State v. Boyce

• Citation: 723 P.2d 28,44 Wn.App. 724
• Decision Date: 04 August 1986
• Docket Number: No. 15230-1-I,15230-1-I
• Parties: STATE of Washington, Respondent, v. Cindi Lu BOYCE, Appellant, Peter R. Hartley, and Nancy J. Beilfus, Defendants.
• Court: Court of Appeals of Washington

Page 724

44 Wn.App. 724

723 P.2d 28

STATE of Washington, Respondent, v. Cindi Lu BOYCE, Appellant, Peter R. Hartley, and Nancy J. Beilfus, Defendants.

No. 15230-1-I.

Court of Appeals of Washington,

Division 1.

Aug. 4, 1986.

Dori Jones, Wash. Appellate Defender, Seattle, for appellant.

Michael D. McGee, Snohomish Co. Pros. Atty., Snohomish Co. Courthouse, Seth A. Fine, Snohomish Co. Deputy Pros. Atty., Everett, for respondent.

COLEMAN, Judge.

Cindi Lu Boyce appeals her conviction for possession of a controlled substance with intent to manufacture or deliver. We affirm.

On July 15, 1983, an informant advised detectives of the Everett Police Department Narcotics Unit that Boyce was distributing and selling heroin in Everett. The informant also told the police that Boyce kept her main supply of heroin in a safety deposit box in a bank in Everett.

The Everett police verified several facts provided by the informant and began a surveillance of Boyce and her alleged distributor. On July 22, 1983, a detective made contact with several banks in the Everett area and determined that Boyce had a safety deposit box at Olympic Bank. Later that day, a detective entered the vault area ¹ at Olympic Bank along with narcotics detection dog Sammy. Sammy "alerted" ² to box 19, which was Boyce's box. Based on the surveillance, the informant's tip, and the canine sniff, the police obtained a warrant to search Boyce's safety deposit box. Heroin was found in the box.

Boyce moved to suppress evidence seized as a result of the search of the safety deposit box. She argued, inter alia that the canine sniff was an unreasonable search in the absence of a warrant. The court denied the motion to suppress, and Boyce was convicted on stipulated evidence.

On appeal, Boyce raises a single issue. She contends that the canine sniff of her safety deposit box without a warrant violated article 1, section 7 of the Washington Constitution.

As Boyce concedes, this issue has already been settled under Fourth Amendment analysis. In United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), the United States Supreme Court stated that a canine sniff is not a search within the meaning of the Fourth Amendment. After holding that a traveler's luggage could be detained on the basis of reasonable, articulable suspicion that the luggage contains contraband or evidence of a crime, the Court stated that exposing the detained luggage to a narcotics detection dog was not a search. The canine sniff, the Court said,

does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.

103 S.Ct. at 2644.

In United States v. Jacobsen, 466 U.S. 109, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984), the Court reaffirmed its Place analysis. In Jacobsen, the Court analyzed whether a chemical field test was a search under the Fourth Amendment. Analogizing to a canine sniff, the Court held that a chemical test that merely discloses whether or not a substance is cocaine does not compromise any legitimate interest in privacy.

Congress has decided--and there is no question about its power to do so--to treat the interest in "privately" possessing cocaine as illegitimate; thus governmental conduct that can reveal whether a substance is cocaine, and no other arguably "private" fact, compromises no legitimate privacy interest.

(Footnote omitted.) 104 S.Ct. at 1662.

Since the decision in Place, state courts have applied the Supreme Court's holding in a variety of factual contexts. See, e.g., Cardwell v. State, 482 So.2d 512 (Fla.App.1986) (canine sniff of vehicles at roadblock not a search); People v. Salih, 173 Cal.App.3d 1009, 219 Cal.Rptr. 603 (Cal.App.1985) (canine sniff of mailed parcel not a search); Strout v. State, 688 S.W.2d 188 (Tex.App.1985) (canine sniff of safety deposit box not a search).

Several states have considered whether a canine sniff is a search under their state constitutions. See People v. Unruh, 713 P.2d 370 (Colo.1986) (canine sniff of locked safe was search under Colorado constitution requiring reasonable suspicion); State v. Kosta, 75 Or.App. 713, 708 P.2d 365 (1985), rev. allowed, 300 Or. 545, 715 P.2d 92 (1986) (court specifically reserves question of whether canine sniff is a search under Oregon constitution; court decides that even if it was a search, it was reasonable); Pooley v. State, 705 P.2d 1293 (Alaska App.1985) (canine sniff of luggage was search under Alaska constitution requiring reasonable suspicion); State v. Snitkin, 681 P.2d 980 (Hawaii 1984) (canine sniff of package in cargo holding room not a search under Hawaii constitution; however, court must still determine reasonableness of dog's use in particular circumstances). When courts do characterize the sniff as a search, they usually analogize the minimally intrusive nature of the search to the "stop and frisk" situation in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), requiring a reasonable suspicion in order to carry out the search. ³

Boyce argues that article 1, section 7 of the Washington Constitution, which states that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law", provides greater protection for individual rights in this situation. Our Supreme Court recently set out a framework for determining when it is appropriate to resort to independent state constitutional grounds to decide a case rather than deferring to comparable provisions of the United States Constitution. In State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986), the Court set forth six nonexclusive criteria as relevant in determining whether, in a given situation, the Washington State Constitution extends broader rights to its citizens than the United States Constitution: (1) the textual language of the state constitution, (2) significant differences in the texts of parallel provisions of the federal and state constitutions, (3) state constitutional and common law history, (4) preexisting state law, (5) differences in structure between the federal and state constitutions, and (6) matters of particular state interest or local concern. Gunwall, at 59, 720 P.2d 808.

In this case, we address the same state and federal constitutional provisions that were at issue in Gunwall. Thus, our analysis tracks the analysis of the Gunwall court. First, "due to the explicit language of Const. art. 1, § 7, under the Washington Constitution, the relevant inquiry for determining when a search has occurred is whether the State unreasonably intruded into the defendant's 'private affairs.' " State v. Myrick, 102 Wash.2d 506, 510, 688 P.2d 151 (1984). Next, we note, as did the Gunwall court, that the language of article 1, section 7 substantially differs from the parallel provision of the federal constitution. Third, we recognize that our State Constitutional Convention specifically rejected a proposal to adopt language identical to that of the Fourth Amendment.

We next examine preexisting state law to determine if federal constitutional analysis is consistent with previously developed state law. State v. Brooks, 43 Wash.App. 560, 567, 718 P.2d 837 (1986). A single Washington case, decided before Place and Jacobsen, addresses the validity of a canine sniff. In State v. Wolohan, 23 Wash.App. 813, 598 P.2d 421 (1979), review denied, 93 Wash.2d 1008 (1980), the court held that a canine sniff of a package being sent by common carrier was not an illegal search. Relying on Fourth Amendment analysis, the court found that the defendant had no reasonable expectation of privacy in the area in which the parcel was located or in the air space surrounding the package. In a footnote, however, the court limited its holding:

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