Washington Appeals Court Affirms Violation of No-Contact Order Conviction Supported by Video Surveillance

Article I, section 7 of the Washington State Constitution provides individuals a privacy right that is greater than the protection provided by the Fourth Amendment to the U.S. Constitution.  A search occurs under article I, section 7, when the government disturbs a citizen’s privacy interests that the citizen should be entitled to have safe from government interference without a warrant.  Courts consider the nature and extent of the information the government may obtain through its conduct.  An officer observing something through his or her own senses is not a search under this section, if the officer is in a location he or she is lawfully allowed to be.  Officers may use tools that enhance their natural senses, such as binoculars or flashlights, but equipment that does more than enhance the senses may require a warrant.  Law enforcement needs a warrant to use infrared thermal devices to observe heat patterns in a home or to track a private vehicle with a GPS device.

In a recent case, a defendant challenged his conviction of two counts of felony violation of a domestic violence no-contact order that involved video surveillance evidence.  He had previously pleaded guilty to misdemeanor counts of violation of a domestic violence no-contact order under a previous order.  According to the appeals court’s opinion, a detective initiated an investigation after an investigator with the Prosecuting Attorney’s Office encountered the defendant in the parking lot of his wife’s apartment building.  The detective had surveillance cameras installed on a telephone pole.  In the videos, she saw someone she believed to be the defendant walking toward the defendant’s wife’s apartment.  The police then obtained a search warrant.  When they executed the warrant, they found the defendant standing outside an open window.  They also found his mail and clothes in the bedroom.  He was arrested and charged with residential burglary and two counts of felony violation of a domestic violence order.

The defendant sought to suppress the video surveillance evidence, arguing the police violated his rights under both article I, section 7, and the Fourth Amendment.  He also argued the police were not allowed to install the surveillance cameras on telephone poles.  The trial court found the cameras were directed to public areas and the parking lot, not the defendant’s wife’s apartment.  The court also found the defendant did not have standing to raise the telephone pole issue.  The trial court denied the defendant’s motion to suppress the video evidence.

The jury convicted the defendant of two counts of felony violation of a no-contact order, but not the burglary charge. The defendant appealed.

On appeal, the defendant argued the video surveillance violated his article I, section 7 privacy right.  The appeals court found the camera only allowed the police to see what could be seen with the naked eye.  The appeals court found no violation of the state privacy right because the camera was aimed at the parking lot instead of the defendant’s wife’s door or window.

The defendant also argued the cameras violated his Fourth Amendment expectation of privacy.  The state argued the defendant did not even have a legal right to be in his wife’s apartment, so he could not have a reasonable expectation of privacy there.

Under the Fourth Amendment, a search occurs if the government violates a reasonable subjective expectation of privacy.  The defendant therefore must have a legitimate expectation of privacy in the location where the search occurred.  Washington courts have previously held there is no reasonable expectation of privacy in a place where the individual is not legally present.

In this case, the defendant was prohibited from entering or coming within 250 feet of his wife’s apartment.  His presence in the apartment and in the parking lot was illegal as a violation of the no-contact order.  He therefore did not have the standing to make a Fourth Amendment challenge of the video surveillance.

The appeals court found no error in the trial court’s denial of the request to suppress the video evidence and affirmed the convictions.

In this case, the defendant received felony convictions even though he was apparently in the protected person’s apartment with her permission.  Whether you are seeking, opposing, or facing charges for allegedly violating a protection order, you need the advice and assistance of an experienced Washington protection order attorney.  Blair & Kim, PLLC, has extensive experience in family law, civil protection orders, and criminal defense.  We can help you with all aspects of your case.  Call us at (206) 622-6562 to schedule a consultation.

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