The State of Washington, Respondent, v. Timothy Enrique Jorden, Petitioner, 160 Wash. 2d 121

¶1 Timothy Jorden appeals his conviction for unlawful possession of cocaine. On March 15, 2003, a Pierce County deputy sheriff conducted a random warrant check of the Golden Lion Motel’s guests via the guest registry and discovered Jorden’s presence at the Lakewood motel as well as the fact of two outstanding warrants for Jorden’s arrest. Deputy sheriffs then entered Jorden’s motel room in order to arrest him for the outstanding warrants. Upon entering the room, officers saw cocaine in plain view. Jorden contends that the random check of the motel registry revealing his whereabouts constitutes a violation of his privacy rights under

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section 7 of the Washington State Constitution. We agree and reverse both the Court of Appeals decision and Jorden’s conviction. Bridge, J. I Facts and Procedural History ¶2 The Pierce County Sheriff’s Department takes

part in the “Lakewood Crime-Free Hotel Motel Program.” 1 Verbatim Report of Proceedings (VRP) at 11. The program offers assistance to motels and hotels that have a history of significant criminal activity, providing training on methods of crime reduction. The program also encourages officers to review the guest registries of hotels and motels on a random basis and without individualized or particularized suspicion. Officers often conduct random criminal checks of the names in guest registries at motels with reputations for frequent criminal activity.

When checking into a participating motel, guests are advised that a valid identification is required for check-in and that the identification information is kept on file, but the guests are not told of the possibility for random, suspicionless searches of the registry by law enforcement. ¶3 On March 15, 2003, Deputy Reynaldo Punzalan conducted a random check of the guest registry at the Golden Lion. Punzalan testified that he visited the motel that day as part of a routine check of the motel.

He also testified that because of the motel’s high volume of criminal incidents, it was not unusual for officers to visit the Golden Lion once per shift of their own accord. When Punzalan ran the name of guest Timothy Jorden through the mobile data computer in his vehicle, he found there were outstanding felony warrants for Jorden. Punzalan called for backup and confirmed Jorden’s room number using motel records. When backup arrived, Punzalan and his fellow officers knocked at Jorden’s door. After a couple of minutes, the door was answered by a female occupant.

Deputy Punzalan immediately removed the woman from the doorway and entered the room, whereupon an unclothed Jorden was discovered in the bed. Drug paraphernalia and a tin containing a substance later identified as crack cocaine were on a table nearby. Jorden was arrested and charged with unlawful possession of a controlled substance. ¶4 Prior to trial, Jorden moved to suppress evidence of the drugs and drug paraphernalia, arguing it was based on an illegal search.

Jorden argued that Deputy Punzalan’s search of the motel registry violated Jorden’s privacy rights under the state and federal constitutions, though Jorden’s argument primarily focused on the federal constitution. After considering federal case law, testimony from Deputy Punzalan on the practices surrounding the random registry checks, and argument from both parties, the trial court denied the motion. Evidence of the drugs and drug paraphernalia was introduced at trial.

Jorden was convicted and sentenced to 22 months in prison for unlawful possession of a controlled substance. ¶5 Jorden appealed, arguing that although the random registry check does not violate federal constitutional protections, it does violate state constitutional protections. The Court of Appeals concluded that the act of checking into a motel and the information required to do so — the same information found on a driver’s license — does not constitute a private affair protected by

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section 7. State v. Jorden, 126 Wn. App. 70, 74, 107 P.3d 130 (2005). Jorden filed a petition for review, which we granted. 155 Wn.2d 1011 (2005). II Analysis ¶6

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section 7 of the Washington Constitution provides that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” “[I]t is well established that

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section 7 qualitatively differs from the Fourth Amendment and in some areas provides greater protections than does the federal constitution.” State v. Surge, 160 Wn.2d 65, 70, 156 P.3d 208 (2007). We must therefore determine “whether

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section 7 affords enhanced protection in the particular context.” Id. at 71. Accordingly, we must determine whether that heightened protection is available in these circumstances to Jorden. ¶7

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section 7 protects against warrantless searches of a citizen’s private affairs. Therefore, a warrant-less search is per se unreasonable unless it falls under one of Washington’s recognized exceptions. State v. Hendrickson, 129 Wn.2d 61, 70-71, 917 P.2d 563 (1996). Here, the State does not argue the motel registry review falls into one of the exceptions, but argues that the information in the registry is not a private affair and thus there was no search triggering

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section 7 protection. ¶8 Private affairs are those “ ‘interests which citizens of this state have held, and should be entitled to hold, safe from government trespass.’ ” In re Pers. Restraint of Maxfield, 133 Wn.2d 332, 339, 945 P.2d 196 (1997) (plurality opinion) (quoting State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151 (1984)). In determining whether a certain interest is a private affair deserving

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section 7 protection, a central consideration is the nature of the information sought — that is, whether the information obtained via the governmental trespass reveals intimate or discrete details of a person’s life. See State v. Jackson, 150 Wn.2d 251, 262, 76 P.3d 217 (2003); State v. McKinney, 148 Wn.2d 20, 29, 60 P.3d 46 (2002); Maxfield, 133 Wn.2d at 341, 354; State v. Young, 123 Wn.2d 173, 183-84, 867 P.2d 593 (1994); State v. Boland, 115 Wn.2d 571, 578, 800 P.2d 1112 (1990). ¶9 In addition, this court has also considered whether there are historical protections afforded to the perceived interest.

McKinney, 148 Wn.2d at 27. And, where the perceived interest involves the gathering of personal information by the government, this court has also considered the purpose for which the information sought is kept, and by whom it is kept. Id. at 32. ¶10 Finally, this court has consistently expressed displeasure with random and suspicionless searches, reasoning that they amount to nothing more than an impermissible fishing expedition.

See Maxfield, 133 Wn.2d at 341; Jackson, 150 Wn.2d at 267; Young, 123 Wn.2d at 186-87 (expressing concern over an investigatory technique that “eviscerate [d] the traditional requirement that police identify a particular suspect prior to initiating a search”); City of Seattle v. Mesiani, 110 Wn.2d 454, 455 n.1, 755 P.2d 775 (1988) (program involving random sobriety checkpoints invalidated under

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section 7 because it lacked particularized and individualized suspicion). ¶11 Setting aside for a moment the question of the nature of the information sought, i.e., whether motel guest registries reveal intimate details about one’s life, we first evaluate the historical protections surrounding motel registries and the purpose for which such information is gathered. Although individuals have a privacy interest in their motel rooms, Stoner v. California, 376 U.S. 483, 490, 84 S. Ct. 889, 11 L.

Ed. 2d 856 (1964), historical data does not suggest whether Washington’s citizens have held, or should be entitled to hold, motel guest registries safe from suspicionless government trespass. The State offers common law authority that includes the use of guest registries in relation to the prosecution of a criminal suspect. Br. of Resp’t at 8. But in each of the cases cited, law enforcement had a particularized and individualized suspicion about the suspect that preceded review of the registry. See, e.g., State v.

Gunwall, 106 Wn.2d 54, 56, 720 P.2d 808 (1986) (police reviewed hotel register to confirm aspects of informant’s tip about suspected cocaine dealer); State v. Tharp, 96 Wn.2d 591, 593, 637 P.2d 961 (1981) (prosecution entered motel registration slip into evidence to show defendant registered with stolen car at motel); State v. Tweedy, 165 Wash. 281, 283, 5 P.2d 335 (1931) (guest register entered into evidence to show defendant charged with giving intoxicating liquor to minors invited into his hotel room). Here, there was no particularized and individualized suspicion of Jorden preceding review of the registry.

Thus, an historical inquiry does not resolve this question. ¶12 As to the purpose for which such information is kept, and by whom, RCW 19.48.020 requires hotels and motels to keep record of a guest’s arrival and departure for one year. RCW 19.48.020 is found within a title that sets forth various miscellaneous business regulations and within a

chapter regulating lodging houses and restaurants. There is no indication that RCW 19.48.020 was intended to require lodging records for law enforcement purposes. See McKinney, 148 Wn.2d at 27-29, 32 (citizens are not entitled to expect Department of Licensing (DOL) records are private and protected from disclosure because the records are gathered by a government agency for law enforcement purposes, and several Washington statutes attest to this fact). Moreover, the motel records are not compiled by a government agency. See id.

Thus, state law does not resolve the question. ¶13 Our most important inquiry then becomes whether a random and suspicionless search of a guest registry reveals intimate details of one’s life. We first consider that here there is more information at stake than simply a guest’s registration information: an individual’s very presence in a motel or hotel may in itself be a sensitive piece of information. There are a variety of lawful reasons why an individual may not wish to reveal his or her presence at a motel.

As the amicus American Civil Liberties Union of Washington (ACLU) points out, couples engaging in extramarital affairs may not wish to share their presence at the hotel with others, just as a closeted same-sex couple forced to meet at the motel also would not. Br. of ACLU at 11. The desire for privacy may extend to business people engaged in confidential negotiations, id., or celebrities seeking respite from life in the public eye.

One could also imagine a scenario, as Jorden’s trial attorney pointed out during the motion to suppress, where a domestic violence victim flees to a hotel in hopes of remaining hidden from an abuser. 1 VRP at 24. ¶14 Additionally, we note the sensitivity of the registry information in and of itself. Not only does it reveal one’s presence at the motel, it may also reveal co-guests in the room, divulging yet another person’s personal or business associates. See McKinney, 148 Wn.2d at 30.

Thus, it appears that the information gleaned from random, suspicionless searches of a guest registry may indeed provide “intimate details about a person’s activities and associations.” McKinney, 148 Wn.2d at 30 n.2 (holding that DOL records do not reveal such details). ¶15 Therefore, the information contained in a motel registry — including one’s whereabouts at the motel — is a private affair under our state constitution, and a government trespass into such information is a search.

We hesitate to allow a search of a citizen’s private affairs where the government cannot express at least an individualized or particularized suspicion about the search subject or present a valid exception to a warrantless search. A random, suspicionless search is a fishing expedition, and we have indicated displeasure with such practices on many occasions. [A] major cause for suspecting the present petitioner of criminal conduct lay in the fact that petitioner was located in what the police described as a high crime area.

It is beyond dispute that many members of our society live, work, and spend their waking hours in high crime areas, a description that can be applied to parts of many of our cities. That does not automatically make those individuals proper subjects for criminal investigation. State v. Larson, 93 Wn.2d 638, 645, 611 P.2d 771 (1980); see also Maxfield, 133 Wn.2d at 341; Jackson, 150 Wn.2d at 267; Young, 123 Wn.2d at 186-87; Mesiani, 110 Wn.2d at 455 n.1.

Consequently, we hold that the practice of checking the names in a motel registry for outstanding warrants without individualized or particularized suspicion violated the defendant’s

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section 7 rights. ¶16 We are not insensitive to the difficulties facing law enforcement in ensuring our motels and hotels remain relatively crime-free, but as a practical matter, our holding does not unduly restrict the investigative powers of the police. Random, suspicionless registry checks are but one part of the Lakewood Crime-Free Hotel Motel Program. Law enforcement may continue to randomly run checks of the license plates of cars parked at the motels, provide training to motel owners, and encourage motel owners to be watchful of behavior evincing criminal activity.

Reports of such observations may engender the requisite individualized suspicion that is notably missing from current program techniques. Ill Conclusion ¶17 Information contained in a motel registry constitutes a private affair under

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section 7 of the Washington State Constitution because it reveals sensitive, discrete, and private information about the motel’s guests. Absent a valid exception to the prohibition against warrant-less searches, random viewing of a motel registry violates

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section 7 of the Washington State Constitution. The evidence obtained from the registry of the Golden Lion Motel, which led officers to Jorden’s room, was obtained through unlawful means and should have been excluded. Accordingly, we reverse the Court of Appeals. Alexander, C.J., and Sanders, Chambers, Owens, and Fairhurst, JJ., concur. The program is voluntary in so far as motels will not receive crime prevention training if they are not enrolled in the program. But because the Ninth Circuit allows random registry checks under United States v.

Cormier, 220 F.3d 1103, 1108 (9th Cir. 2000), testimony at trial indicated that an officer may review a hotel’s registry without the hotel’s consent. Thus, while participation in certain aspects of the crime-prevention program is voluntary, the practice of random registry checks may occur whether or not a motel invites such a search.

While the Golden Lion welcomes the random checks, the practice gives rise to the concern voiced by amicus Pacific Hospitality Investment, Inc., a hotel group, that unwanted random checks discourage the business of lawful patrons at motels, interfere with business operations, and compromise the “duty and responsibility of a hotel operator to protect its guests against privacy violations.” Mem. of Amici Curiae in Support of Pet. for Review at 1.

Acting as amici curiae, the American Civil Liberties Union of Washington and Pacific Hospitality Investment, Inc., owner of two hotels in Fife, Washington, filed a memorandum in support of the petition for review, arguing that the random registry check violates

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section 7. A majority of the Maxfield court failed to agree that a review of power records constituted an impermissible intrusion into one’s private affairs. But a majority did consider the extent to which such records reveal details about an individual’s life. The plurality noted that electrical consumption “pervad[es] every aspect of an individual’s business and personal life,” Maxfield, 133 Wn.2d at 341, while the dissent believed that such records do not disclose “discrete information about an individual’s activities.” Id. at 354 (Guy, J., dissenting). Moreover, of the cases cited by the State, only Gunwall concerned an

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section 7 question, and there the use of a hotel register was not at all related to the privacy question. 106 Wn.2d at 55-57. At oral argument, the State referenced municipal codes that allow law enforcement to review motel registries, suggesting the codes evinced Washington citizens have not held such information free from governmental trespass. However, neither party cited the codes in briefing.

Amici’s memorandum in support of petition for review did cite the codes as evidence supporting the necessity of granting review in this case, but amici did not cite the codes in connection with the argument first put forth by the State during oral argument. Even if amici had made such an argument, we are not bound to consider argument raised only by amici. Port of Seattle v. Pollution Control Hearings Bd., 151 Wn.2d 568, 629 n.30, 90 P.3d 659 (2004). In McKinney, we upheld random checks by law enforcement of plainly visible vehicle license plates.

But there, numerous statutes revealed that DOL records are kept for law enforcement purposes, indicating that Washington citizens have not held such records to be free from government trespass. McKinney, 148 Wn.2d at 27-28. In addition, we explained that the information contained in a driver’s license record merely reveals one’s name, address, and limited physical characteristics, and therefore does not reveal intimate and discrete details about one’s life. Id. at 30. We concluded that no search had occurred under

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section 7. Thus, McKinney is clearly distinguishable from this case.