State v. Walter

• Decision Date: 10 August 1992
• Docket Number: No. 29804-6-I,29804-6-I
• Citation: 66 Wn.App. 862,833 P.2d 440
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Andrew C. WALTER, Appellant.

Page 862

66 Wn.App. 862

833 P.2d 440

STATE of Washington, Respondent, v. Andrew C. WALTER, Appellant.

No. 29804-6-I.

Court of Appeals of Washington Division One.

Aug. 10, 1992.

David B. Hirsch, Seattle, for appellant.

Norm Maleng, King County Pros. Atty. Ye-Ting Woo, Deputy, Seattle, for respondent.

PER CURIAM.

Andrew Walter sought discretionary review of the RALJ court decision affirming his conviction in Seattle District Court for preparation of a facsimile driver's license. A commissioner of this court denied the motion. Walter filed a motion to modify the commissioner's ruling. We grant the motion to modify, accept discretionary review, accelerate review pursuant to RAP 18.12 and adopt, in large part, the analysis set forth in the commissioner's ruling.

Walter took photographs of individuals under the age of 21 in front of a large mockup of the emblem of the state of Tennessee. The photographs were to be utilized in the preparation of counterfeit (facsimile) Tennessee drivers'licenses of those individuals. Walter delivered the negatives of the photographs to a commercial film processor to have prints made. The manager of the film lab processing the negatives contacted the police when she saw the negatives. The manager was concerned about potential liability for making prints from the negatives. In response to the contact from the film lab, a police detective requested copies of the prints. The film lab complied and provided the police with a set of the prints. The individuals in the photographs were subsequently identified and interviewed. Several of those individuals testified at trial regarding the nature of the photographs and their intended use in the preparation of counterfeit identification. The trial court denied the pretrial motion to suppress the photographs and any evidence derived through the use of the photographs.

At the conclusion of the trial, Walter moved to dismiss based upon the insufficiency of the evidence because no evidence was presented that Walter had supplied facsimile identification to anyone. The trial court denied the motion. Walter appealed his conviction and the RALJ court affirmed.

Walter has moved for discretionary review arguing that the trial court erred in concluding 1) that Walter did not have a reasonable expectation of privacy in the film that was dropped off at the processing laboratory, 2) that the manager of the processing laboratory did not act as an agent of the police and 3) that the State need not prove Walter supplied the facsimile identification to a person under the age of 21 in order to convict Walter of preparation of a facsimile driver's license. Because this case raises an issue of public interest that has not heretofore been addressed by the courts of this state, we grant discretionary review pursuant to RAP 2.3(d)(3) and affirm.

Motion to Suppress Evidence. Walter contends that the trial court's denial of his motion to suppress the photographs and the evidence derived from the photographs violated both the fourth amendment of the United States Constitution and article 1, § 7 of the Washington Constitution. The trial court did not err in denying the motion.

The Fourth Amendment prohibition against unreasonable searches and seizures protects persons only against governmental actions and not the actions of private citizens acting on their own initiative. State v. Dold, 44 Wash.App. 519, 521, 722 P.2d 1353 (1986). Constitutional protection may apply, however, if the private person functions as an agent or instrumentality of the State. State v. Clark, 48 Wash.App. 850, 856, 743 P.2d 822, review denied, 109 Wash.2d 1015 (1987). Critical factors in determining whether a private person acts as a government agent include whether the government knew of and acquiesced in the intrusive conduct and whether the party performing the search intended to assist law enforcement efforts or to further his own ends. Clark, 48 Wash.App. at 856, 743 P.2d 822. The burden to establish government involvement in a private search rests on the defendant. Clark, at 856, 743 P.2d 822. Additionally, the mere fact that there are contacts between the private person and police does not make that person an agent. Clark, at 856, 743 P.2d 822.

When the manager of the film lab initiated the contact with the police, she had already viewed the negatives. The manager responded to the request for copies of the prints by providing the copies to the police. The limited record suggests that the motivation of the manager was to further her own purpose of avoiding liability and not to act as an agent for police. There is no evidence of "encouragement" by the police that would render the film lab manager an agent. The film lab manager's contact with the police and her delivery of the prints all constitute private action which is not subject to the constitutional limitations on searches and seizures. See State v. Clark, supra (delivery of boxes of materials, including photographic negatives, by a friend of defendant to the police constituted a private search not subject to constitutional limitations upon searches and seizures).

Walter contends that because article 1, § 7 of the Washington State Constitution affords individuals greater protections than the Fourth Amendment his constitutional rights were nonetheless violated. However, Washington courts have clearly rejected this proposition in the area of private searches. Our state constitution ordinarily governs only the conduct of the state's own agents or those acting under color of state law. In re Teddington, 116 Wash.2d 761, 775, 808 P.2d 156 (1991). "Article 1, section 7 of the Washington Constitution affords no more protection from private searches than does the Fourth Amendment." Clark, 48 Wash.App. at 855, 743 P.2d 822. Dold, 44 Wash.App. at 525, 722 P.2d 1353; State v. Ludvik, 40 Wash.App. 257, 262, 698 P.2d 1064 (1985). Walter's contention that the court did not analyze this issue in detail in Clark and Dold does not change the express holding set forth in each of those cases. ¹ The delivery of the prints to the police by the film lab manager did not constitute a violation of Walter's state or federal constitutional rights.

Additionally, when Walter delivered the photographic negatives to the film processor, Walter no longer had a reasonable expectation of privacy in the photographs themselves or in the disclosure of the fact that the negatives existed. Any subjective expectation of privacy must be reasonable. See State v. White, 97 Wash.2d 92, 110, 640 P.2d 1061 (1982); State v. Simpson, 95 Wash.2d 170, 622 P.2d 1199 (1980). For purposes of determining whether a reasonable expectation of privacy exists under the state constitution, the inquiry is essentially the same as the Fourth Amendment analysis. Tukwila v. Nalder, 53 Wash.App. 746, 750, 770 P.2d 670 (1989); State v. Berber, 48 Wash.App. 583, 587-88, 740 P.2d 863, review denied, 109 Wash.2d 1014 (1987). Courts that have considered the search and seizure of film delivered to a film processor support the conclusion that Walter had no reasonable expectation of privacy. In People v. Hebel, 174 Ill.App.3d 1, 123 Ill.Dec. 592, 527 N.E.2d 1367 (1988), the court held:

In this case, the officers were called to Flash Foto by Kenneth Cannon, the manager, to view the photographs in question. Where Cannon, who was not a law enforcement officer, allowed them to view the photographs developed from negatives that had been given to him, no police intrusion requiring fourth amendment justification occurred. Defendant had no legitimate expectation of privacy in the photographs at that point in time and the officers, while viewing them, were in a location where they had a right to be.

Hebel, 123 Ill.Dec. at 607, 527 N.E.2d at 1382. In People v. Atencio, 780 P.2d 46 (Colo.App.1989), cert. denied, 790 P.2d 796 (1990), the court rejected the contention that the government had engaged in an unreasonable search under the Fourth Amendment of the United States Constitution or under the Colorado Constitution holding:

[W]e conclude that when the defendant delivered the unexposed film to a film processor with the request that a proof sheet of prints be prepared and returned to him, he forfeited any expectation of privacy in the film's contents.

Atencio, at 48. In United States v. Taylor, 515 F.Supp. 1321 (D.Me.1981), the court rejected the application of the Fourth Amendment to photographs that had been delivered for processing:

LaFrance voluntarily gave a film depicting apparent criminal activity to a commercial establishment for development. In so doing, he necessarily was aware that the employees of Sea Mist Photo would view the prints of that film. He could have had no reasonable expectation of privacy in information thus voluntarily conveyed and necessarily so exposed to the employees of a commercial establishment. (Citations omitted.)

Taylor, at 1326, affirmed, United States v. Taylor, 683 F.2d 18, 21, cert. denied, 459 U.S. 945, 103 S.Ct. 261, 74 L.Ed.2d 203 (1st Cir.1982); See also State v. Urban, 798 S.W.2d 507, 515 (Mo.App.1990).

Additionally, Walter's assertions that he had a contractual basis to anticipate that the confidentiality of his negatives would be maintained is of no consequence. When a defendant confides in a third person, the defendant takes the risk that the third person might convey the information to the government. In United States v. Taylor, supra, the court observed:

Moreover, in giving film depicting apparent criminal activity to a commercial establishment for development, LaFrance "[took] the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government." United States v. Miller, supra, 425 U.S. at 443, 96 S.Ct. [1619] at 1624 [48 L.Ed.2d 71 1976]. One participating in illegal activities cannot reasonably expect that disclosures made to third persons will enjoy constitutional protection simply because of...