WA: Homeless man had REP in his tent camping in park after hours

A homeless man camping in a tent in Vancouver, WA had a privacy interest in his closed tent even though he was camping after hours. State v. Pippin, 2017 Wash. App. LEXIS 2365 (Oct. 10, 2017):

B. Intimate or Discrete Details of a Person’s Life

¶30 When historical protections, among other considerations, are not dispositive, the most important inquiry is whether the challenged action potentially reveals intimate details of a person’s life. See Jorden, 160 Wn.2d at 128-29. Washington courts have found that an individual’s intimate affairs are revealed if a search divulges: the places where an individual travels, “reveal[ing] preferences, alignments, associations, personal ails and foibles,” Jackson, 150 Wn.2d at 262, the “contents of people’s text messages[, which] exposes a ‘wealth of detail about [a person's] familial, political, professional, religious, and sexual associations,’” Hinton, 179 Wn.2d at 869 (second alteration in original) (quoting United States v. Jones, 565 U.S. 400, 415, 132 S. Ct. 945, 181 L. Ed. 2d 911 (2012)), and whether a person is present or not in a hotel room, Jorden, 160 Wn.2d at 129. The thread running through these examples is the disclosure of beliefs or associations, whether familial, political, religious, or sexual, as well as the disclosure of intimate or personally embarrassing information.

¶31 Our case law views the home as the type of property that secures an individual’s most personal possessions and conduct. “In no area is a citizen more entitled to his privacy than in his or her home,” Young, 123 Wn.2d at 185, and “‘the closer officers come to intrusion into a dwelling, the greater the constitutional protection.’” Id. (quoting State v. Chrisman, 100 Wn.2d 814, 820, 676 P.2d 419 (1984)). Thus, in determining whether Pippin’s private affairs were disturbed, we examine the characteristics his tent shares, and does not share, with a dwelling.

¶32 In Silverman v. United States, 365 U.S. 505, 512 n.4, 81 S. Ct. 679, 5 L. Ed. 2d 734 (1961), the United States Supreme Court spoke to this question:

“A man can still control a small part of his environment, his house; he can retreat thence from outsiders, secure in the knowledge that they cannot get at him without disobeying the Constitution. That is still a sizable hunk of liberty—worth protecting from encroachment. A sane, decent, civilized society must provide some such oasis, some shelter from public scrutiny, some insulated enclosure, some enclave, some inviolate place which is a man’s castle.”

(Emphasis added) (quoting United States v. On Lee, 193 F.2d 306, 315-16 (2nd Circ. 1951)).

¶33 Similarly, Rakas v. Illinois, 439 U.S. 128, 142-43, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978), recognized that the traditional home is not the only place in which a person should have privacy protection:

We think that Jones on its facts merely stands for the unremarkable proposition that a person can have a legally sufficient interest in a place other than his own home so that the Fourth Amendment protects him from unreasonable governmental intrusion into that place.

(Emphasis added.)

¶34 Silverman and Rakas counsel that an individual can have a privacy interest in a place other than a traditional home and, according to Silverman, society must allow some place where individuals are free from unreasonable searches.

¶35 Courts have already recognized zones of privacy for homeless individuals by finding that their closed baggage and containers are protected because it would reveal their personal matters. See, e.g., State v. Mooney, 218 Conn. 85, 588 A.2d 145, 152, 154 (1991) (privacy right in duffel bag and cardboard box). Further, our Supreme Court has stated that “readily recognizable personal effects are protected from search to the same extent as the person to whom they belong.” State v. Parker, 139 Wn.2d 486, 498-99, 987 P.2d 73 (1999). That is, “[p]ersonal items may be ‘so intimately connected with’ an individual that a search of the items constitutes a search of the person.” Id. (quoting State v. Hill, 123 Wn.2d 641, 643-44, 870 P.2d 313 (1994)).

¶36 Under the case law set out above, the more Pippin’s tent served as a refuge or retreat from the outside world, the more it could be the repository of objects or information showing his familial, political, religious, or sexual associations or beliefs, and the more it could contain objects intimately connected with his person, then the more his tent and the belongings within should be considered part of his private affairs under article I, section 7.

¶37 Pippin’s tent allowed him one of the most fundamental activities which most individuals enjoy in private—sleeping under the comfort of a roof and enclosure. Cf. Jorden, 160 Wn.2d at 131 (guest sleeping at hotel has privacy interest). The tent also gave him a modicum of separation and refuge from the eyes of the world: a shred of space to exercise autonomy over the personal. These artifacts of the personal could be the same as with any of us, whether in physical or electronic form: reading material, personal letters, signs of political or religious belief, photographs, sexual material, and hints of hopes, fears, and desire. These speak to one’s most personal and intimate matters.

¶38 The law is meant to apply to the real world, and the realities of homelessness dictate that dwelling places are often transient and precarious. The temporary nature of Pippin’s tent does not undermine any privacy interest. See Jorden, 160 Wn.2d at 131 (hotel guest); Stoner v. State of Cal., 376 U.S. 483, 490, 84 S. Ct. 889, 11 L. Ed. 2d 856 (1964) (hotel rooms); State v. Houvener, 145 Wn. App. 408, 416, 186 P.3d 370 (2008) (interior hallways of a dormitory) (collecting cases). Nor does the flimsy and vulnerable nature of an improvised structure leave it less worthy of privacy protections. For the homeless, those may often be the only refuge for the private in the world as it is.

¶39 Under the case law above, Pippin’s tent was the sort of closed-off space that typically shelters the intimate and discrete details of personal life protected by article I, section 7.

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