State v. Young, 58399-4

• Court: United States State Supreme Court of Washington
• Citation: 123 Wn.2d 173,867 P.2d 593
• Decision Date: 10 February 1994
• Docket Number: No. 58399-4,58399-4
• Parties: , 62 USLW 2537 STATE of Washington, Respondent, v. Robert Alan YOUNG, Appellant.

Page 173

123 Wn.2d 173

867 P.2d 593, 62 USLW 2537

STATE of Washington, Respondent, v. Robert Alan YOUNG, Appellant.

No. 58399-4.

Supreme Court of Washington,

En Banc.

Feb. 10, 1994.

[867 P.2d 594]

Mestel & Muenster, Mark D. Mestel, John R. Muenster, Everett, for appellant

Seth Dawson, Pros. Atty., David F. Thiele, Deputy Pros. Atty., Everett, for respondent.

Catherine W. Smith, Seattle, Robert H. Whaley, Spokane, amicus curiae for appellant on behalf of Washington Ass'n of Criminal Defense Lawyers.

JOHNSON, Justice.

The defendant contends the warrantless infrared surveillance of his home constituted a search under article 1, section 7 of the Washington State Constitution and the fourth amendment to the United States Constitution. We agree, and reverse the defendant's conviction.

[867 P.2d 595] I

FACTS

On August 14, 1990, the Edmonds Police Department received an anonymous note in the mail. It stated that Mr.

Robert A. Young operated "a big marijuana grow" and contained Mr. Young's name, address and telephone number

Detective L. Paul Miller began an investigation. He confirmed the address and telephone number contained in the note belonged to Young. He checked for state and federal criminal histories on Young and found none. Detective Miller went to Young's address numerous times and observed the basement windows were consistently covered, although he never observed any bright lights in the home. Miller walked by the home on the public sidewalk, but did not detect any odor of marijuana.

Miller obtained the power consumption records for Young's home over the previous 6 years and found an abnormally high level of power consumption, and a marked increase in power consumption over the previous 3 years. Based on his prior experience in investigating indoor marijuana growing operations, he believed the power consumption increase to abnormally high levels at Young's home to be consistent with a marijuana growing operation.

A few days later, Detective Miller obtained assistance from United States Drug Enforcement Agency Special Agent Mark Hedman, who had been trained in the use of infrared thermal detection devices. An infrared device detects differences in the surface temperatures of targeted objects. Used at night, the device highlights manmade heat sources as a white color and cooler temperatures as a shade of gray. The device can detect a human form through an open window when the person is leaning against a curtain, and pressing the curtain between the window screen and his or her body. The device can also detect the warmth generated by a person leaning against a relatively thin barrier such as a plywood door.

At approximately 11:30 p.m. on August 21, 1990, Detective Miller and Agent Hedman went to Young's address and conducted a thermal surveillance of the home. The thermal detection device revealed what Hedman considered to be abnormal heating patterns. The foundation of the home was shown to be warm in certain spots, indicating the downstairs

was warmer than the upstairs. The device revealed the lower portion of the chimney was warm but the upper portion was cool, and one of the two chimney vents was warm and the other one cool. If there had been a fire in the fireplace the entire chimney would have been warm

Miller and Hedman checked the utility meter on the side of the home, and found it was also warm, indicating a load on the line. Miller and Hedman then used the thermal detection device to expose the heating patterns of other homes in the neighborhood, and compared those patterns with the heating pattern at Young's home. Hedman and Miller noted the pattern at Young's home differed from the other residences in the neighborhood. Miller concluded there was a marijuana growing operation in the home.

Based on an affidavit containing the facts described above, Detective Miller obtained a search warrant for Mr. Young's home on August 28, 1990. The warrant was executed and a quantity of marijuana was seized. Young was charged with possession of marijuana with intent to manufacture or deliver.

Prior to trial, Young moved to suppress the evidence and the motion was denied. The trial court found Young guilty on stipulated facts. We accepted Young's petition for direct review.

II

ANALYSIS

Article 1, Section 7 of the Washington State Constitution

The defendant argues the infrared surveillance of his home constituted an improper search under both the fourth amendment to the United States Constitution and article 1, section 7 of the Washington State Constitution. When violations of both the federal and Washington constitutions are alleged, it is appropriate to examine the state constitutional claim first. Seattle v. Mesiani, 110 Wash.2d 454, 456, 755 P.2d 775 (1988). The federal constitution provides the minimum protection afforded citizens against unreasonable searches by the government. State v. Chrisman, 100 Wash.2d 814, 817, 676 P.2d 419 (1984). Greater protection may be available under the Washington constitution. State v. White, 97 Wash.2d 92, 108-09, 640 P.2d 1061 (1982).

Whether the Washington constitution provides a level of protection different from the federal constitution in a given case is determined by reference to the six nonexclusive Gunwall factors. State v. Boland, 115 Wash.2d 571, 575, 800 P.2d 1112 (1990); State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986). The parties have adequately briefed the Gunwall factors, enabling us to consider an independent state constitutional analysis in this case. State v. Wethered, 110 Wash.2d 466, 472-73, 755 P.2d 797 (1988).

First, we examine the text of Const. art. 1, § 7, the relevant constitutional provision. This factor is especially significant in this case because article 1, section 7 contains two distinct objects of protection: a person's "private affairs", and a person's "home". Both are at issue in this case.

Next, we compare the text of Washington Const. art. 1, § 7 with its parallel provision of the federal constitution, and note there are substantial differences between the two. Gunwall, 106 Wash.2d at 65, 720 P.2d 808. Examination of the constitutional history of Const. art. 1, § 7, which represents the third Gunwall factor, reveals our State Constitutional Convention rejected the language of the federal constitution's Fourth Amendment. Instead, the Convention adopted the language of Const. art. 1, § 7, intentionally providing greater protection of individual rights. State v. Stroud, 106 Wash.2d 144, 148, 720 P.2d 436 (1986). In particular, our state constitution places a greater emphasis on the right to privacy. State v. Simpson, 95 Wash.2d 170, 178, 622 P.2d 1199 (1980).

Factor four requires us to examine preexisting state law to determine what kind of protection this state has historically accorded the subject at issue. Gunwall, 106 Wash.2d at 61-62, 720 P.2d 808. At the time our State Constitutional Convention adopted article 1, section 7, the federal constitution had been construed to provide expansive protection of privacy interests: "all invasions on the part of the government and its employes of the sanctity of a man's home and the privacies of life" are subject to federal constitutional protection. Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886). Nevertheless, our State Constitutional Convention determined to provide even more rigorous protection of privacy rights than those guaranteed by the Fourth Amendment. Stroud, 106 Wash.2d at 148, 720 P.2d 436. Unlike the Fourth Amendment, Const. art. 1, § 7 "clearly recognizes an individual's right to privacy with no express limitations". Simpson, 95 Wash.2d at 178, 622 P.2d 1199.

With this foundation, both this court and the Legislature decided an individual has a protected privacy interest in power usage records. In re Rosier, 105 Wash.2d 606, 717 P.2d 1353 (1986); State v. Maxwell, 114 Wash.2d 761, 791 P.2d 223 (1990); RCW 42.17.314. In Rosier, we recognized that the important policy of public disclosure of information relating to the performance of public officials cannot encroach upon the general personal privacy rights to which every citizen is entitled. Rosier, 105 Wash.2d at 611, 717 P.2d 1353. The Legislature confirmed the importance of this right by prohibiting the disclosure of a person's electrical consumption without a written assertion that a particular electrical utility customer is suspected of criminal activity. RCW 42.17.314. This historical context provides substantial support for an independent state constitutional analysis in this case.

The fifth Gunwall factor, structural differences between the state and federal constitutions, will always point toward pursuing an independent state constitutional analysis because the federal constitution is a grant of power from the states, while the state constitution represents a limitation of the State's power. State v. Smith, 117 Wash.2d 263, 286, 814 P.2d 652 (1991) (Utter, J., concurring).

Under the sixth factor we examine whether the matter is of particular state interest or local concern. State law enforcement measures are a matter of local concern. State v. Ortiz, 119 Wash.2d 294, 320, 831 P.2d 1060 (1992) (Johnson, J., dissenting). In addition, there is no strong need for national uniformity on infrared surveillance that outweighs the State's very strong interest in protecting an individual's right to privacy, particularly in the home.

A consideration of these factors guides us in deciding whether Const. art. 1, § 7 prohibits infrared surveillance of a home without a warrant.

Private Affairs

Const. art. 1, § 7 provides: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law". The constitution thus protects both a person's home and his or her private affairs from warrantless searches. The relevant inquiry under the Washington constitution in determining whether there has been a search is "whether the...