[No. 79947-4. En Banc.]
Argued January 24, 2008. Decided June 5, 2008.
[1] Criminal Law — Evidence — Suppression — Findings of Fact — Failure To Assign Error — Effect. Unchallenged findings of fact entered by a trial court following an evidence suppression hearing are verities on appeal. [2] Criminal Law — Evidence — Suppression — Conclusions of Law — Review — Standard of Review. Conclusions of law entered by a trial court in support of a ruling on a motion to suppress evidence are reviewed de novo. [3] Searches and Seizures — Constitutional Provisions — State and Federal Provisions — Scope of Prohibition. Although Const. art. I, § 7 and the Fourth Amendment protect similar interests, the protections guaranteed by the state provision are qualitatively different from those provided by the federal provision. The Fourth Amendment protects only against "unreasonable searches" by the State, leaving individuals subject to any manner of warrantless, but reasonable, searches. By contrast, Const. art. I, § 7 is unconcerned with the reasonableness of the search but, instead, requires a warrant before a search, reasonable or not. This is because, unlike the Fourth Amendment, the word "reasonable" does not appear in any form in the text of Const. art. I, § 7. [4] Searches and Seizures — Warrantless Search — Validity — Warrant Exception — Necessity. A warrantless search violates Const. art. I, § 7 if it is not justified by a judicially recognized exception to the warrant requirement. Exceptions to the warrant requirement are narrowly drawn. [5] Constitutional Law — Right to Privacy — State Guaranty — Invasion of Home — Degree of Protection. The protection of Const. art. I, § 7 is at its apex when the invasion of a person's home is involved. [6] Searches and Seizures — Warrantless Search — Validity — Burden of Proof — In General. The State bears the heavy burden of proving that a warrantless search is justified under a recognized exception to the constitutional requirement of a search warrant. [7] Searches and Seizures — Private Search — Subsequent State Search — Validity — Federal Constitution. Under the private search doctrine, the Fourth Amendment is not violated by a warrantless search carried out by a state actor if the search does not expand the scope of a previously conducted search by a private person. Underlying the doctrine is the rationale that an individual's reasonable expectation of privacy is destroyed by the private actor's search. [8] Searches and Seizures — Warrantless Search — Validity — Reasonableness — In General. The Fourth Amendment is not violated by a warrantless search that does not violate a person's reasonable expectation of privacy. [9] Constitutional Law — Right to Privacy — State and Federal Provisions — Greater State Protection — In General. Const. art. I, § 7 provides greater protection from state action than does the Fourth Amendment. [10] Constitutional Law — Right to Privacy — State Guaranty — Contrast to Federal Constitution. An analysis into the validity of a search under Const. art. I, § 7 begins with a determination of whether the State intruded into a person's private affairs. Unlike the Fourth Amendment and its reasonability determination, the protection of Const. art. I, § 7 is not confined to the subjective privacy expectations of modern citizens. Instead, Const. art. I, § 7 protects those privacy interests that Washington citizens have held, and should be entitled to hold, safe from governmental trespass without a warrant. [11] Searches and Seizures — Private Search — Subsequent State Search — Validity — State Constitution. The private search doctrine is not a valid exception to the warrant requirement of Const. art. I, § 7. The privacy interest protected by Const. art. I, § 7 survives the exposure that occurs when it is intruded upon by a private actor; i.e., an individual's privacy interest is not extinguished simply because a private actor has actually intruded upon or is likely to intrude upon the interest. [12] Searches and Seizures — Consent — Joint Control — Common Authority — What Constitutes — Effect. A person does not have actual authority to consent to a warrantless search of a premises unless the person has free access to the shared area of the premises and has the authority to invite others into the shared area. Such access must be significant enough that it can be concluded that the nonconsenting co-occupant assumed the risk that the consenting co-occupant would invite others into the shared area. [13] Searches and Seizures — Consent — Joint Control — Contractor — Authority To Consent. A contractor who is hired to perform work in a private premises does not have the authority to consent to a warrantless search of the premises. An individual does not assume the risk that a contractor would invite others into the premises simply by requesting the contractor to work therein. [14] Searches and Seizures — Consent — Authority To Consent — Scope — Determination — Police Officer's Subjective Belief. A police officer's reasonable belief that a person had the authority to consent to a search cannot be used to validate a warrantless search under Const. art. I, § 7. [15] Searches and Seizures — Consent — Authority To Consent — Apparent Authority — Validity — State Constitution. Apparent authority to consent to a warrantless search is insufficient to validate a search under Const. art. I, § 7. [16] Searches and Seizures — Exclusionary Rule — In General. The exclusionary rule mandates the suppression of evidence discovered as the result of an unconstitutional search or seizure. [17] Searches and Seizures — Fruit of Unlawful Search or Seizure — Exclusionary Rule — In General. Evidence that would not have been discovered but for the discovery of evidence in an unconstitutional search or seizure must be suppressed as fruit of the poisonous tree. [18] Searches and Seizures — Warrant — Affidavit — Sufficiency — Unlawfully Obtained Information — Effect. In determining whether probable cause exists to issue a search warrant, a magistrate may not rely upon information contained in the affidavit of probable cause that was obtained in the course of an unconstitutional search. [19] Searches and Seizures — Warrant — Affidavit — Misstatement or Misconduct — Partial Invalidity — Effect. After ruling that certain information should not have been considered by a magistrate in issuing a search warrant, an appellate court determines whether the untainted evidence in the search warrant affidavit was sufficient to establish probable cause to search. If the warrant, viewed in this light, fails for lack of probable cause, the evidence seized under the warrant must be suppressed. MADSEN and C. JOHNSON, JJ., concur by separate opinion. Nature of Action: Prosecution for two counts of unlawful manufacture of a controlled substance within 1,000 feet of a school bus route stop. The charges arose from the discovery of evidence at two separate residences. Police officers conducted a warrantless search of the first resi-dence, where the defendant and two other men resided, after a repairman hired to perform work at the residence called the police and reported seeing the remains of a marijuana grow operation in the house. When the police arrived, the repairman let them into the house and showed them what he had seen. The police then obtained a telephonic search warrant to search the rest of the house. Based on evidence discovered in the residence, the police obtained a search warrant to search a second residence connected to the three men. The police discovered an active marijuana grow operation in the second residence. Superior Court: After denying the defendant's motion to suppress the evidence, the Superior Court for Thurston County, No. 03-1-01636-9, Richard A. Strophy, J., on April 12, 2005, entered a judgment of guilty to both counts. Court of Appeals: The court affirmed the judgment by an unpublished opinion noted at 137 Wn. App. 1019 (2007). Supreme Court: Holding that the private search doctrine is contrary to the Washington Constitution and is inapplicable to warrantless searches in Washington, that the repairman lacked the authority to consent to the initial warrantless search, that the evidence seized during the warrantless search must be suppressed, that the search warrants granted for both residences were invalid, and that all evidence seized pursuant to those search warrants must be suppressed, the court reverses the judgment and remands the case for further proceedings. Clifford F. Cordes- (of Cordes Brandt, PLLC), for petitioner. Edward G. Holm-, Prosecuting Attorney, and David H. Bruneau-, Deputy, for respondent. En Banc ¶1 SANDERS, J. — On August 5, 2003, a repairman saw what he believed to be the remains of a marijuana growing operation in a Lacey house and called the police. When the police arrived the repairman let them into the house to show them what he had seen. The police then sought, and were granted, a telephonic warrant to search the rest of the house. In the course of the search and subsequent investigation, the police found an active marijuana growing operation in a second house. After a stipulated facts trial, Jason Eisfeldt was found guilty of two counts of manufacturing a controlled substance. The Court of Appeals affirmed. We granted review and reverse. FACTS AND PROCEDURAL HISTORY ¶2 In January 2003, James Wege leased a house in Lacey, Washington (the Lacey house), where Eisfeldt lived. ¶3 Detectives Stahle and Elkins, of the Thurston County Narcotics Task Force (TNT), were sent to the Lacey house to meet Piper. When they arrived Piper brought the detectives inside the house and showed them the spill in the living room. Piper then led the detectives through the living room and into the attached garage. Once they were in the garage, the detectives saw the foam sealant around the garage door and the heavy duty wiring. The police looked inside the garbage bag and saw a bucket containing some dried marijuana "shake" and Mylar. At this point the detectives suspended their search and sought a warrant. ¶4 Detective Elkins obtained a telephonic search warrant for the Lacey house based largely on his observations during this search of the Lacey house. The TNT executed the search warrant and gathered evidence against Wege, Eisfeldt, and Ben Charles. Following this second search Elkins believed, based on his experience and training, the house had contained a marijuana grow operation. On August 27, 2003 based on the evidence seized in the Lacey house, Detective Elkins sought, and was granted, a search warrant for a second residence, this one in Olympia (the Olympia house). When the police served this warrant, they discovered an active marijuana growing operation. Eventually, Wege, Charles, and Eisfeldt admitted to growing marijuana in both the Lacey and Olympia houses. ¶5 Eisfeldt was charged with two counts of unlawful manufacture of a controlled substance with a school bus enhancement. Arguing the searches were unconstitutional, Eisfeldt sought to suppress the evidence collected during the searches of the Lacey and Olympia houses. The trial court denied Eisfeldt's motion. Following the denial of his suppression motion, Eisfeldt agreed to a stipulated facts trial. The trial court found Eisfeldt guilty of both counts. ¶6 Eisfeldt timely appealed the order denying his suppression motion to the Court of Appeals. He claimed the warrantless search of the Lacey house by the police violated the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution. He also claimed, even if the Lacey search was appropriate, the warrant issued for the Olympia house was not based on probable cause because there was an insufficient nexus to demonstrate a likelihood of illegal activity at the Olympia house. The Court of Appeals held no warrant was required for the initial police search because it did not go beyond the scope of the private search. The Court of Appeals further held the affidavit supporting the warrant for the Olympia house established a sufficient nexus to establish probable cause. STANDARD OF REVIEW ANALYSIS ¶9 By contrast article I, section 7 is unconcerned with the reasonableness of the search, but instead requires a warrant before any search, reasonable or not. CONST. art. I, § 7 ("No person shall be disturbed in his private affairs, or his home invaded, without authority of law."). This is because "[u]nlike in the Fourth Amendment, the word 'reasonable' does not appear in any form in the text of article I, section 7 of the Washington Constitution." State v. Morse, 156 Wn.2d 1, 9, 123 P.3d 832 (2005). Understanding this significant difference between the Fourth Amendment and article I, section 7 is vital to properly analyze the legality of any search in Washington. (1) The warrantless search of the Lacey house by the police was contrary to article I, section 7 of the Washington Constitution (a) The private search doctrine is contrary to the Washington Constitution ¶12 Under the private search doctrine a warrantless search by a state actor does not offend the Fourth Amendment if the search does not expand the scope of the private search. The doctrine was first espoused in Walter v. United States, 447 U.S. 649, 100 S. Ct. 2395, 65 L. Ed. 2d 410 (1980), and later applied in Jacobsen, 466 U.S. 109, to sanction a warrantless search by state actors. Underlying this doctrine is the rationale that an individual's reasonable expectation of privacy is destroyed when the private actor conducts his search. Id. at 119. Where the State does not violate an individual's reasonable expectation of privacy, the Fourth Amendment is not offended. Id. ¶13 Here article I, section 7 provides greater protection from state action than does the Fourth Amendment. State v. Simpson, 95 Wn.2d 170, 178, 622 P.2d 1199 (1980). ¶14 We have repeatedly held the privacy protected by article I, section 7 survived where the reasonable expectation of privacy under the Fourth Amendment was destroyed. For example in Boland, 115 Wn.2d at 578, this court found a warrantless search of an individual's garbage violated article I, section 7, even though "it may be true an expectation that [others] will not sift through one's garbage is unreasonable . . . ." By contrast, the United States Supreme Court previously held individuals had no reasonable expectation of privacy in their garbage, and therefore there was no protection under the Fourth Amendment. California v. Greenwood, 486 U.S. 35, 108 S. Ct. 1625, 100 L. Ed. 2d 30 (1988). ¶15 We held the same in State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986). In Gunwall, 106 Wn.2d at 55, we considered whether the State could collect, without a warrant, phone numbers dialed by an individual. United States Supreme Court precedent holds an individual's reasonable expectation of privacy is destroyed when he dials a phone number because he "had to convey that number to the telephone company . . . ." Smith v. Maryland, 442 U.S. 735, 743-44, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979). But we held the individual privacy interest, no matter how unreasonably held, survives the conveyance of the phone number to the phone company and, as such, article I, section 7 prohibits collecting these numbers without a warrant. Gunwall, 106 Wn.2d at 69. ¶16 The individual's privacy interest protected by article I, section 7 survives the exposure that occurs when it is intruded upon by a private actor. Unlike the reasonable expectation of privacy protected by the Fourth Amendment, the individual's privacy interest is not extinguished simply because a private actor has actually intruded upon, ¶17 We therefore reject the private search doctrine and adopt a bright line rule holding it inapplicable under article I, section 7 of the Washington Constitution. (b) The police did not receive consent to search the Lacey house (2) The evidence found at the Lacey and Olympia houses was obtained unconstitutionally and must be suppressed ¶23 Here the majority of the evidence supporting the warrant for the Lacey house was obtained during the unconstitutional, warrantless search of the Lacey house. As the State conceded at argument, excluding the improperly gathered evidence renders the Lacey warrant invalid for lack of probable cause. This requires the exclusion of the evidence collected pursuant to the Lacey house search warrant as fruit of the poisonous tree. ¶24 In turn the evidence collected pursuant to the Olympia house search warrant must also be excluded as fruit of the poisonous tree. The search warrant was based largely on evidence seized at the Lacey house during both the warranted and warrantless searches. When this evidence is excised from the affidavit supporting the Olympia house search warrant, it is insufficient to support probable cause for its issuance. The evidence collected at the Olympia house must also be excluded as fruit of the poisonous tree. ¶25 We hold the private search doctrine is contrary to article I, section 7 and is inapplicable to warrantless searches in Washington. We also hold Piper lacked authority to consent to the search. As an unconstitutional search, the evidence secured by the detectives during the warrantless searches must be suppressed. Finally we hold the search warrants issued for both the Lacey and Olympia houses were invalid and, accordingly, suppress all evidence seized pursuant to those warrants. We reverse Jason Eisfeldt's conviction and remand the case for further proceedings consistent with this opinion. ALEXANDER, C.J., and CHAMBERS, OWENS, FAIRHURST, J.M. JOHNSON, and STEPHENS, JJ., concur. ¶26 MADSEN, J. (concurring in result) — Although I agree with the result, I disagree with the majority's rejection of the "private search" doctrine. Indeed, evidence from private searches commonly form the evidence used to prosecute criminal conduct in this state. To reject the doctrine in all cases, as the majority does, is unwarranted by our case law and by common sense. I respectfully dissent. ¶27 The private search doctrine provides that where a private actor conducts a search, the State may conduct a warrantless search if the State does not expand the scope of the private search. Walter v. United States, 447 U.S. 649, 100 S. Ct. 2395, 65 L. Ed. 2d 410 (1980). First espoused in Walter, the doctrine was later applied in United States v. Jacobsen, 466 U.S. 109, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984), to uphold a warrantless search. Underlying this doctrine is the premise that an individual's expectation of privacy is destroyed when the private actor conducts his search. Id. at 119. When the individual no longer has an expectation of privacy, the State does not conduct a "search" within the meaning of the Fourth Amendment to the United States Constitution. Id. ¶28 In Jacobsen, the Supreme Court held a search of a package by the police did not violate the Fourth Amendment so long as it did not exceed the scope of a prior private search. Id. at 120. There the defendant mailed cocaine concealed by eight layers of wrappings via Federal Express. Id. at 111. Federal Express opened the package in accordance with its procedures, discovered the package contained cocaine, and notified the DEA (Drug Enforcement Administration). Id. Federal Express placed the cocaine back in the box, just as it had found it, and the DEA pulled the cocaine out of the box without obtaining a warrant. Id. The Supreme Court held this search did not violate the Fourth Amendment because "[defendants] could have no privacy interest in the contents of the package, since it remained unsealed and since the Federal Express employees had just examined the package and had, of their own accord, invited the federal agent to their offices for the express purpose of viewing its contents." Id. at 119 (emphasis added). ¶29 In State v. Dold, 44 Wn. App. 519, 722 P.2d 1353 (1986), the Court of Appeals, relying on Jacobsen, held a police search of a private letter was not unconstitutional where the letter had been previously opened by a nonstate actor. Id. at 522. The police received a previously opened piece of mail, addressed to the defendant, in an envelope with no return address. Id. at 521-22. The letter indicated Dold was trafficking in marijuana and LSD (lysergic acid diethylamide). Id. Dold was subsequently investigated and charged with violation of the Uniform Controlled Substances Act, chapter 69.50 RCW. Id. at 522. ¶30 Contrary to the majority's assertion, the differences between article I, section 7 of the Washington State Constitution and the Fourth Amendment do not justify rejection of the "private search" doctrine under all circumstances. The determination of what constitutes private affairs under article I, section 7 "focuses on those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant." State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151 (1984). It can hardly be said that our citizens have, or are entitled to have, an expectation that they retain a privacy interest in evidence of a crime obtained by a private actor and delivered to the police. ¶31 I concur in the result reached by the majority, though, because the evidence here was not delivered to the police. As pointed out by Justice Charles Johnson, it is the delivery of evidence to the police by the private actor that is of determinative importance to the application of the private search doctrine. When a private party acting independently of the government conducts a search and delivers the material to the police, neither the Fourth Amendment, nor Article I, Section 7 require the police to obtain a search warrant before examining the material if the government search does not exceed the scope of that previously conducted by the private party. Charles W. Johnson, Survey of Washington Search and Seizure Law: 2005 Update, 28 SEATTLE U. L. REV. 467, 711 (2005) (emphasis added). ¶32 Each of the cases applying this principle includes the element of possession and delivery of the searched property. E.g., Jacobsen, 466 U.S. 109; Walter, 447 U.S. 649 (holding no constitutional search occurred when a series of boxes were delivered to the wrong party, opened by that party, and the contents searched prior to turning the boxes over to the police); Dold, 44 Wn. App. 519; State v. Bishop, 43 Wn. App. 17, 714 P.2d 1199 (1986) (a security guard found and seized packages of heroin in the defendant's hospital room, no illegal search occurred when the police reopened the packages and tested the material). ¶33 But in the case of a residential search, the private actor cannot deliver the house to the police. This is true here. Michael Piper did not deliver the house to the police and neither Piper nor the detectives ever had possession of the house. ¶34 In addition, the private search doctrine does not apply when an individual allows another to enter his or her home. Unlike the situation when a private individual opens a letter or a misdelivered package, or a company opens a box in its possession pursuant to company policy, the individual retains his or her privacy interest in the home when allowing another person to enter the home. ¶35 Unlike the majority, I would not reject the private search doctrine but would hold instead that the doctrine does not apply to a search of an individual's home because the legitimate expectation of privacy in an individual's home is not destroyed simply because another person has entered the interior of the home. C. JOHNSON, J., concurs with MADSEN, J.