The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” But how does this protection extend to the homeless, who often reside in public spaces?
This issue was highlighted Tuesday when a Clark County Superior Court judge ruled that Vancouver police officers violated a homeless man’s privacy rights when they looked inside his makeshift dwelling, despite him being camped illegally in downtown Vancouver.
Judge Scott Collier’s decision stemmed from a defense motion to suppress evidence in William R. Pippin’s drug possession case.
Pippin, 49, was arrested Nov. 2 and charged with methamphetamine possession after officers contacted him about camping in public past the lawful time. Officers had pulled back a tarp covering the entrance of Pippin’s shelter to look inside when he didn’t come out right away. In doing so, they saw some packaged methamphetamine.
Pippin’s defense attorney, Chris Ramsay, argued that although his client was camping illegally, officers still violated Pippin’s Fourth Amendment rights, both at the federal and state levels, when they looked inside his dwelling.
“(The homeless) have to live somewhere. Those who have the least deserve the most (protection),” Ramsay said.
But a professor at Virginia’s William & Mary Law School said he “respectfully disagrees.”
“It’s unfortunate, but the amount of privacy varies extremely and is widely based on who’s trying to exercise it,” professor Adam Gershowitz said. “The amount of Fourth Amendment right largely varies on wealth.”
Gershowitz argues that a person living in a large, gated house has more privacy than a person in an apartment. And apartment dwellers have more privacy than a college student in a dorm room. Homeless people, understandably, have the least amount of privacy, he said.
The Vancouver City Council unanimously voted in September to change the city’s unlawful camping ordinance to allow camping in public places from 9:30 p.m. to 6:30 a.m. The change, which went into effect Nov. 2, came following a federal Department of Justice opinion stating that it was unconstitutional to outlaw camping in all places and at all times, particularly when shelter space was unavailable, because people have a right to sleep.
Pippin’s shelter was part of a growing tent city in the areas of West 12th and 13th streets, Lincoln Avenue, and Jefferson and King streets.
Officers near the end of October began sweeping through camps to notify residents of the new ordinance and to tell them to prepare to clear out. They also posted informational fliers about the ordinance on people’s enclosures, Vancouver police Officer Tyler Chavers testified on Tuesday.
On Nov. 2, Chavers and Vancouver police Officer Sean Donaldson contacted Pippin at about 10:35 a.m. He was inside his shelter. The officers asked him to come out, and Pippin said he would in a moment.
Chavers wrote in his police report that “several seconds” went by and they could hear Pippin moving under the tarp. Donaldson then reached down and lifted the tarp to see inside, according to the defense’s brief filed in Superior Court.
The officers both testified, on behalf of the prosecution, they were concerned for their safety because Pippin was taking an unreasonable amount of time to come out. However, Ramsay said neither officer wrote that in police reports or the probable cause affidavit.
Deputy Prosecutor Anna Klein argued that Pippin’s dwelling was not protected because he was camping illegally. And even if it was, officers had a legitimate safety concern to look inside.
Right to privacy
After comparing Pippin’s case to federal appellate and Supreme Court decisions, Collier ruled that Pippin’s dwelling rose to the level of privacy protection. He additionally found that officer safety in the situation did not warrant Pippin’s privacy being violated.
Collier recognized, however, that the case in front of anyone else could have gone the other way and that Pippin got off on a technicality.
It’s possible the state could appeal the case, he said.
Gershowitz said he recognizes a situation such as Pippin’s hasn’t been easily resolved by any Supreme Court precedent, but added that he’s “dubious” as to why Collier granted the motion to suppress evidence.
“It’s hard to say a person has a reasonable right to privacy when they’re in a place they’re not supposed to be,” he said.
Mobile dwellings, such as a tent or car, he said, are subjected to a lower expectation of privacy.
Ramsay said he believes similar issues will likely continue to crop up as police officers enforce the city’s new camping ordinance.
“I’m very pleased with the ruling,” he said after the hearing. “I think everyone can learn from this.”