"No experiment can be more interesting than that we are now trying, and which we trust will end in establishing the fact, that man may be governed by reason and truth. Our first object should therefore be, to leave open to him all the avenues to truth. The most effectual hitherto found, is the freedom of the press. It is, therefore, the first shut up by those who fear the investigation of their actions." --Thomas Jefferson to John Tyler, 1804.

The motel search

Washington courts Amajor dump of significant Washington Supreme Court decisions today, including a decision sure to get lots of political attention; and another we think worthy of more consideration and thought.

The flashy ruling came in the oddly-named San Juan County v. No New Gas Tax, that radio political commentary is not a “campaign contribution” under the state Fair Campaign Practices Act.

We hold that the radio broadcasts at issue fall within the statutory media exemption (RCW 42.17.020(15)(b)(iv)) because they aired during the content portion of a regularly scheduled radio program, for which the broadcaster does not normally require payment, on a radio station that is not controlled by a candidate or political committee. Because the media exemption applies, the radio broadcastsare not a campaign “contribution” within the meaning of RCW 42.17.020(15)(a). Accordingly, we reverse the trial court’s CR 12(b)(6) ruling, which was based on the trial court’s incorrect determination that the FCPA required reporting of the radio broadcasts as campaign contributions and remand for further proceedings consistent with this opinion.

That may be the result that had to be: To draw the line anywhere other than between paid and unpaid air time would amount to opening an almost impossibly unclear boundary between contribution and commentary. (And if talk radio can be a contribution, why not blog entries? And if so, which?) There’s messy territory here, when – as happened in this case, where a couple of Seattle conservative talkers basically spearheaded the (failed) campaign against the 2005 gas tax increase; putting their activities, which stopped just short of overt political organizing, in the case territory as editorials and news reports seems not quite right. But it will have to do.

The more fascinating read, however, was in Washington v. Timothy Jorden, which centered on a law officer’s viewing of a motel registry.

The facts are clear-cut and not in dispute. In March 2003 a Pierce County deputy sheriff stopped by the Golden Lion Motel at Lakewood, whose guests over several years had a history of criminal activity. The officer was welcome, though, ad his visit was not unusual, because the motel participated in a cooperative anti-crime program, part of which allowed officers to look over the guest register. The officer saw a familiar name, and in his car’s computer confirmed the hunch: Timothy Jorden, listed as a guest, was wanted on two outstanding arrest warrants. The officer called for and got backup, then knocked on the door. A woman answered; she was pulled outside. The officers entered and found Jorden in bed, and a stash of crack cocaine visible nearby. Jorden was arrested.

The case turned on a question of illegal search. We’re not talking about a search of the room, because the officers entered not to search but to arrest Jorden. Police review of the motel register is allowed under federal law (there are federal cases on that point). But the Washington state constitution is more restrictive, and Jorden’s attorney argued that a random review of a motel register by law enforcement is a random search, not a reasonable – relying on a specific reason – search, and should therefore be thrown out.

An immediate thought might be that a motel register isn’t really a private matter, except maybe to the motel (and it had no problem with show it). The court suggested,

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 (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.

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 30n.2 (holding that DOL records do not reveal such details).

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.

We’ve never much considered motel registries to be especially “private” recordings. How many times have any of us, while checking into a motel or other lodging that still has a written register instead of or in addition to a computer, run our eyes up and down it? Or looked at the historical register of a place – some tourist motels play up the historical record and continuity as part of the appeal of staying at the place.

At the same time, in an age when privacy seems to erode like a wall of sand against a tsunami, there’s some relief in knowing that at least some courts do respect the need for privacy. And as for law enforcement and motel cooperation, that should be able to continue, though, probably, with a little change of rules and procedures.

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