2d 400, 407, 47 P.3d 127, 57 P.3d 1156 (2002). It is not necessary for us to review the trial courts finding of state action because even if Jackson and Clark were state actors, their actions in examining and seizing the gun did not require a warrant. Therefore, we turn to the question of whether Carter had a recognizable privacy interest in the AR 15 he provided to the class.
The federal constitution provides the minimum protection against warrantless searches and seizures. Our state constitution generally provides greater protection under article I, section 7, and we begin our evaluation of any expectation of privacy under the state provision. City of Seattle v. Mesiani, 110 Wash.2d 454, 456, 755 P.2d 775 (1988).1
Article I, section 7 of the Washington Constitution provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." This provision protects a person's home and private affairs from warrantless searches. State v. Young, 123 Wash.2d 173, 181, 867 P.2d 593 (1994). An unlawful search occurs when the State has unreasonably intruded into a person's private affairs. Young, 123 Wash.2d at 181, 867 P.2d 593. A search must be conducted pursuant to a warrant, or else meet one of the exceptions to the warrant requirement. State v. Myrick, 102 Wash.2d 506, 510-11, 688 P.2d 151 (1984). The Court of Appeals concluded that Carter had a privacy interest in the AR-15, and the viewing of the gun's interior without a warrant was an unlawful search. Carter, 112 Wash.App. 1046, 2002 WL 31186936, at *5. We disagree.
Article I, section 7 recognizes privacy interests that Washington citizens have held, and should be entitled to hold, free from governmental intrusion. Myrick, 102 Wash.2d at 511, 688 P.2d 151. Thus, the first step is to determine whether the claimed privacy interest is one that has been recognized in our state. We find no historical precedent establishing a privacy interest in a gun itself. Furthermore, we do not find a basis for recognizing a privacy interest in an object which has voluntarily been placed in open view of the public and which the public has been encouraged to handle.
Generally, one does not have a privacy interest in what is voluntarily exposed to the public. Young, 123 Wash.2d at 182,867 P.2d 593. No search occurs, and the protections of article I, section 7 are not implicated, when a law enforcement officer is able to detect something by using one or more of his senses while...
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