State v. Jorden

• Decision Date: 26 April 2007
• Docket Number: No. 76800-5.,76800-5.
• Citation: 160 Wn.2d 121,156 P.3d 893
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Timothy Enrique JORDEN, Petitioner.

156 P.3d 893

160 Wn.2d 121

STATE of Washington, Respondent, v. Timothy Enrique JORDEN, Petitioner.

No. 76800-5.

Supreme Court of Washington, En Banc.

Argued January 26, 2006.

Decided April 26, 2007.

Rebecca Wold Bouchey, Attorney at Law, Mercer Island, WA, for Petitioner.

Todd Andrew Campbell, Pierce County Pros. Attorneys Office, Tacoma, WA, for Respondent.

Douglas B. Klunder, Attorney at Law, Seattle, WA, for Amicus Curiae on behalf of American Civil Liberties Union of Washington, Amicus Curiae on behalf of Pacific Hospitality Investment, Inc.

BRIDGE, J.

¶ 1 Timothy Jorden appeals his conviction for unlawful possession of cocaine. On March 15, 2003, a Pierce County deputy sheriff conducted a random warrant check of the Golden Lion Motel's guests via the guest registry and discovered Jorden's presence at the Lakewood motel as well as the fact of two outstanding warrants for Jorden's arrest. Deputy sheriffs then entered Jorden's motel room in order to arrest him for the outstanding warrants. Upon entering the room, officers saw cocaine in plain view. Jorden contends that the random check of the motel registry revealing his whereabouts constitutes a violation of his privacy rights under article I, section 7 of the Washington State Constitution. We agree and reverse both the Court of Appeals decision and Jorden's conviction.

I Facts and Procedural History

¶ 2 The Pierce County Sheriff's Department takes part in the "Lakewood Crime-Free Hotel Motel Program." 1 Verbatim Report of Proceedings (VRP) at 11. The program offers assistance to motels and hotels that have a history of significant criminal activity, providing training on methods of crime reduction. The program also encourages officers to review the guest registries of hotels and motels on a random basis and without individualized or particularized suspicion.¹ Officers often conduct random criminal checks of the names in guest registries at motels with reputations for frequent criminal activity. When checking into a participating motel, guests are advised that a valid identification is required for check-in and that the identification information is kept on file, but the guests are not told of the possibility for random, suspicionless searches of the registry by law enforcement.

¶ 3 On March 15, 2003, Deputy Reynaldo Punzalan conducted a random check of the guest registry at the Golden Lion. Punzalan testified that he visited the motel that day as part of a routine check of the motel. He also testified that because of the motel's high volume of criminal incidents, it was not unusual for officers to visit the Golden Lion once per shift of their own accord. When Punzalan ran the name of guest Timothy Jorden through the mobile data computer in his vehicle, he found there were outstanding felony warrants for Jorden. Punzalan called for backup and confirmed Jorden's room number using motel records. When backup arrived, Punzalan and his fellow officers knocked at Jorden's door. After a couple of minutes, the door was answered by a female occupant. Deputy Punzalan immediately removed the woman from the doorway and entered the room, whereupon an unclothed Jorden was discovered in the bed. Drug paraphernalia and a tin containing a substance later identified as crack cocaine were on a table nearby. Jorden was arrested and charged with unlawful possession of a controlled substance.

¶ 4 Prior to trial, Jorden moved to suppress evidence of the drugs and drug paraphernalia, arguing it was based on an illegal search. Jorden argued that Deputy Punzalan's search of the motel registry violated Jorden's privacy rights under the state and federal constitutions, though Jorden's argument primarily focused on the federal constitution. After considering federal case law, testimony from Deputy Punzalan on the practices surrounding the random registry checks, and argument from both parties, the trial court denied the motion. Evidence of the drugs and drug paraphernalia was introduced at trial. Jorden was convicted and sentenced to 22 months in prison for unlawful possession of a controlled substance.

¶ 5 Jorden appealed, arguing that although the random registry check does not violate federal constitutional protections, it does violate state constitutional protections. The Court of Appeals concluded that the act of checking into a motel and the information required to do so—the same information found on a driver's license—does not constitute a private affair protected by article I, section 7. State v. Jorden, 126 Wash.App. 70, 74, 107 P.3d 130 (2005). Jorden filed a petition for review, which we granted.²

II Analysis

¶ 6 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." "[I]t is well established that article I, section 7 qualitatively differs from the Fourth Amendment and in some areas provides greater protections than does the federal constitution." State v. Surge, ___ Wash.2d ___, at ___, 156 P.3d 208 (2007). We must therefore determine "whether article I, section 7 affords enhanced protection in the particular context." Id. Accordingly, we must determine whether that heightened protection is available in these circumstances to Jorden.

¶ 7 Article I, section 7 protects against warrantless searches of a citizen's private affairs. Therefore, a warrantless search is per se unreasonable unless it falls under one of Washington's recognized exceptions. State v. Hendrickson, 129 Wash.2d 61, 70-71, 917 P.2d 563 (1996). Here, the State does not argue the motel registry review falls into one of the exceptions, but argues that the information in the registry is not a private affair and thus there was no search triggering article I, section 7 protection.

¶ 8 Private affairs are those "`interests which citizens of this state have held, and should be entitled to hold, safe from government trespass.'" In re Pers. Restraint of Maxfield, 133 Wash.2d 332, 339, 945 P.2d 196 (1997) (plurality opinion) (quoting State v. Myrick, 102 Wash.2d 506, 511, 688 P.2d 151 (1984)). In determining whether a certain interest is a private affair deserving article I, section 7 protection, a central consideration is the nature of the information sought—that is, whether the information obtained via the governmental trespass reveals intimate or discrete details of a person's life. See State v. Jackson, 150 Wash.2d 251, 262, 76 P.3d 217 (2003); State v. McKinney, 148 Wash.2d 20, 29, 60 P.3d 46 (2002); Maxfield, 133 Wash.2d at 341, 354, 945 P.2d 196;³ State v. Young, 123 Wash.2d 173, 183-84, 867 P.2d 593 (1994); State v. Boland, 115 Wash.2d 571, 578, 800 P.2d 1112 (1990).

¶ 9 In addition, this court has also considered whether there are historical protections afforded to the perceived interest. McKinney, 148 Wash.2d at 27, 60 P.3d 46. And, where the perceived interest involves the gathering of personal information by the government, this court has also considered the purpose for which the information sought is kept, and by whom it is kept. Id. at 32, 60 P.3d 46.

¶ 10 Finally, this court has consistently expressed displeasure with random and suspicionless searches, reasoning that they amount to nothing more than an impermissible fishing expedition. See Maxfield, 133 Wash.2d at 341, 945 P.2d 196; Jackson, 150 Wash.2d at 267, 76 P.3d 217; Young, 123 Wash.2d at 186-87, 867 P.2d 593 (expressing concern over an investigatory technique that "eviscerate[d] the traditional requirement that police identify a particular suspect prior to initiating a search"); City of Seattle v. Mesiani, 110 Wash.2d 454, 455 n. 1, 755 P.2d 775 (1988) (program involving random sobriety checkpoints invalidated under article I, section 7 because it lacked particularized and individualized suspicion).

¶ 11 Setting aside for a moment the question of the nature of the information sought, i.e., whether motel guest registries reveal intimate details about one's life, we first evaluate the historical protections surrounding motel registries and the purpose for which such information is gathered. Although individuals have a privacy interest in their motel rooms, Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964), historical data does not suggest whether Washington's citizens have held, or should be entitled to hold, motel guest registries safe from suspicionless government trespass. The State offers common law authority that includes the use of guest registries in relation to the prosecution of a criminal suspect. Br. of Resp't at 8. But in each of the cases cited, law enforcement had a particularized and individualized suspicion about the suspect that preceded review of the registry. See, e.g., State v. Gunwall, 106 Wash.2d 54, 56, 720 P.2d 808 (1986) (police reviewed hotel register to confirm aspects of informant's tip about suspected cocaine dealer); State v. Tharp, 96 Wash.2d 591, 593, 637 P.2d 961 (1981) (prosecution entered motel registration slip into evidence to show defendant registered with stolen car at motel); State v. Tweedy, 165 Wash. 281, 283, 5 P.2d 335 (1931) (guest register entered into evidence to show defendant charged with giving intoxicating liquor to minors invited into his hotel room).⁴ Here, there was no particularized and individualized suspicion of Jorden preceding review of the registry. Thus, an historical inquiry does not resolve this question.

¶ 12 As to the purpose for which such information is kept, and by whom, RCW 19.48.020 requires hotels and motels to keep record of a guest's arrival and departure for one year. RCW 19.48.020 is found within a title that sets forth various miscellaneous business regulations and within a chapter regulating lodging houses and restaurants. There is no indication that RCW 19.48.020 was intended to require lodging records for law enforcement purposes. See McKinney, 148 Wash.2d at 27-29, 32, 60 P.3d 46 (citizens are not entitled...