In re the Personal Restraint of Maxfield , 133 Wash. 2d 332 ( 1997 )

Johnson, J.

— In these two consolidated personal restraint petitions, we are asked to decide whether Mark and Pamela Maxfield were denied effective assistance of counsel when their attorney failed to adequately brief the state constitutional issue in the direct appeal of their convictions for possession and manufacture of a controlled substance. Specifically, we must decide whether there is a state constitutional protected privacy interest in electric consumption records prohibiting disclosure of such records by a public utility district employee. Because the Maxfields’ rights under article I, section 7 of the Washington Constitution were violated, we hold they were denied effective assistance of counsel and grant their petition to vacate their convictions and dismiss the charges.

FACTS

In late 1991 and early 1992, Mark and Pamela Maxfield were convicted of possession and manufacture of a controlled substance. The convictions arose out of the Max-fields’ involvement in two marijuana grow operations in Clallam and Jefferson counties. We affirmed those convictions in State v. Maxfield, 125 Wn.2d 378, 886 P.2d 123 (1994).

The genesis of the State’s investigation of the Maxfields was a telephone call from Warner Childress, the treasurer-comptroller of the Clallam County Public Utility District (PUD), to a member of the Clallam County Drug Task Force (Drug Task Force). Childress was the PUD’s designated contact person for law enforcement. He had also attended general PUD employee meetings where members of local law enforcement requested assistance in the form of information on suspicious activities.

On June 6, 1991, Drug Task Force member Kirk D. Chaney received a telephone call from Childress, informing Chaney of records indicating high power usage at 431 Atterbury Road. During the telephone call, Childress told Chaney there were two meters on the 431 Atterbury Road property, one on the house and one on the garage, and the meter on the garage indicated high readings. Chaney testified that Childress also told him the PUD had replaced two transformers at that location because of the load generated by the power usage in the garage. Childress testified he did not remember whether he learned of the blown transformers before or after the call to Chaney. Childress also testified that while the electric consumption records were high, they did not indicate an increase in consumption because the service at 431 Atterbury Road was new service.

Although he did not recall this specific instance, Childress testified he usually received information about suspicious power levels from meter readers and then he or the meter reader would contact the Drug Task Force. He had previously contacted the Drug Task Force on his own initiative on at least six occasions.

Based on this contact and pursuant to RCW 42.17.314 (the public disclosure act), the Drug Task Force requested the power records for 431 Atterbury Road and began an investigation. Ultimately, the Drug Task Force obtained a search warrant for 431 Atterbury Road and discovered a marijuana grow operation.¹ The Maxfields were charged with possession of a controlled substance and intent to manufacture or deliver a controlled substance. Maxfield, 125 Wn.2d at 384. The trial court denied the Maxfields’ motion to suppress the evidence and both were convicted based on stipulated facts. Maxfield, 125 Wn.2d at 384. On direct appeal, this court held RCW 42.17.314 had been complied with and the Maxfields’ Fourth Amendment rights had not been infringed. This court specifically declined to address the question of the Maxfields’ privacy interest under the state constitution because of defense counsel’s failure to brief the Gunwall² factors. Maxfield, 125 Wn.2d at 394.

Following their direct appeal, the Maxfields individually filed personal restraint petitions (PRPs), requesting relief based on double jeopardy and ineffective assistance of counsel for failure to brief the Gunwall factors. The Court of Appeals dismissed both petitions, holding double jeopardy was not implicated and Petitioners had failed to meet their burden on the ineffective assistance of counsel claim because actions of public utility district employees do not implicate the state constitution. In re Personal Restraint of Maxfield, 81 Wn. App. 705, 915 P.2d 1134 (1996). We granted discretionary review solely on the state constitutional issue.

ANALYSIS

I

The sole issue remaining in the review of the Maxfields’ PRPs involves the extent of protection afforded state citizens under article I, section 7. As required by our case law, the Maxfields have completed the requisite first step in a state constitutional case, allowing for meaningful review in this court, by adequately briefing the Gunwall factors. See City of Seattle v. McCready, 123 Wn.2d 260, 267-68, 868 P.2d 134 (1994); State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986).

The specific provision of our state constitution at issue is article I, section 7: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Const, art. I, § 7. Before undertaking a Gunwall analysis and determining the extent of article I, section 7’s protections in this context, we must first determine whether there is state action such that the provision is applicable at all. As a general proposition, neither state nor federal constitutional protections against unreasonable search and seizure are implicated in the absence of state action. See Burdeau v. McDowell, 256 U.S. 465, 41 S. Ct. 574, 65 L. Ed. 1048, 13 A.L.R. 1159 (1921); State v. Ludvik, 40 Wn. App. 257, 262, 698 P.2d 1064 (1985); 1 Wayne R. LaFave, Search and Seizure § 1.8 (3d ed. 1996). While state action is required, action by law enforcement is not necessary to invoke the protections of article I, section 7. State v. Vonhof, 51 Wn. App. 33, 37, 751 P.2d 1221 (1988) (action by tax appraiser implicates article I, section 7); see also McCready, 123 Wn.2d 260 (article I, section 7 applies to city building inspectors’ authority to perform nonconsensual inspections.); Kuehn v. Renton Sch. Dist. No. 403, 103 Wn.2d 594, 602, 694 P.2d 1078 (1985) (school officials and parents were state actors for purposes of Fourth Amendment and article I, section 7 when conducting general search of students’ luggage).

Here, the complained of action was undertaken by Warner Childress, the treasurer-comptroller of the PUD. Public utility districts are municipal corporations, created and defined by statute, and with only those powers conferred on them by charter, statute, or the constitution. City of Tacoma v. Taxpayers of Tacoma, 108 Wn.2d 679, 685-86, 743 P.2d 793 (1987); see RCW 54.04.020. So long as Childress was acting in his official governmental capacity, his actions invoke the protections of article I, section 7. See Vonhof, 51 Wn. App. at 37 (tax appraiser acting in official capacity is state actor); Ludvik, 40 Wn. App. at 262-63 (state game agent was not acting in official capacity when he viewed drug transactions from his home).

There is no question that Childress was acting in his official capacity as the treasurer-comptroller, and designated law enforcement contact, when he noticed or was alerted to the Maxfields’ electric consumption records and contacted the Drug Task Force. Childress testified that in the course of his employment, if he discovered or was alerted to suspicious power usage he would contact the Drug Task Force, and had done so on at least six previous occasions. He also testified law enforcement officers had previously made presentations to the PUD’s employees asking for assistance in identifying any suspicious activities they might discover. Here, in the same manner as the tax appraiser in Vonhof, Childress was acting in his official capacity when he discovered the high electric consumption levels at 431 Atterbury Road and contacted the police; therefore, we find the constitutional protections in article I, section 7 are implicated in this case.

II

Having determined article I, section 7 applies, we must next examine that provision and determine whether the Maxfields have a protected privacy interest in their electric consumption records prohibiting disclosure by a PUD employee without authority of law. The framework used to make such determinations is set forth in Gunwall, and consists of six nonéxclusive criteria. Gunwall, 106 Wn.2d at 58. In Gunwall, and on numerous subsequent occasions, this court has examined the state constitutional provision at issue here, article I, section 7, and found that the protections it affords are "qualitatively different from, and in some cases broader than, those provided by the Fourth Amendment.” McCready, 123 Wn.2d at 267; see, e.g., State v. Boland, 115 Wn.2d 571, 800 P.2d 1112 (1990); Gunwall, 106 Wn.2d 54. Examining article I, section 7 in light of Gunwall, specifically its language, structure, and our preexisting case law and statutes, we hold there is a privacy interest in electric consumption records preventing their disclosure by a public utility district employee without authority of law. In keeping with our approach in Boland, we adopt Gunwall’s and State v. Young’s analyses of the first, second, third and fifth Gunwall factors because those cases examined the same constitutional provision at issue here in similar contexts. Boland, 115 Wn.2d at 576; Gunwall, 106 Wn.2d at 64-67; State v. Young, 123 Wn.2d 173, 179-80, 867 P.2d 593 (1994).

On its face, article I, section 7’s structure and language are materially different from the Fourth Amendment. See McCready, 123 Wn.2d at 270. Article I, section 7 breaks down into two main components: "private affairs” and "authority of law.” This court has frequently focused on the "private affairs” language in determining the scope of article I, section 7’s protection. See Boland, 115 Wn.2d at 577; Gunwall, 106 Wn.2d at 65; State v. Myrick, 102 Wn.2d 506, 510, 688 P.2d 151 (1984). Here, as in those prior cases, the "private affairs” language of article I, section 7 provides the key to resolving the question at hand. However, an equally important second step requires an inquiry into whether there exists the "authority of law” to disturb one’s "private affairs.” See McCready, 123 Wn.2d at 270. Therefore, we proceed with our analysis using this two-step approach.

"Private Affairs”

We have defined the scope of article I, section 7’s right of privacy as focusing on "those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass . . . .” Myrick, 102 Wn.2d at 511. "The assessment of whether a cognizable privacy interest exists under [article I, section 7] is thus not merely an inquiry into a person’s subjective expectation of privacy but is rather an examination of whether the expectation is one which a citizen of this state should be entitled to hold.” McCready, 123 Wn.2d at 270.

We have previously found cognizable privacy interests under article I, section 7 in telephone numbers called,³ garbage,⁴ and thermal heat waste.⁵ In Young, this court found article I, section 7 prohibited infrared surveillance of a home without a warrant. In determining the scope of article I, section 7, the court stated:

Unlike the Fourth Amendment, Const, art. 1, section 7 "clearly recognizes an individual’s right to privacy with no express limitations”. [State v.] Simpson, 95 Wn.2d [170], 178, [622 P.2d 1199 (1980)]. With this foundation, both this court and the Legislature decided an individual has a protected privacy interest in power usage records. In re Rosier, 105 Wn.2d 606, 717 P.2d 1353 (1986); State v. Maxwell, 114 Wn.2d 761, 791 P.2d 223 (1990); RCW 42.17.314. In Rosier, we recognized that the important policy of public disclosure of information relating to the performance of public officials cannot encroach upon the general personal privacy rights to which every citizen is entitled. Rosier, 105 Wn.2d at 611. The Legislature confirmed the importance of this right by prohibiting the disclosure of a person’s electrical consumption without a written assertion that a particular electrical utility customer is suspected of criminal activity. RCW 42.17.314.

Young, 123 Wn.2d at 180. This analysis applies with even greater force in the context here. While the privacy interest in electric consumption records may be characterized as "minimal,”⁶ it is still a privacy interest subject to the protections of article I, section 7.

Finding a privacy interest in electric consumption records is in keeping with our holdings in Young and Gunwall. In Gunwall, we held that placing a pen register (which records outgoing telephone numbers) on a telephone line and obtaining long distance records from the telephone company without a warrant were unreasonable intrusions into an individual’s private affairs. Gunwall, 106 Wn.2d at 68. In reaching that conclusion, we relied in part on the fact that " '[a] telephone is a necessary component of modern life’ ” and the necessary disclosure to the telephone company of numbers dialed does not change the caller’s expectation of privacy " 'into an assumed risk of disclosure to the government.’ ” Gunwall, 106 Wn.2d at 67 (quoting People v. Sporleder, 666 P.2d 135, 141 (Colo. 1983)). " 'This disclosure has been necessitated because of the nature of the instrumentality, but more significantly the disclosure has been made for a limited business purpose and not for release to other persons for other reasons.’ ” Gunwall, 106 Wn.2d at 68 (quoting State v. Hunt, 91 N.J. 338, 347, 450 A.2d 952 (1982)).

Those rationales also apply to electric consumption records. Electricity, even more than telephone service, is a "necessary component” of modern life, pervading every aspect of an individual’s business and personal life: it heats our homes, powers our appliances, and lights our nights. A requirement of receiving this service is the disclosure to the power company (and in this case an agent of the state) of one’s identity and the amount of electricity being used. The nature of electrical service requires the disclosure of this information, but that disclosure is only for the limited business purpose of obtaining the service.

RCW 42.17.314 recognizes and offers protection for this privacy interest. The statute requires law enforcement officers to articulate in writing a suspicion of individualized criminal activity and a reasonable belief that the information will help determine whether the suspicion is true before they can receive electric consumption records from a public utility district. RCW 42.17.314; State v. Maxwell, 114 Wn.2d 761, 791 P.2d 223 (1990). While this protection is less than that provided by a search warrant, it necessarily recognizes a limited or minimal privacy interest in electric consumption records to prevent the police from going on general "fishing expeditions.” In re Rosier, 105 Wn.2d 606, 616, 717 P.2d 1353 (1986). Thus, both this state’s case law and statutes recognize a privacy interest in electric consumption records which the citizens of this state are entitled to hold free from governmental trespass. This leads to the next question of what "authority of law” is required before the government is entitled to trespass on a citizen’s interest in these records.⁷

"Authority of Law”

The second prong of article I, section 7 requires "authority of law” before an individual’s private aífairs can be disturbed. "Generally speaking, the 'authority of law’ required by Const, art. 1, § 7 in order to obtain records includes authority granted by a valid, (i.e., constitutional) statute, the common law or a rule of this court. In the case of long distance toll records, 'authority of law’ includes legal process such as a search warrant or subpoena.” Gunwall, 106 Wn.2d at 68-69 (citations omitted).

The same is true for obtaining electric consumption records from a public utilities district. As noted above, a public utility district has only those powers authorized by charter, statute, or the constitution. City of Tacoma, 108 Wn.2d at 685-86. There is no authority, be it statutory or constitutional, for a public utility district to unilaterally disclose facts about the electric consumption records of one of its consumers. Because the privacy interest in electric consumption records is minimal, more closely akin to the toll records addressed in Gunwall than the pen register, the Legislature may enact a statute authorizing such disclosure so long as at least some level of protection exists, e.g., the suspicion of criminal activity requirement in RCW 42.17.314.

In this case, in addition to a lack of statutory authority, there was nothing to indicate a reasonable suspicion of criminal activity at the time the records were disclosed. The service at 431 Atterbury Road was new, thus it did indicate an increase over any previous service. Additionally, the Department of Labor and Industries inspection report, required before service can be started, stated there would be pottery kilns used in the garage at Atterbury Road which consume large amounts of electricity.

In this case, the PUD had no "authority of law” to contact the Drug Task Force and disclose information about the Maxfields’ electric consumption records. The "authority of law” for disclosure of such records may not require the full blown protections of a search warrant; however, some "authority of law” is certainly required. In the absence of any "authority of law,” the PUD’s action unreasonably disturbed the Maxfields’ private aifairs.

Remedy

The proper remedy for the violation of the Maxfields’ privacy rights in this case is the application of the exclusionary rule. The exclusionary rule in this state has a long history, independent from that of the federal rule. See Sanford E. Pitler, Comment, The Origin and Development of Washington’s Independent Exclusionary Rule: Constitutional Right and Constitutionally Compelled Remedy, 61 Wash. L. Rev. 459 (1986). When an individual’s right to privacy is violated, article I, section 7 requires the application of the exclusionary rule. Boland, 115 Wn.2d at 582; State v. White, 97 Wn.2d 92, 110, 640 P.2d 1061 (1982); Pitler, supra, at 502.

Here, the disclosure by the PUD of the Maxfields’ power consumption levels led directly to the evidence recovered in both searches. Because the original disclosure was in violation of article I, section 7, all of the subsequently recovered evidence must be suppressed.

Ill

The constitutional issue addressed above arose in the context of the Maxfields’ personal restraint petitions’ claim of ineffective assistance of counsel. They claimed they were denied effective assistance of counsel on their direct appeal when their attorney failed to adequately brief the Gunwall factors. In order to prevail on an appellate ineffective assistance of counsel claim, petitioners must show that the legal issue which appellate counsel failed to raise had merit and that they were actually prejudiced by the failure to raise or adequately raise the issue. In re Personal Restraint of Lord, 123 Wn.2d 296, 314, 868 P.2d 835 (1994). The discussion above demonstrates the merits of the legal issue underlying the Max-fields’ claim. Because the application of the exclusionary rule would have resulted in the suppression of all the evidence seized in both searches, the Maxfields have also demonstrated actual prejudice.

CONCLUSION

We hold there is a privacy interest in electric consumption records such that they cannot be disclosed by a public utility district without authority of law. Because no authority of law exists to authorize the disclosure in this case, the disclosure unreasonably disturbed the Petitioners’ private affairs. Accordingly, the requests for relief in the Maxfields’ personal restraint petitions are granted; the convictions are vacated and the charges dismissed.

Smith, Alexander, and Sanders, JJ., concur.

1 As a result of the search, another search warrant was obtained for the Max-fields’ residence in Jefferson County where a second grow operation was discovered. Maxfield, 125 Wn.2d at 384. Charges were ultimately brought in both Clallam and Jefferson counties. Id.

2 State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986).

3 Gunwall, 106 Wn.2d 54.

4 Boland, 115 Wn.2d 571.

5 Young, 123 Wn.2d 173.

6 In re Rosier, 105 Wn.2d 606, 615, 717 P.2d 1353 (1986).

7 Notably, at oral argument the State conceded there was a privacy interest in electric consumption records.