Eggleston v. Pierce County, 71296-4.

CourtUnited States State Supreme Court of Washington
Citation64 P.3d 618,148 Wash.2d 760
Decision Date06 March 2003
Docket NumberNo. 71296-4.,71296-4.
PartiesLinda EGGLESTON, Appellant, v. PIERCE COUNTY, Washington, Myron Smith, Randy Sweem, Roger Gooch, and Ben Benson, Respondents.

64 P.3d 618
148 Wash.2d 760

Linda EGGLESTON, Appellant,
PIERCE COUNTY, Washington, Myron Smith, Randy Sweem, Roger Gooch, and Ben Benson, Respondents

No. 71296-4.

Supreme Court of Washington, En Banc.

Argued June 25, 2002.

Decided March 6, 2003.

64 P.3d 620
Timothy Ford, Maria Fox, Seattle, for Appellant

John Ladenburg, John Kugler, Tacoma, for Respondents.

Heller Ehrman White & McAuliffe, Timothy Butler, John Geyman, David Ward, Charles Wilkinson, Seattle, Amicus Curiae on Behalf of American Civil Liberties.

WAPA, Pamela Loginsky, Olympia, Amicus Curiae on Behalf of Wa. Association of Prosecuting Attorneys.

Groen Stephens & Klinge LLP, John Groen, Bellevue, Amicus Curiae on Behalf of Building Industry Association.

64 P.3d 619

Linda Eggleston's home was rendered uninhabitable by the execution of a criminal search warrant and preservation order. She sought relief in state and federal court for alleged civil rights violations, including violation of article I, section 16 of the Washington State Constitution. Her claims in federal court have been stayed, and the Pierce County Superior Court dismissed her article I, section 16 claim at summary judgment. Today, we are asked only to determine whether she has suffered a compensable takings under article I, section 16 of the Washington State Constitution. We conclude she has not, and affirm.


Mrs. Eggleston inherited a two-bedroom Tacoma home from her father in 1977. Mrs. Eggleston lived there with her adult son Brian Eggleston. Pierce County sheriffs received a tip that Brian was dealing drugs and placed the home under surveillance. Based on that surveillance, sheriffs obtained a search warrant. For safety reasons, officers decided to serve the warrants early in the morning of October 16, 1995. The team assembled at a nearby fire station and proceeded to the unlocked house.

Sheriff's deputies entered the house, a fire fight broke out, and one officer lost his life. Brian was arrested and charged with murder, assault, and various drug crimes. A law enforcement team specializing in homicide investigations searched the home and found drugs, cash, weapons, and drug paraphernalia.1

64 P.3d 621
Brian has since been convicted of drug dealing, and awaits retrial on other charges. State v. Eggleston, noted at 108 Wash. App. 1011, 2001 WL 1077846, at *1 (2001)

That night, an officer took Mrs. Eggleston to her mother's mobile home. The parties disagree whether Mrs. Eggleston could have moved home after the homicide team completed its search that evening. Brian's defense counsel suggested she not go home until investigations were complete.

On April 15, 1996, the trial court signed a search warrant authorizing the seizure of evidence pertaining to the murder from Mrs. Eggleston's house. The search warrant specifically authorized the police to collect:

Video tapes of police television shows, blood samples, gunshot residue, bed sheet with bloody hand print, two upholstered chairs with bloodstains, [c]ollection of trace evidence. Any other evidence discovered during the reconstruction of the crime scene and documentation of the process with photographs and video taping, measuring, vacuuming, or other evidence techniques necessary to reconstruct the crime scene.

Clerk's Papers (CP) at 264. The search warrant commanded the officers to "diligently search for any evidence, and any other, and if ... evidence material to the investigation or prosecution of said felony ... be found ... bring the same forthwith before me, to be disposed of according to law." CP at 264.

Leaving a copy of the warrant on the family piano, officers collected evidence, including two walls. One wall was a load bearing wall, leaving the house unstable and uninhabitable. Two months later the trial judge issued an order prohibiting "the defense, and any person acting on behalf of the defendant" from "destroying any item of possible evidentiary value" and "preserv[ing] the scene which is the location of the acts ... in its entirety." CP at 127.2 Mrs. Eggleston has cooperated with this order and has lived in her mother's mobile home ever since. She has not asked the trial court to modify this order to make it less burdensome upon her. While the attorneys discussed whether Mrs. Eggleston should be allowed to move back into her home, "it was kind of in limbo." CP at 282.

Brian has been charged and tried for murder, assault, and drug crimes. The first jury found him guilty of the drug and assault charges but deadlocked on murder; the second jury convicted him of second degree murder. See Eggleston, 108 Wash.App. 1011, 2001 WL 1077846, at *2. Both juries were taken to the house. The removed walls have

64 P.3d 622
not been used as evidence. The Court of Appeals reversed the assault and murder convictions and remanded for a new trial. Eggleston, 2001 WL 1077846, at **1, 34. The order preserving the scene will remain in effect until either vacated or modified, or until the criminal case is complete.

Mrs. Eggleston has not been charged with any crime. Her income consists of $500 a month in social security benefits, $420 of which is dedicated to the rent on her mother's mobile home. In 1998, she filed a claim for damages with Pierce County. Pierce County rejected her claim. She then brought suit in state and federal court for the destruction and loss of use of her property under several theories, including takings under the Washington and United States Constitutions. Respondent Pierce County removed her state claims to federal court. The federal court issued a stay covering her federal claims and returned the state takings claim to the Pierce County Superior Court. Eggleston v. Pierce County, 99 F.Supp.2d 1280, 1283 (W.D.Wash.2000).3 This state takings claim is the only issue before us.

Each party moved for summary judgment. The trial court judge granted summary judgment to the county. We accepted direct review.


We are mindful that Mrs. Eggleston has suffered a tragic loss of real property. Her loss may be compensable under a variety of theories not before us, including violation of the fourth, fifth, and fourteenth amendments to the United States Constitution. She has pleaded facts that might give rise to a substantive due process claim. But her claim is not a cognizable takings.

Article I, section 16 is significantly different from its United States constitutional counterpart, and in some ways provides greater protection. See, e.g., Mfr'd Hous. Cmtys. of Wash. v. State, 142 Wash.2d 347, 356 n. 7, 13 P.3d 183 (2000). Generally, we require the parties to present a Gunwall analysis (State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986)) before we will consider their state constitutional contentions. See Mfr'd Hous., 142 Wash.2d at 356 n.7, 13 P.3d 183. However, in this case, we find that neither party was prejudiced by the lack of an early Gunwall analysis, and reach the substantive claim.5

The power and the obligation of eminent domain plays a critical role in constitutional governance, and courts are obligated to carefully monitor its exercise. The State is vested with the power to take real property for public use, but must compensate the owner appropriately. Const. art. I, § 16. Similarly, "[p]olice power is inherent in the state by virtue of its granted sovereignty." Mfr'd Hous., 142 Wash.2d at 354, 13 P.3d 183. The State is vested with the power to regulate for the health, safety, morals, and general welfare, and the burdens imposed incidental to such regulations are not takings unless the burdens manifest in certain, enumerated ways. See Guimont v. Clarke, 121 Wash.2d 586, 854 P.2d 1 (1993) (articulating analytical framework for evaluating substantive due process, per se and regulatory takings claims); Conger v. Pierce County, 116 Wash. 27, 36, 198 P. 377 (1921); Tahoe-Sierra Pres. Council, Inc., v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 122 S.Ct.

64 P.3d 623
1465, 152 L.Ed.2d 517 (2002) (articulating requirements for federal regulatory takings); cf. Mugler v. Kansas, 123 U.S. 623, 668-69, 8 S.Ct. 273, 31 L.Ed. 205 (1887) (giving historical view).

Police power and the power of eminent domain are essential and distinct powers of government. Mfr'd Hous., 142 Wash.2d at 354, 13 P.3d 183; State ex rel. Long v. Superior Court, 80 Wash. 417, 419, 141 P. 906 (1914); see generally William B. Stoebuck, A General Theory of Eminent Domain, 47 WASH. L.REV. 553, 553-63 (1972). Courts have long looked behind labels to determine whether a particular exercise of power was properly characterized as police power or eminent domain.6 See, e.g., Conger, 116 Wash. 27, 198 P. 377. But clearly, not every government action that takes, damages, or destroys property is a taking. "Eminent domain takes private property for a public use, while the police power regulates its use and enjoyment, or if it takes or damages it, it is not a taking or damaging for the public use, but to conserve the safety, morals, health and general welfare of the public." Conger, 116 Wash. at 36, 198 P. 377 (emphasis added). The gathering and preserving of evidence is a police power function, necessary for the safety and general welfare of society. Cf. Conger, 116 Wash. at 36, 198 P. 377.

Our constitution provides:

Eminent Domain. Private property shall not be taken for private use, except for private ways of necessity, and for drains, flumes, or ditches on or across the lands of others for agricultural, domestic, or sanitary purposes. No private property shall be taken or damaged for public or private use without just compensation having been first made, or paid into court for the owner, and no right-of-way shall be appropriated to the use of any corporation other than municipal until full compensation therefor be first made in money, or ascertained and paid into court for the owner, irrespective of any benefit from any improvement proposed by such corporation, which compensation shall be

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