State v. Puapuaga

• Decision Date: 18 September 2008
• Docket Number: No. 80041-3.,80041-3.
• Citation: 164 Wn.2d 515,192 P.3d 360
• Parties: STATE of Washington, Respondent, v. Jesie Pele PUAPUAGA, Petitioner.
• Court: Washington Supreme Court

192 P.3d 360

164 Wn.2d 515

STATE of Washington, Respondent, v. Jesie Pele PUAPUAGA, Petitioner.

No. 80041-3.

Supreme Court of Washington, En Banc.

September 18, 2008.

Barbara L. Corey, Attorney at Law, Tacoma, WA, for Petitioner.

Kathleen Proctor, Stephen D. Trinen, Pierce County Prosecuting Atty. Office, Tacoma, WA, for Respondent.

C. JOHNSON, J.

¶ 1 This case asks us to determine whether it is proper for the State to seize by ex parte order the personal property of a pretrial detainee who is transferred to Western State Hospital for a competency evaluation. Jesie Pele Puapuaga, who is charged with second degree murder, was transferred to Western State Hospital for a competency evaluation. Upon arrival, Puapuaga's items were inventoried by hospital staff. Among his personal items was what appeared to be state discovery materials evidently not authorized for release to Puapuaga, plus a threatening note directed to one of Puapuaga's codefendants. The State was notified of the materials and obtained ex parte orders seizing the property. The trial court denied Puapuaga's motion for immediate return of the property and for dismissal of the criminal prosecution under Criminal Rule (CrR) 8.3(b), upheld the ex parte orders, and appointed a special master to review the items in camera to protect any privileged materials. We affirm the trial court.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Jesie Pele Puapuaga is charged in Pierce County with second degree murder. His case was assigned to Judge Tollefson with a trial date of October 15, 2007. The court ordered Puapuaga to undergo a competency evaluation at Western State Hospital.¹ Upon his arrival at the hospital on March 16, 2007, staff inventoried Puapuaga's property and found a box containing what appeared to be unredacted state discovery documents, including autopsy photographs of the victim, and what appeared to be a threatening message directed to one of Puapuaga's codefendants and written on a "kite."² The State had not approved release of discovery materials to Puapuaga.

¶ 3 A mental health evaluator e-mailed the deputy prosecutor and defense counsel about these discoveries. Later that day, the deputy prosecutor, upon written motion, obtained from Judge Serko an ex parte order "impounding" Puapuaga's property by Western State.³ Clerk's Papers (CP) at 5-7. The prosecutor contacted the mental health evaluator and requested a list of the items taken from Puapuaga, which was e-mailed to her on March 22, 2007. The following day, the prosecutor obtained another ex parte order from Judge Serko transferring the property to the Pierce County Prosecuting Attorney's Office. CP at 9-10. Defense counsel was available both days, and the State claims that although Judge Tollefson was in session both days, he was unavailable. Neither ex parte order was obtained in open court and no record was made of the proceedings. The State did not inform defense counsel of either ex parte order.

¶ 4 A search warrant for the kite was also obtained by the Lakewood Police Department, but it is unclear whether it was executed. According to the State, on March 23, 2007, a detective of the Lakewood Police Department went to Western State and served a warrant for the kite and put it into evidence. CP at 39. However, in the detective's affidavit, the detective refers only to the court's order, and there is no evidence of such a search warrant contained in the record.⁴ CP at 51. The detective went to Western State, secured the lid of the box containing the items with evidence tape, and stored the box in his office. The detective did not look at the documents. The box has since been transferred to Judge Tollefson's chambers.

¶ 5 Defense counsel objected to these developments, asserting a violation of her client's privacy rights and violation of the attorney-client privilege. Counsel insisted she had provided no discovery materials to her client, suggesting that he might have obtained the materials from someone in the jail. The State alleged that there had been a discovery violation and that there was possible evidence of witness tampering, and moved for appointment of a special master to review the documents and redact any attorney-client communications. Defense counsel first agreed to appointment of a special master but later opposed the procedure and moved for return of the material and for disqualification of the deputy prosecutor or dismissal of the prosecution.

¶ 6 On April 13, 2007, Judge Tollefson entered findings and conclusions on admissibility of the impounded materials and concluded that the State's actions were a reasonable exercise of police power. CP at 76-77. The court granted the State's motion for appointment of a special master and denied Puapuaga's motions, including his motion to dismiss the prosecution and for immediate return of the property. Under the court order, the special master is to review the impounded materials in the presence of defense counsel and determine whether they contain any privileged communications or indications of defense preparation. The special master is then to redact the protected materials and turn the remaining items over to the court. The court will then hold another hearing to determine what items, if any, should be turned over to the State.

¶ 7 The court stayed its decision to permit Puapuaga to move in this court for a stay and for direct discretionary review of the trial court's order appointing a special master. Our commissioner granted a stay pending further order of this court and referred the motion for discretionary review to the court. We continued the stay and granted review.

ISSUE

Whether the trial court properly denied Puapuaga's motion to dismiss his second degree murder charge or for return of the seized items and granted the State's motion for appointment of a special master.

ANALYSIS

¶ 8 Two things must be shown before a court can order dismissal of charges under CrR 8.3(b).⁵ First, a defendant must show arbitrary action or governmental misconduct. Second, a defendant must show prejudice affecting the defendant's right to a fair trial. State v. Michielli, 132 Wash.2d 229, 240, 937 P.2d 587 (1997). A trial court's decision to dismiss charges is reviewable under the manifest abuse of discretion standard.

I

¶ 9 Puapuaga claims that the State unlawfully seized and continues to hold his personal property. He claims that by seizing his property through ex parte orders, the State violated his constitutional rights and committed governmental misconduct. These actions, Puapuaga maintains, prejudiced his ability to conduct a timely investigation into his case.⁶ Among the constitutional rights violated, Puapuaga asserts violation of the right to privacy under Wash. Const. art. I, § 7 and the U.S. Const. amend. IV.⁷ According to Puapuaga, under article I, section 7⁸ and the Fourth Amendment,⁹ pretrial detainees have a reasonable expectation of privacy in their property that prohibits government search and seizure absent a showing of legitimate reason for breaching such privacy rights.

¶ 10 When presented with arguments under both the state and federal constitutions, we review the state constitution arguments first. State v. Surge, 160 Wash.2d 65, 71, 156 P.3d 208 (2007). We have found that article I, section 7 provides greater protection of a person's right to privacy than the Fourth Amendment. In the context of this case, interpretation and application of article I, section 7 requires a two-part analysis. The first step requires us to determine whether the action complained of constitutes a disturbance of one's private affairs. If there is no private affair being disturbed, the analysis ends and there is no article I, section 7 violation. If, however, a private affair has been disturbed, the second step is to determine whether authority of law justifies the intrusion. Authority of law may be satisfied by a valid warrant. Surge, 160 Wash.2d at 71, 156 P.3d 208.

¶ 11 The private affairs inquiry focuses on those privacy interests that Washington citizens have held and should be entitled to hold safe from governmental trespass absent a warrant. Private affairs are not determined according to a person's subjective expectation of privacy but, in part, are determined by examining the historical treatment of the interest asserted. If history does not show whether the interest is one entitled to protection under article I, section 7, we then ask whether the expectation is one that a citizen of this state is entitled to hold. This part of the inquiry includes a look into the nature and extent of the information that may be obtained as a result of the governmental conduct and the extent to which the information has been voluntarily exposed to the public. Surge, 160 Wash.2d at 72, 156 P.3d 208.

¶ 12 Here, the private affairs inquiry focuses on a pretrial detainee's asserted privacy interest in their personal effects, not on the privacy interest of the ordinary citizen. Puapuaga does not claim that pretrial detainees historically have maintained any specific privacy interest but argues instead that the privacy expectation is one he is entitled to hold. He claims the government could obtain an extensive amount of information for its investigation through the seized items. Also, he submits that he did not voluntarily expose the information but took the materials with him to Western State, affirming his intention to maintain the privacy of his property.

¶ 13 Contrary to Puapuaga's contention, the private affairs inquiry in this case is resolved by reviewing historical treatment of the privacy interest asserted. We have recognized that an inmate's expectation of privacy is necessarily lowered while in custody. State v. Campbell, 103 Wash.2d 1, 23, 691 P.2d 929 (1984) (holding State's search and seizure of work release inmate's car did not violate the U.S. Const. amend. IV or Const. art. I, § 7). In State v. Cheatam, 150 Wash.2d 626, 81 P.3d...