86 Wn. App. 431, STATE v. RAINFORD

[Nos. 19929-7-II; 21296-0-II. Division Two. May 16, 1997.]

THE STATE OF WASHINGTON, Respondent, v. DAVID LLOYD RAINFORD, Appellant.

In the Matter of the Personal Restraint of DAVID LLOYD RAINFORD, Petitioner.

[1] Appeal - Findings and Conclusions - Review - Disputed Evidence. An appellate court will not disturb findings of fact and conclusions of law supported by substantial, although disputed, evidence.

[2] Searches and Seizures - Constitutional Provisions - Federal Constitution - In General. The Fourth Amendment provides the minimum protection against unreasonable searches by the government.

[3] Constitutional Law - Construction - State and Federal Provisions - Independent State Interpretation - Factors. A court analyzes the following six nonexclusive criteria to determine if the state constitution should be interpreted as providing greater protection than the federal constitution in a particular case: (1) the textual language of the state constitution, (2) differences in the text of the state and federal constitutions, (3) the history of the state constitution and the common law, (4) preexisting state law, (5) structural differences between the state and federal constitutions, and (6) whether the subject matter is of particular state interest or local concern.

[4] Constitutional Law - Construction - State and Federal Provisions - Independent State Interpretation - Argument - Necessity. A state constitutional provision will not be construed as providing greater protection than its federal counterpart unless

 432    STATE v. RAINFORD    May 1997 
86 Wn. App. 431, 936 P.2d 1210

the nonexclusive factors of State v. Gunwall, 106 Wn.2d 54 (1986), have been adequately briefed.

[5] Constitutional Law - Construction - State and Federal Provisions - Priority of Consideration. When a violation of both the federal and state constitutions is alleged, it is usually appropriate to examine the state constitutional claim first.

[6] Constitutional Law - Construction - State and Federal Provisions - Independent State Interpretation - Factors - Policy Considerations. The state constitution will not be interpreted as providing greater protection than the federal constitution unless state policy considerations weigh in favor of greater protection in the particular situation presented by the case.

[7] Searches and Seizures - Prisons - Search for Contraband - "Dry Cell" Search - Validity - Reasonableness - Balancing Test. Under both the Fourth Amendment and CONST. art. I, 7, a "dry cell" search may be conducted of a prison inmate if prison authorities have a reasonable suspicion of unlawful activity and the search is conducted in a nonabusive fashion. The reasonableness of the search under the Fourth Amendment is determined by balancing the need for the search against the invasion of personal rights the search entails, taking into consideration the scope of the intrusion, the manner in which it is conducted, the justification for initiating it, and the place where it is conducted.

[8] Searches and Seizures - Prisons - Search for Contraband - "Dry Cell" Search - Validity - Protection of Inmates and Employees. The protection of prison inmates and prison employees by preventing the introduction into the prison of drugs and contraband constitutes a reasonable justification for conducting a "dry cell" search.

[9] Searches and Seizures - Prisons - Search for Contraband -"Dry Cell" Search - Failure To Follow Internal Procedures. -The due process rights of a prison inmate who is subjected to a "dry cell" search by prison authorities are not violated by the prison's failure to follow its internal procedures in conducting the search if the search is supported by a reasonable articulable suspicion of unlawful activity.

[10] Criminal Law - Crimes - Discretion To Charge - General and Specific Crimes - Concurrent Statutes - Different Degrees of Crime - Effect. For purposes of determining if a statute defining a general crime is concurrent with a statute defining a more specific crime, the different degrees of the general crime are treated as separate crimes.

[11] Criminal Law - Crimes - Discretion To Charge - General

 May 1997     STATE v. RAINFORD    433 
86 Wn. App. 431, 936 P.2d 1210

and Specific Crimes - Different Elements. When the elements of a general crime are not identical to those of a more specific crime, the crimes are not concurrent and a criminal defendant may be charged with either of them.

Nature of Action: Prosecution for possession of a controlled substance. The controlled substance was found after the defendant, an inmate at a state correctional facility, was subjected to a "dry cell" search.

Superior Court: The Superior Court for Clallam County, No. 95-1-00154-7, George L. Wood, J., entered a judgment of guilty on September 1, 1995. The defendant later sought relief from personal restraint.

Court of Appeals: Holding that the dry cell search was properly based on a reasonable articulable suspicion of criminal activity, that the search was reasonable under both the state and federal constitutions, that the defendant's due process rights were not violated by the correctional facility's failure to follow its own procedures in conducting the search, and that the defendant was not improperly charged, the court affirms the judgment and denies the petition.

John F. Hayden for appellant/petitioner (appointed counsel for appeal and the petition for personal restraint).

David H. Bruneau, Prosecuting Attorney, and Rachel A. Brooks and C. Danny Clem, Deputies, for respondent.

[As amended by orders of the Court of Appeals May 23 and June 20, 1997.]

BRIDGEWATER, A.C.J. - David L. Rainford appeals his conviction for possession of a controlled substance, heroin, under RCW 69.50.401(d). We hold that reasonable suspicion is required to conduct a "dry cell" search and that

 434    STATE v. RAINFORD    May 1997 
86 Wn. App. 431, 936 P.2d 1210

Rainford's constitutional rights were not violated even though Clallam Bay Corrections Center did not follow exactly their procedure for a dry cell search. Further, Rainford's conviction and enhancement for possession within a correctional facility do not violate equal protection because a statute specific to inmates' possession of controlled substances is not concurrent with the general statute prohibiting possession, and the prosecuting attorney had discretion to charge under either statute. We affirm.

Clallam Bay Corrections Center authorities initiated an investigation into the possibility that drugs were being introduced into the facility when a part of a plastic baggie was found in the visitor's toilet, which prison officials believed was consistent with a container that would be used to secrete drugs within the body. Prison investigator Hanson investigated the three prisoners who had visitors that day and focused on inmate Rainford because he was the only one incarcerated for drug offenses. Rainford's wife was a known drug addict, and his cellmate, Shornhorst, was suspected of smuggling drugs. Hanson examined letters and an audio tape from Rainford and Shornhorst to Mrs. Rainford and determined that they showed that the Rainfords might be involved in smuggling drugs into the prison by secreting them within their bodies. The investigators summarized this information for the Superintendent, and he authorized the guards to conduct a dry cell search after Rainford's next visit with his wife.1 A dry cell search was initiated and prison officials recovered two balloons filled with heroin from Rainford's feces. Rainford was convicted of possession of a controlled substance under RCW 69.50.401(d). The standard sentence was enhanced by 12 months under former RCW 9.94A.310(4)(c) (1994)


1 A "dry cell search" or "dry cell watch" is conducted by placing the inmate in a private room under 24-hour observation until he. has three consecutive normal bowel movements. The officers then examine the feces for any sign of drugs.


 May 1997     STATE v. RAINFORD    435 
86 Wn. App. 431, 936 P.2d 1210

because the offense occurred while the offender was in a state correctional facility

I

Rainford contends that the dry cell search violated his Fourth Amendment and Washington Constitution article I, section 7 rights. Rainford makes two separate arguments: (1) that there was no reasonable suspicion for the search, and (2) that the prison officials violated his constitutional rights by failing to follow their own procedure for dry cell searches.

A

[1] The trial court found that the prison had "a reasonable suspicion . . . that the Defendant had contraband within his body after being visited by his wife." Where findings of fact and conclusions of law are supported by substantial but disputed evidence, an appellate court will not disturb the trial court's ruling. State v. Smith, 84 Wn.2d 498, 527 P.2d 674 (1974); State v. Chapman, 84 Wn.2d 373, 526 P.2d 64 (1974). See also House v. Erwin, 83 Wn.2d 898, 524 P.2d 911 (1974). The State argues that there was reasonable articulable suspicion based upon the following facts: a piece of a baggie was found in the visitor's toilet on a day when Rainford's wife was visiting; Rainford was incarcerated for drug offenses; Mrs. Rainford was a known drug addict; and letters and a tape from Rainford to his wife indicated Rainford's drug use and contained covert references to drug smuggling. These facts are sufficient to form a reasonable articulable suspicion that Rainford would have drugs within his person after his wife's visit.

[2-5] Rainford argues, however, that greater certainty is required under article I, section 7. The federal constitution provides the minimum protection afforded citizens against unreasonable searches by the government. State v. Chrisman, 100 Wn.2d 814, 817, 676 P.2d 419 (1984).

 436    STATE v. RAINFORD    May 1997 
86 Wn. App. 431, 936 P.2d 1210

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.2 State v. Boland, 115 Wn.2d 571, 575, 800 P.2d 1112 (1990); State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986). The parties must adequately brief the Gunwall factors to enable the reviewing court to consider an independent state constitutional analysis in the case. State v. Wethered, 110 Wn.2d 466, 472-73, 755 P.2d 797 (1988). When violations of both the federal and Washington constitutions are alleged, it is usually appropriate to examine the state constitutional claim first. Seattle v. Mesiani, 110 Wn.2d 454, 456, 755 P.2d 775 (1988). However, our analysis begins with federal law only to place the state law in context.

[6-8] Under the Fourth Amendment, while an inmate is "'not wholly stripped of constitutional protections when (they are) imprisoned for crime,'" many of the inmate's rights and privileges are subject to limitation because institutional goals and policies take precedence. State v. Hartzog, 96 Wn.2d 383, 391, 635 P.2d 694 (1981) (quoting Wolff v. McDonnell, 418 U.S. 539, 555-56, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974); see also Bell v. Wolfish, 441 U.S. 520, 545-46, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979). In evaluating whether body cavity searches violate the Fourth Amendment, the Supreme Court employs a reasonableness test, stating that: "In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Bell,


2 The following factors are to be considered in determining if the state constitution provides greater protection: (1) the textual language of the state constitution; (2) significant differences in the texts of parallel provisions of the federal and state constitutions; (3) state constitutional and common law history; (4) preexisting state law; (5) differences in structure between the federal and state constitutions; and (6) matters of particular stete interest or local concern. State v. Gunwall, 106 Wn.2d 54, 61-62, 720 P.2d 808, 76 A.L.R.4th 517 (1986).


 May 1997     STATE v. RAINFORD    437 
86 Wn. App. 431, 936 P.2d 1210

441 U.S. at 559. In Bell, the Court found that visual body cavity inspections could be conducted on less than probable cause if the search is reasonable and not conducted in an abusive fashion. Bell, 441 U.S. at 558-60. The Bell Court does not state what level of cause is required, but the decision validated a practice of visual body cavity search of all inmates after contact visits. Reasonable suspicion is sufficient in a prison setting to protect the inmate's reasonable expectation of privacy under the Fourth Amendment, so long as the search is not conducted in an abusive fashion. The dry cell search here passes the Bell balancing test. The justification for the search is to protect prison inmates and employees by preventing the introduction of drugs and contraband into the prison. This justification was validated in Bell. Furthermore, the search was conducted in the least offensive manner possible; no inmates or unnecessary guards were allowed to watch Rainford while he was contained, and he has not alleged that he was subjected to unnecessary humiliation. While a dry cell search is in some ways more intrusive than a visual body cavity search because it is of a longer duration, it is also less intrusive because there is no physical probing of the person. Reasonable suspicion is adequate cause to initiate a dry cell search.

Rainford argues that under the Washington Constitution, article I, section 7, he is entitled to more protection for dry cell searches; but in so arguing, he fails to cite to any cases giving prisoners greater protection under the state constitution. Rainford discusses the Gunwall factors only in the most general sense; his references are to cases discussing the generally accepted concept that the language in article I, section 7 differs from the Fourth Amendment such that it may extend broader protection, but that otherwise do not apply to this fact pattern. See, e.g., Gunwall, 106 Wn.2d 54. However, the Gunwall analysis does not end with a textual comparison. Rainford must show state policy considerations that would lead the court to extend greater protection in the particular situation presented by this case, which he does not do. Rainford has

 438    STATE v. RAINFORD    May 1997 
86 Wn. App. 431, 936 P.2d 1210

failed to show by statute or case law that greater protection is extended to prisoners under article I, section 7 than under the Fourth Amendment. In fact, Rainford has not cited to any cases that analyze a prisoner's expectation of privacy under the Washington Constitution.

Washington courts have held that an inmate's expectation of privacy is necessarily lowered while in custody and that warrantless searches may be conducted if reasonable. State v. Campbell, 103 Wn.2d 1, 23, 691 P.2d 929 (1984). Even probationers and parolees have a diminished right of privacy, permitting reasonable warrantless searches. See, e.g., State v. Patterson, 51 Wn. App. 202, 204, 752 P.2d 945 (1988). Washington allows routine pat-down searches of prisoners even without articulable suspicion. See State v. Baker, 28 Wn. App. 423, 623 P.2d 1172 (1981). Thus, while these facts present an issue of first impression under the Washington Constitution, we find that a dry cell search initiated based on reasonable articulable suspicion, conducted in a manner that is not abusive, is reasonable under article I, section 7. Reasonable suspicion is all that is required under either the fourth amendment to the United States Constitution or article I, section 7 of the Washington Constitution for a dry cell search. The dry cell search in this case was based on a reasonable suspicion and was not conducted in an abusive fashion. This dry cell search was, therefore, constitutional.

B

Rainford also argues that prison authorities did not follow their regulations in that they failed to record specific evidence creating reasonable suspicion, failed to respond to his comments on the reverse side of the authorization form, failed to give him the opportunity to voluntarily retrieve the drugs, and failed to conduct a medical

 May 1997     STATE v. RAINFORD    439 
86 Wn. App. 431, 936 P.2d 1210

examination of him before the dry cell search.3 While Rainford has not specifically framed his argument as a due process problem, he cites two due process cases: United States v. Smith, 774 F.2d 1005 (10th Cir. 1985) and United States v. Caldwell, 750 F.2d 341 (5th Cir. 1984).4 The trial court also addressed Rainford's argument on due process grounds, finding that minimum standards of due process were followed.

[9] Rainford has not cited to any Washington cases holding that a prison's failure to follow procedure is a per se violation of the due process clause or any other constitutional provision. Moreover, the two out-of-state cases he does cite, Smith and Caldwell, stand for the rule that the prison authorities violate due process when they fail to follow the administrative rule requiring reasonable suspicion for dry cell searches. There was reasonable suspicion in this case. Neither case uses technical violations of policy to invalidate a dry cell search. The


3 The internal policies applicable to Clallam Bay Corrections Center provided that:

(1) Before an offender is placed on a dry cell search, an authorization on DOC Form 21-408 (REV. 3/91) Dry Cell Search (Attachment A), must be completed. The form is to record specific evidence relied upon by the Superintendent/Acting Superintendent to determine the existence of reasonable suspicion.

(2) Within one hour after the offender is initially placed on a dry-cell search, a copy of DOC 21-408 (with all confidential information which could lead to the identification of informant sources removed/blacked out) will be given to the offender. If the offender wishes to request a review of the dry-cell placement, this must be done in writing on the reverse side of DOC 21-408 within eight hours of the initial placement. The offender's completed response then will be evaluated by the Superintendent/Acting Superintendent.

The Superintendent/Acting Superintendent's review must be attested to by checking either the "retain on dry cell search" or "release from dry cell search" box on the reverse side of the DOC 21-408, along with a dated signature. An in-person hearing need not be held . . . .

The instructions also state that the offender must be afforded the opportunity to voluntarily retrieve the contraband, and the offender must be examined by a member of the medical staff to assure that the dry cell search will not physically harm the offender.

4 Failure by the warden in the instant case to comply with [C.F.R. 552.11(c)] . . . is violative of due process." Smith, 774 F.2d at 1006 (citation omitted).


 440    STATE v. RAINFORD    May 1997 
86 Wn. App. 431, 936 P.2d 1210

violations Rainford alleges are all highly technical violations that do not violate due process. While prison officials did not list on their internal form all the facts amounting to reasonable suspicion, these facts were related to the Superintendent, and he found reasonable suspicion. Thus, this error was merely technical. Rainford was then given the form and returned it with his comment that the process was humiliating, but he did not request review by the Superintendent. Thus, there was no error. Rainford's other claimed errors in procedure are likewise insufficient for a claim that his due process rights were violated.5

II

Rainford argues in his Personal Restraint Petition, consolidated herein with his appeal, that his conviction was unlawful because he should have been charged under RCW 9.94.041, a statute specific to inmates, rather than RCW 69.50.401.

If a general and a special statute are concurrent, the accused can be charged only under the special statute. State v. Shriner, 101 Wn.2d 576, 580, 681 P.2d 237 (1984). Criminal statutes are considered concurrent if a general statute is violated whenever a special statute is violated, regardless of whether the special statute may contain additional elements not contained in the general statute. Id. In other words, "the special statute will supersede the general only '[s]o long as it is not possible to commit the special crime without also committing the general crime'." State v. Williams, 62 Wn. App. 748, 753-54, 815 P.2d 825


5 Rainford challenges the prison's failure to perform a medical examination on him before the search, as set forth in the regulations. But Rainford did not have any medical problems during the dry cell search, and the mere lack of an examination is not a circumstance so extreme as to place the whole procedure in question, so this error is also harmless. Nor was there a constitutional violation in the alleged failure to give Rainford the opportunity to voluntarily surrender the drugs. There is no evidence that this opportunity was not given, only that there was no documentation showing that Rainford was given the opportunity to surrender the drugs and none of the officers specifically remembered one way or the other. The regulations do not require documentation. Thus, neither of these errors is of constitutional dimension.


 May 1997     STATE v. RAINFORD    441 
86 Wn. App. 431, 936 P.2d 1210

(1991) (quoting Shriner, 101 Wn.2d at 583). Violation of this rule can result in an equal protection violation "because the State, by selecting the crime charged, can obtain varying degrees of punishment while proving identical criminal elements." State v. Hupe, 50 Wn. App. 277, 280, 748 P.2d 263, review denied, 110 Wn.2d 1019 (1988).

Rainford was charged under RCW 69.50.401(d), which states in relevant part: "[i]t is unlawful for any person to possess a controlled substance." Former RCW 9.94.041 (1979) stated that any inmate of a correctional institution of this state "who, without authorization, while in such penal institution . . . knowingly possesses or carries upon his or her person or has under his or her control any narcotic drug or controlled substance as defined in chapter 69.50 RCW is guilty of a class C felony."6 Under RCW 69.50.401(d), possession of marijuana violates that statute only when it is in an amount greater than 40 grams. However, possession of any amount of marijuana is a violation of RCW 9.94.041. Thus, it is possible to violate RCW 9.94.041 without violating RCW 69.50.401(d).

[10] For purposes of this analysis, we treat section (d) as separate from section (e). In State v. Jendrey, 46 Wn. App. 379, 730 P.2d 1374 (1986), this court held that different degrees of a crime are treated differently in the concurrency analysis. The court held that while criminal possession of rental equipment, RCW 9A.56.095, is concurrent with first degree theft, RCW 9A.56.030, it is not concurrent with second degree theft, RCW 9A.56.040, because criminal possession of rental equipment only applies to equipment with a value of more than $1,500, like first degree theft, while second degree theft applies only to property with a value of $250 to $1,500. Id. This reasoning seems equally applicable to sections (d) and (e) of RCW 69.50.401; like degrees of theft, these sections define by quantity conduct to which different degrees of punishment


6 Curiously, RCW 9:94.041 is an unranked felony under the Sentencing Reform Act of 1981 and is not subject to enhancement for possession within a correctional facility under RCW 9.94A.31O(5)(c).


 442    STATE v. TAYLOR    May 1997 
86 Wn. App. 442, 936 P.2d 1218

will be applied. Section (d) is a felony, while section (e) is a misdemeanor. Thus, the two sections are degrees of the same crime and are analyzed separately under concurrency, analysis.

[11] Therefore, because it is "possible to commit the special crime without also committing the general crime," these two statutes are not concurrent. This anomalous result, where a specific statute results in less punishment and is not concurrent with the general, happens because of legislative inadvertence. We are critical of this result because it is illogical with what we would perceive as an appropriate legislative scheme--that is, having a special statute dealing with prisoners who are in possession of controlled substances in prisons.7 But correction rests with the Legislature, not with the court.

Because the statutes are not concurrent, the prosecuting attorney has the discretion to charge either crime, and the fact that the sentences are disparate is not of constitutional moment.8

We affirm the conviction and dismiss the Personal Restraint Petition.

MORGAN and ARMSTRONG, JJ., concur.

Review denied at 133 Wn.2d 1019 (1997).


7 Correction also needs to be made with regard to the enhancement statute, RCW 9.94A.310(5)(c), and to the ranking of RCW 9.94.041 under the Sentencing Reform Act of 1981.

8 Rainford would have received 12-months' incarceration as violation of the unranked felony RCW 9.94.041; but he received 41 months for violation of RCW 69.60.401(d) with a 12-month enhancement for violation of RCW 9.94A.310(5)(c), for a total of 53 months.