State v. Hathaway

• Decision Date: 03 May 2011
• Docket Number: No. 40181–9–II.,40181–9–II.
• Parties: STATE of Washington, Respondent,v.Jennifer Joy HATHAWAY, Appellant.
• Court: Washington Court of Appeals

161 Wash.App. 634
251 P.3d 253

STATE of Washington, Respondent,
v.
Jennifer Joy HATHAWAY, Appellant.

No. 40181–9–II.

Court of Appeals of Washington, Division 2.

May 3, 2011.

[251 P.3d 256]

Jordan Broome McCabe, Attorney at Law, Bellevue, WA, for Appellant.Thomas A. Brotherton, Scott W. Rosekrans, Jefferson County Prosecutor's Office,

[251 P.3d 257]

Juelanne B. Dalzell, Attorney at Law, Prosecuting Attorney, Port Townsend, WA, for Respondent.QUINN–BRINTNALL, J.

¶ 1 A jury found Jennifer Joy Hathaway guilty of unlawful possession of a controlled substance (methamphetamine), in violation of RCW 69.50.4013. Hathaway appeals, arguing that a law enforcement officer's review of her driver's licensing records violated her privacy rights protected by article 1, section 7 of the Washington Constitution and the Fourth Amendment to the United States Constitution. She also challenges (1) sufficiency of the evidence, (2) the trial court's refusal to give a requested “mere proximity” jury instruction, (3) the elements included in the “to-convict” jury instruction, and (4) a $1,604.53 “jury demand fee” imposed at sentencing. Because Hathaway's privacy rights were not violated, sufficient evidence supports the jury's verdict, and the jury instructions were proper, we affirm Hathaway's conviction. But we agree with Hathaway that the trial court exceeded its statutory authority when it imposed a $1,604.53 jury demand fee. Accordingly, we affirm the conviction, but we remand to the trial court to correct Hathaway's judgment and sentence by reducing the jury demand fee to that allowed by statute.

FACTS

¶ 2 On July 16, 2008, Hathaway visited an inmate at the Jefferson County jail. Because the jail was short-staffed that day, Jefferson County Sheriff's Deputy Brian Anderson helped screen visitors. Specifically, Anderson ran a computer check of visitor names looking for outstanding warrants per the jail's standard visitor screening procedures; this standard check also provides driver licensing information. When Anderson learned that Hathaway's driving privileges were suspended, he asked jail staff to advise him if she left by driving a vehicle.

¶ 3 While sitting in his patrol car, Deputy Anderson learned from jail staff that Hathaway had entered a car. Anderson spotted the car, noted only a driver occupied it, and followed the car out of the jail parking lot. Anderson activated his patrol lights and siren to perform a traffic stop. Despite opportunities to pull over, Hathaway made three turns and then pulled over “[l]ess than a mile” from where Anderson had turned on his patrol lights. 1 Report of Proceedings (RP) at 40.

¶ 4 Deputy Anderson approached the vehicle and when he asked Hathaway for her driver's license, she said she did not have it with her. Anderson confirmed with his dispatch that Hathaway's driver's license had been suspended and he arrested her. He handcuffed her and walked her to his patrol car where he performed a search of her person incident to arrest. While Anderson searched Hathaway's legs, he heard a “tink” like “something hitting the ground.” 1 RP at 43. He looked up and saw a small clear plastic vial containing a white crystalline substance about six inches from Hathaway's foot. At trial, Anderson testified that the vial was underneath and behind his patrol car's rear wheel such that he would have run over it if it had been there before the stop. Anderson put Hathaway in his patrol car and read her Miranda¹ rights. When he asked her about the vial, Hathaway replied, “I don't know, it's not mine.” Clerk's Papers (CP) at 24. A forensics lab later confirmed that the vial contained 0.47 grams of methamphetamine.

¶ 5 The State charged Hathaway with unlawful possession of a controlled substance (methamphetamine), under RCW 69.50.4013(1), and third degree driving with a suspended license, under former RCW 46.20.342(1)(c) (2004). ² At the end of the first day of trial, the parties began discussing jury instructions. Hathaway objected to the State's proposed to-convict instruction because it omitted the element of “unlawfully” possessing the controlled substance.³ She

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proposed adding the element “[t]hat the defendant's possession was unlawful.” CP at 35. The parties agreed that they would meet and discuss their jury instruction dispute.

¶ 6 The next day, the trial court acknowledged that the parties had agreed to include unlawful possession as an element in the to-convict jury instruction. But Hathaway said that further research after the parties met revealed that possession did not have to include “unlawful” as an element. When the trial court asked Hathaway if she had any exceptions to the use of a to-convict jury instruction that included unlawful possession as an element, Hathaway responded, “I don't have any exceptions to what you proposed.” 2 RP at 81. The trial court also denied Hathaway's request to instruct the jury that “[m]ere proximity alone is not enough to establish constructive possession.” CP at 37.

¶ 7 A jury found Hathaway guilty of unlawful possession of a controlled substance. The trial court sentenced Hathaway to 3 months confinement and/or work release and 12 months community custody. The trial court also imposed $3,967.35 in legal financial obligations, which included a $1,604.53 “[j]ury demand fee” that Hathaway stated she felt was excessive. CP at 56. Hathaway timely appeals.

ANALYSIS Privacy Rights in Driver's Licensing Records

¶ 8 Hathaway challenges Deputy Anderson's investigation of her driver's licensing records, arguing that it was a warrantless search that violated her privacy rights under article 1, section 7 of the Washington State Constitution and the Fourth Amendment of the United States Constitution. Specifically, she argues that accessing her driver's licensing information, without her consent or probable cause, is an intrusion on her privacy rights that is not reasonably related to ensuring the safe operation of a jail. Hathaway asks us to hold that her arrest was unlawful and reverse her conviction. We discern no error.

¶ 9 When presented with challenges under both the state and federal constitutions, we review state constitutional challenges first. State v. Puapuaga, 164 Wash.2d 515, 521, 192 P.3d 360 (2008). It is well established that article I, section 7 of the Washington Constitution qualitatively differs from, and in some areas provides greater protections than, the Fourth Amendment. Puapuaga, 164 Wash.2d at 521–22, 192 P.3d 360; State v. McKinney, 148 Wash.2d 20, 26, 60 P.3d 46 (2002). Accordingly, a Gunwall ⁴ analysis is unnecessary to establish that we should undertake an independent state constitutional analysis. State v. Jackson, 150 Wash.2d 251, 259, 76 P.3d 217 (2003); McKinney, 148 Wash.2d at 26, 60 P.3d 46. The relevant question is whether article I, section 7 affords enhanced protection in this particular context. McKinney, 148 Wash.2d at 26, 60 P.3d 46.

¶ 10 Interpreting and applying article I, section 7 requires a two-part analysis. Puapuaga, 164 Wash.2d at 522, 192 P.3d 360. The first step requires determining whether the State “unreasonably intruded into a person's ‘private affairs.’ ” State v. Cheatam, 150 Wash.2d 626, 641–42, 81 P.3d 830 (2003) (internal quotation marks omitted) (quoting State v. Boland, 115 Wash.2d 571, 577, 800 P.2d 1112 (1990)); see also Puapuaga, 164 Wash.2d at 522, 192 P.3d 360. Private affairs are those that reveal intimate or discrete details of a person's life. State v. Jorden, 160 Wash.2d 121, 126, 156 P.3d 893 (2007). Private affairs are determined, in part, by examining the historical treatment

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of the interest asserted and are not based on a person's subjective expectation of privacy. Puapuaga, 164 Wash.2d at 522, 192 P.3d 360. If an historical analysis does not show an interest is protected under article I, section 7, we consider whether the expectation of privacy is one that a citizen of this state is entitled to hold. Puapuaga, 164 Wash.2d at 522, 192 P.3d 360. This part of the analysis includes a review of (1) the nature and extent of the information that may be obtained as a result of the governmental conduct, and (2) the extent that the information has been voluntarily exposed to the public. Puapuaga, 164 Wash.2d at 522, 192 P.3d 360. If a person's private affairs are not disturbed, our analysis ends and there is no article I, section 7 violation. Puapuaga, 164 Wash.2d at 522, 192 P.3d 360.

¶ 11 Here, the private affairs inquiry focuses on a jail visitor's asserted privacy interest in her driver's licensing information contained in a state government database that a law enforcement officer accessed. Our Supreme Court has definitively held that citizens of this state have no protected privacy interest under article I, section 7 of our state constitution in their Department of Licensing (DOL) driver's records. McKinney, 148 Wash.2d at 32, 60 P.3d 46. As our Supreme Court explained,

DOL records are kept by a government agency for use by that agency and law enforcement. Considering the purpose for which these records are created, citizens of this state are not entitled to expect that their information is private and protected from disclosure for law enforcement purposes.

Based on the historical treatment of driver's license records, the fact that these records reveal little about a person's associations, financial dealings, or movements, and the purpose for which the State compiles and maintains these records, we hold that there is no protected privacy interest in the information contained in a DOL driver's record under article I, section 7 of our state constitution.

McKinney, 148 Wash.2d at 32, 60 P.3d 46. McKinney controls and Hathaway's private affairs were not intruded on by Deputy Anderson's review of her driver's licensing records. Because Hathaway's private affairs were not intruded on, our article I, section 7 analysis ends and Hathaway's constitutional privacy rights were not...