The American Civil Liberties Union (ACLU) of Washington is weighing in on a Clark County court case that attorneys believe could establish a right to privacy for individuals experiencing homelessness similar to those granted to housed people.
The case centers on William Pippin, who was found sleeping outside on public property in Vancouver in November of 2015 in violation of that city’s camping ordinance. Police lifted the edge of a tarp he was sleeping under and in doing so found a bag of what they suspected to be methamphetamine, resulting in Pippin’s arrest.
Clark County Superior Court found that Pippin had an expectation of privacy, citing a court case out of the 9th Circuit in which federal officials entered a tent in the course of an investigation into marijuana grows. They suppressed the evidence found during the search and dismissed the charge.
Prosecuting attorneys appealed the ruling, saying that the court was not bound by the 9th Circuit’s decision, and that Pippin had no expectation of privacy since he was already in violation of the law.
In their brief, Clark County prosecuting attorneys also highlighted the type of structure that was searched, saying, “The trial court erred in finding Pippen (sic) had an expectation of privacy underneath a tarp structure he had created on the side of a public road.”
That got the ACLU’s attention, said Doug Klunder, privacy counsel with the ACLU and author of the ACLU’s brief.
“To us, the big issue was the concept of what a non-traditional home is, recognizing that the protections that are given to the home apply not just to people in nice comfy homes, but also apply to people in really minimal homes,” Klunder said.
Vancouver’s camping laws, amended in autumn 2015 and enforced beginning in mid-October, allow camping between 9:30 p.m. and 6:30 a.m. but require that people move their belongings out after 6:30 a.m. Officers began canvassing the area around the Sharehouse, a social services provider that offers food, showers, laundry and other services, where a group of roughly 80 campsites had formed.
Police contacted Pippin during the day while he was underneath a tarp affixed to a fence owned by a private party. According to briefs by the Clark County Prosecuting Attorney’s Office and Pippin’s attorneys, they asked him to get up so that they could talk to him about the ordinance, which made camping at that time a misdemeanor offense.
Pippin verbally responded to the officers, but took too long, in their estimation, to get out from under the tarp. In testimony, they said they were concerned he might be getting a weapon or that their safety might otherwise be in jeopardy, so officers lifted the tarp so that they could see inside.
That’s when they saw Pippin and a bag of what they suspected to be methamphetamine.
Pippin was charged with possession, but his lawyer argued that using evidence found by lifting the tarp amounted to search without a warrant. The evidence was suppressed, and the charges dismissed. The case is being heard in the Washington Court of Appeals.
The case offers a unique opportunity to flesh out privacy rights for people experiencing homelessness. These rights already exist for housed people, who are protected from police entering their homes without a warrant, Klunder said.
Previous decisions looked at circumstances where a squatter was evicted from a cave on public land and a tent that wasn’t being used as a residence, but contained items recently taken from a nearby home. There are few cases that apply to this situation, in part because many people plead before going to court, especially when the defendant does not have resources.
If the decision stands, it could provide more clarity for future cases, something that could impact a lot of people as the number of homeless people, and unauthorized encampments, increase.