State v. Gunwall

CourtUnited States State Supreme Court of Washington
Citation720 P.2d 808,106 Wn.2d 54,76 A.L.R.4th 517
Docket NumberNo. 50979-4,50979-4
Parties, 76 A.L.R.4th 517, 55 USLW 2003 STATE of Washington, Respondent, v. Laura J. GUNWALL, Appellant, and Ken Bohan, Defendant.
Decision Date12 June 1986

Page 54

106 Wn.2d 54
720 P.2d 808, 76 A.L.R.4th 517, 55 USLW 2003
STATE of Washington, Respondent,
Laura J. GUNWALL, Appellant,
Ken Bohan, Defendant.
No. 50979-4.
Supreme Court of Washington,
En Banc.
June 12, 1986.

[720 P.2d 809]

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Mark Muenster, Washington Appellate Defender, Seattle, for appellant.

Seth Dawson, Snohomish County Prosecutor, S. Aaron Fine, Deputy, Everett, for respondent.

Preston, Thorgrimson, Ellis & Holman, Paul Lawrence, Seattle, for amicus curiae for appellant American Civil Liberties Union.

ANDERSEN, Justice.


At issue in this case is whether police can, without legal process, obtain the records of a telephone subscriber's long distance telephone calls (toll records) and by the use of a pen register also obtain the local telephone numbers the subscriber dials.

In December of 1983, the Snohomish County Prosecuting Attorney charged Laura Gunwall and her brother, Ken Bohan, with delivering, conspiring to deliver and possessing cocaine in violation of the Uniform Controlled Substances

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Act, RCW 69.50.401(a). Mr. Bohan has not appealed, therefore, we will herein refer to Ms. Gunwall as the sole defendant.

The defendant moved to suppress all evidence derived from a pen register and from telephone toll records obtained by Everett police officers without any valid legal process. Information from the pen register tapes and toll records was included in the affidavit that supported the warrant issued to search the defendant's house. The trial judge denied the defendant's motion and found her guilty on stipulated facts. The defendant appealed directly to this court. We granted direct review on the basis that her case contained important issues of first impression in this state. 1

The investigation of the defendant began on July 18, 1983, when an anonymous source told Everett police that she was selling cocaine from her home on Butler Avenue. Another informant described her as a "large quantity cocaine dealer", and said that her telephone number was 339-3698. Soon after receiving this information, the police learned that the defendant's brother had picked up cocaine from one "Mario" at the Everett Pacific Hotel. A detective confirmed that a Mario Alers, with a Florida address, had registered at the hotel on August 14 and 15, 1983.

On August 27, 1983, an undercover police officer met with Janice Mayer and gave Mayer $300 for some cocaine. Other officers followed Mayer as she drove to and from a home at 3010 Butler. Mayer returned to the officer with 1/8 ounce of cocaine.

[720 P.2d 810] Later that day, two undercover officers bought an additional 1/2 ounce of cocaine from Mayer. Police officers again watched her drive to 3010 Butler, enter the house, depart and drive back to the undercover officers with the cocaine. Mayer told the officers that her girl friend cut the cocaine from pound bags. When asked about the possibility of meeting her friend to arrange a larger purchase, Mayer stated, "Laurie doesn't like to meet too many people and I'm one of Laurie's closest friends." The officers bought

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cocaine from Mayer a third time on September 2, again after Mayer drove to and from 3010 Butler.

On August 29, a detective learned from the phone company that the number 339-3698 was listed to Laura Gunwall of 3010 Butler and asked for phone toll information regarding that number. Toll records for the defendant's phone number revealed several collect calls made to her number from a number listed to Mario Alers of Miami, Florida. The police confirmed Alers' 1982 arrest for possession of cocaine and drug equipment and for carrying a concealed weapon.

On August 31, the detective received a court order authorizing the placement of a pen register on the defendant's phone (the trial court later found that the order was obtained without any evidentiary showing. 2 ) The detective learned from the pen register tapes that several calls had been placed to airline reservation offices, and also to a Florida phone number listed to one William Navarro. It was then learned that Navarro had been contacted by United States customs agents regarding possible marijuana violations and in 1973 was convicted of mail fraud.

The detective contacted the airlines called from phone number 339-3698 and learned that L. Gunwall had reserved seats on two late-night flights to Miami. Another detective watched the defendant board one of the flights. With the aid of information obtained by use of the pen register, the officers traced the defendant to two or three hotels in Miami. While one detective pursued the telephone information, another detective contacted Janice Mayer by phone to arrange another cocaine purchase. Mayer again referred several times to "Laurie" as her source.

The defendant returned to Seattle on September 21, 1983, and a detective watched Janice Mayer meet her and drive her home. On September 28, Mayer sold an undercover officer 1/8 ounce of cocaine as a sample for a

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larger purchase. Police surveillance again indicated that Mayer got the cocaine from the defendant's residence. When Mayer produced the 1/8 ounce, the officer asked her if she had seen more cocaine. Mayer reported seeing 7 ounces in a safe and said that she could sell the officer 2 ounces whenever the officer was ready.

On the basis of this information, an Everett District Court judge issued a warrant to search the defendant's residence for cocaine and drug related equipment. The search was conducted on September 28, 1983, during which police seized large quantities of cocaine and cash.

Three basic issues are presented by this appeal.


ISSUE ONE. When is it appropriate for this court to resort to independent state constitutional grounds to decide a case, rather than deferring to comparable provisions of the United States Constitution as interpreted by the United States Supreme Court?

ISSUE TWO. Did the defendant have a protectable constitutional interest in the telephone numbers she called from her home telephone so as to prohibit the police from obtaining her long distance toll records and placing a pen register on her [720 P.2d 811] telephone line without first obtaining proper legal process?

ISSUE THREE. Did the affidavit for a search warrant support a finding of probable cause for the search of the defendant's residence independently of the information derived from the telephone toll records and pen register?



CONCLUSION. The following nonexclusive neutral criteria are relevant in determining whether, in a given situation, the Washington State Constitution should be considered as extending broader rights to its citizens than the United States Constitution: (1) the textual language; (2) differences in the texts; (3) constitutional history; (4) preexisting state law; (5) structural differences; and (6) matters of particular state or local concern.

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A recent law review article summarizes current Washington law regarding independent state constitutional grounds:

Washington is one of many states that rely on their own constitutions to protect civil liberties. Since the recent retrenchment of the United States Supreme Court in this area, the appellate courts of a majority of the states have interpreted their state constitutions to provide greater protection for individual rights than does the United States Constitution. 3

(Footnotes omitted.) The United States Supreme Court has recognized that the states can do this because each state has the "sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution." 4 This court has stated the rule in similar fashion. 5

The advocates of this relatively new movement to resort to independent state constitutional grounds tend to talk in terms of it being "increasingly necessary for the States in our federal scheme to assume a role of activism designed to adapt our law and libertarian tradition to changing civilization", 6 and to hail this trend as a triumph of personal liberty.

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On the other hand, those who oppose it talk in terms of "result oriented" judicial decisions, "constitution shopping", courts acting as "superlegislatures" and as an "all sail, no anchor" approach to state constitutional law. 7

As one commentator observes, "[f]inding instances of state courts' use of state constitutions independently of the Federal Constitution is easier than articulating a principled theory of when courts should in fact use the power they have to chart their own course." 8 Many of the courts now resorting to state constitutions rather than to analogous provisions of the United States Constitution simply announce that [720 P.2d 812] their decision is based on the state constitution but do not further explain it. The difficulty with such decisions is that they establish no principled basis for repudiating federal precedent and thus furnish little or no rational basis for counsel to predict the future course of state decisional law.

To us it is self evident that

a considerable measure of cooperation must exist in a truly effective federalist system. Both federal and state courts share the goal of working for the good of the people to ensure order and freedom under what is publicly perceived as a single system of law. ... Moreover, while a natural monolithic legal system is not contemplated, some consistency and uniformity between the state and federal governments in certain areas of judicial administration is desirable.

For these reasons, state courts should be sensitive to developments in federal law. Federal precedent in areas addressed by similar provisions in our state constitutions can be meaningful and instructive. We have recently recognized the importance of federal sources of constitutional doctrine.... The opinions of the Supreme Court, while not controlling on state courts construing their own

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constitutions, are...

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