Private search violates Washington Constitution

A private search is contrary to the Washington Constitution. Here, a repairman saw a marijuana grow operation and called the police who obtained a telephonic warrant. The court of appeals affirmed, and the supreme court reversed. State v. Eisfeldt, 163 Wn.2d 628, 185 P.3d 580 (2008):

¶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, or is likely to intrude upon, 8 the interest. The private search does not work to destroy the article I, section 7 interest, unlike the Fourth Amendment’s, because the Fourth Amendment’s rationale does not apply to our state constitutional protections.

A second safe was not named in a search warrant, and seizing it was not proper under plain view because the evidentiary value was not immediately apparent. State v. Powell, 268 S.W.3d 626 (Tex. App. — Ft. Worth 2008).*