The Washington Court of Appeals ruled on Wednesday that people living on the streets are entitled to the same constitutional privacy protections as those living in houses.
Earlier this year, we covered the case of William Pippin. In November 2015, Pippin was living under a tarp on a roadside in Vancouver, Washington, when police arrived. The cops were there to notify people living in the encampment that they would soon have to move on. They rapped on Pippin's tarp. Pippin said he'd be out soon but when an officer felt he was taking too long, the officer pulled back the tarp. Inside, he saw a clear baggie containing crystal meth. Officers arrested Pippin and he was charged with possession. In court, Pippin's public defender challenged the arrest, claiming the evidence was obtained in an illegal search. A judge sided with Pippin, suppressed the drug evidence, and dismissed the case. In opening Pippin's structure without a warrant, officers had violated his rights under the Washington State Constitution, the Clark County Superior Court judge ruled. Clark County prosecutors appealed.
"It defies logic to believe a person who erects a makeshift tarp structure tied to a guardrail on the side of a road has a reasonable expectation of privacy in that structure to the same extent a person has an expectation of privacy in his home, which he lawfully occupies," the prosecutors wrote to the Court of Appeals.
Not so, the higher court ruled this week.
In their decision, three Court of Appeals Division II judges write that Pippin's tarp structure was indeed protected by the Washington State constitution's rule that "no person shall be disturbed in his private affairs, or his home invaded, without authority of law."
In their decision, the judges cite past cases and efforts by the state legislature to reduce homelessness, including the creation of a system to collect information from homeless people. That system requires informed consent from people experiencing homelessness in order to protect their privacy. That "provides a small window into the realities of homeless life and conveys a general respect for the privacy of homeless individuals’ personal information," the court writes.
In deciding whether Pippin's structure should count as a home safe from seizure, the judges analyzed whether the structure could reveal "intimate details" of someone's life. Their finding: absolutely.
"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," the judges write. "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."
The temporary nature of a tent or tarp doesn't undermine the privacy rights of the person living inside, the judges write, citing past cases involving hotel guests. "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."
The judges also took on the claim that Pippin did not deserve privacy protections because he was on public land. "To call homelessness voluntary, and thus unworthy of basic privacy protections is to walk blind among the realities around us," the court writes. "Worse, such an argument would strip those on the street of the protections given the rest of us directly because of their poverty. Our constitution means something better."
Pippin is not entirely out of the woods on the drug charge, though.
In the appeal, county prosecutors argued that even if Pippin had privacy protections, the search was necessary for officer safety.
Officers claimed that they worried for their safety when Pippin refused to come out of his tarp structure. But it's not clear how long they waited for him to come out before pulling the tarp back. One officer said they waited five minutes; another said it was between five seconds and two minutes. The lower court judge didn't buy the argument that officers' fears during that time justified their search.
The appellate judges say the trial court judge used the wrong legal framework to analyze whether officers rightly feared for their safety. So, even while upholding Pippin's privacy rights, the Court of Appeals sent the case back to the trial court to again consider whether officers faced enough perceived threat to justify their search. If that court finds that the safety concerns justified the search, the drug evidence could be allowed back in and Pippin could be convicted.
The county prosecutors who charged him have not responded to requests for comment on the ruling. In a statement, ACLU of Washington spokesperson Doug Honig says: “We are pleased that the court recognized that constitutional rights apply to everyone. Whether your home consists of a tarp and poles or of bricks and mortar, you have a right to privacy that government officials must respect."