Is a Tarp a Home? Inside the Case That Could Protect Homeless People Against Unwarranted Police Searches

The Stranger

William Pippin was still sleeping when the cops showed up around 10:30 a.m. At the edge of town in Vancouver, Washington, near a set of railroad tracks and a steel foundry, Pippin had strung a camouflage tarp between a guardrail and a chain-link fence.

It was a mild November morning. Police rapped on the tarp, notifying him and other homeless people in the area they would soon have to move on. From underneath his tarp, Pippin, a broad-shouldered 49-year-old, answered groggily. He'd be out soon, he told them. Some time passed, though exactly how much time is disputed. At the high end, it could have been two minutes—at the low end, as little as five seconds. In any case, an officer came to feel that Pippin was taking too long. The officer pulled back the tarp. Inside, he saw Pippin, Pippin's sleeping bag, and a clear baggie containing "a substantial quantity" of crystal meth. Pippin was arrested and charged with possession.

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The officers who showed up at Pippin's camp that morning were doing something that has become routine. In Washington State, and all along the West Coast, police and outreach workers regularly show up at homeless encampments, knock on tents, and tell people to get out. But that day, when a Vancouver police officer pulled back Pippin's tarp, he was also opening a far-reaching legal debate about the privacy rights of people living on the streets.

If Pippin had lived in a house, the officer's actions likely would have amounted to an illegal search. Unless an officer has a warrant or extenuating circumstances, the US Constitution protects you from a cop walking in your front door, seeing drugs, and arresting you. The Fourth Amendment guarantees people's right to be "secure in their persons, houses, papers, and effects against unreasonable searches and seizures," and the Washington State Constitution adds that "no person shall be disturbed in his private affairs, or his home invaded, without authority of law."

But on that November day in 2015, under his tarp on the side of a public road, Pippin was given no such protections.

When his public defender challenged the arresting officer's actions in Clark County Superior Court, a judge sided with Pippin, ruling the officers had violated his rights under the Washington State Constitution. Now prosecutors in Clark County are appealing the ruling, asking the Washington State Court of Appeals to declare that Pippin did not, in fact, have the same constitutional rights as a homeowner.

If the prosecution succeeds, unsheltered people all over the state could see the few rights they have decreased even further, homeless advocates say. If the prosecution loses, and the court sides with Pippin, the increasing number of people living in precarious circumstances across Washington—people living under tents, tarps, and all manner of other temporary ceilings—would have a solid privacy right they can count on.

Although homelessness nationwide has decreased in recent years, it's on the rise in Washington State. The number of people sleeping outside or in vehicles in the state increased 7 percent from 2015 to 2016, according to the US Department of Housing and Urban Development (HUD). Half of all people experiencing homelessness in the United States last year lived in just five states, according to HUD. Washington is one of them. President Donald Trump, meanwhile, has made general promises to cut government spending, appointed Ben Carson—who has no housing experience—as the head of HUD, and promised to drain federal funding from "sanctuary cities" like Seattle. With few signs that homelessness in Washington will decrease anytime soon, questions about how authorities treat people experiencing homelessness have become even more urgent.

Tristia Bauman, senior attorney at the National Law Center on Homelessness & Poverty, reviewed Pippin's case when contacted by The Stranger. Her assessment is blunt: "If this person had rented wooden walls, we wouldn't have this debate. It would be unquestionable that the police overstepped their bounds. But because this person is poor, then there becomes a debate about whether this person even had a home and has any of the fundamental guarantees afforded to the rest of us."

The city of Vancouver sits along the Columbia River, just a 20-minute drive from Portland, Oregon. It's a 173,000-person, working-class outpost where residents are familiar with poverty and the fact that wages in middle- and low-end jobs have been stagnant for decades. Most people in Clark County, which includes Vancouver, work for public schools, hospitals, or the Bonneville Power Administration. In last year's election, Hillary Clinton came in just 316 votes ahead of Donald Trump here. (Statewide, Clinton won by 16 percentage points.)

Back in 2015, the encampment where William Pippin stayed was a newly visible indication of the economic reality. Police reported at least 80 campsites in the area, local officials said it was a health hazard, and the local news reported that pro-gun advocates were patrolling the area with weapons.

"Here in Vancouver, homelessness was pretty much swept under the rug until a few years ago," says Adam Kravitz, who was homeless and lived in the woods near Vancouver before he founded Outsiders Inn, a Vancouver-based grassroots homeless-advocacy nonprofit.

That all changed when a court case did away with the law Vancouver had used to keep homeless people out of public view.

Since 1997, Vancouver had enforced an all-hours ban on camping on public land—like the side of the road where Pippin was camped. But in 2015, as a federal court considered a case about a similar camping ban in Boise, Idaho, the Department of Justice told the court that it was unconstitutional for cities to bar people from sleeping in public places if those cities did not have sufficient shelter space to house them.

If Boise's camping ban threatened homeless people's constitutional rights, then so did Vancouver's. The city council put the ban on hold and worked up a more limited rule: No camping between 6:30 a.m. and 9:30 p.m. (and no camping in city parks, no matter the hour). Word got out, and the camp at the edge of town grew.

"As soon as they provided a little bit of hope to the homeless community, they thought they could camp," Kravitz says. "Nobody really dived into the letter of the law. They just thought, 'We can camp,' and it spread like wildfire."

Eventually, the cops prepared to clear the sprawling camp and started showing up to warn people to move along. That's when they encountered Pippin.

Clark County prosecutors argue that on the day police asked Pippin to come out of his structure, he was slow to comply, making officers worry that he might have a weapon inside. (He didn't.) Because of the threat the officers perceived, the state argues they had the right to search his dwelling without a warrant. Beyond that, the state argues, even without the safety question, Pippin had no expectation of privacy in the structure.

"It defies logic," prosecutors write in a brief to the Court of Appeals Division II in Tacoma, "to believe a person who erects a makeshift tarp structure tied to a guardrail on the side of a road has a reasonable expectation of privacy in that structure to the same extent a person has an expectation of privacy in his home, which he lawfully occupies."

Today, in the wake of the Great Recession, with more and more people in Washington sleeping outside—almost always illegally occupying public land—the argument Clark County prosecutors are making has huge implications. In his own brief to the court, Pippin's lawyer for the appeal, Casey Grannis, writes that it "raises the question of whether there should be one standard for the rich and another for the poor."

Also coming to Pippin's defense is a coalition of advocacy groups: American Civil Liberties Union of Washington, Seattle University–based Homeless Rights Advocacy Project, Real Change, and Outsiders Inn, which have all filed an amicus brief supporting Pippin.

The groups argue that beyond the US Constitution, Pippin was also protected under the Washington State Constitution, which guarantees protection against having your "private affairs" or "home" invaded, but doesn't define what exactly "home" means. Because homeless people erect shelters that become their primary place of residence, the groups argue, they are entitled to the same privacy rights we expect in apartments and houses—even when those shelters are not what is traditionally considered a "home."

"Privacy," the advocacy groups write, "is not a privilege available only to the well-off and middle classes."

Sean Whitcomb, a spokesperson for the Seattle Police Department, says the training police receive is clear. "Regardless of whether or not you're on private or public property, there's an expectation of privacy," Whitcomb says, "and any governmental intrusion would need the proper authorization in the form of a search warrant."

"The same could be said of someone living in a car or an RV," Whitcomb adds, "regardless of whether or not that car or RV is legally or illegally parked." (Whitcomb would not speak specifically about the Pippin case but spoke generally about officers' treatment of people camping illegally.)

Even when officer safety is at risk, Whitcomb says, there are restrictions. Officers must have specific "exigent circumstances" threatening their safety, he says.

While the prosecutors say Vancouver police were in such pressing circumstances—"Officers need not wait to be accosted or assaulted before a brief, protective search," they write—Pippin's lawyers say they can't prove it. Prosecutors also say that if the appeals court does believe police were experiencing a threat to officer safety in this case, and finds that the officers responded to that threat with a reasonable search of Pippin's property, then the court could set aside the larger constitutional questions surrounding privacy rights for homeless people. (A lawyer for the ACLU of Washington agreed that's possible but said it's unlikely.)

In the lower court, Pippin's public defender argued that officers hadn't mentioned that they feared for their safety until a court was considering whether their search was lawful. "Salting in the notion of 'officer safety' after the fact," attorney Chris Ramsay wrote to the court, should raise "serious credibility issues" about the officers.

Today, no one seems to know where Pippin is. His public defender from the original case hasn't been in touch with him since that case was dismissed. Grannis, Pippin's new attorney, says he doesn't have a way to reach him (lawyers on appeal don't necessarily have to be in contact with their clients). And Jacob Dreyer, a man I met at the encampment on a recent Saturday, says he knew Pippin "from jail" but hadn't seen him recently. (Pippin has a criminal record in Washington going back to 1989, with felony and misdemeanor convictions for burglary, drug possession, domestic violence, and assault. In September, he was arrested in Portland for unauthorized use of a vehicle but no charges were filed.) Dreyer says he remembers Pippin as a "real animated" guy, but he doesn't remember his first name and he's not sure where he is now.

According to court records, Pippin, who is now 50, was born in Salinas, California, but has lived in Clark County since childhood. The first mention of meth in his Washington criminal record comes in a November 1998 possession charge. Pippin had been to treatment nearly a decade earlier, but was using again and staying "off and on" with friends, according to court documents. Pippin was receiving unemployment checks, his then-wife told police, but "not stable with residence or employment."

Ramsay, the public defender who argued the 2015 charge, doesn't remember much about Pippin or how he became homeless. On a phone call, Ramsay rustles around looking for documents about the case, but they've already been filed away. "I don't know," he says. "I suspect drugs had a lot to do with it."

When he dismissed Pippin's lower court case in December 2015, Clark County Superior Court judge Scott Collier warned Pippin he was getting off on a technicality but that if he continued to use drugs, he'd likely be back in court again.

"If you go about continuing to use... meth, it's just going to be a matter of time until the officers are picking you up and you are going to be back in here facing that," Collier told Pippin.

"I know it's incredibly tough," the judge continued, "particularly this time of the year, being out there on the streets. I think a lot of times what's going on is people are just finding a way to dull the pain a little, and I can appreciate that."

The judge then encouraged Pippin to seek drug treatment. "Thank you," Pippin said, sitting beside his lawyer in a mostly empty courtroom. "That is my hope." Records show Pippin hasn't been charged with any crimes in Washington, or booked into the Clark County Jail, since the December 2015 day he was released by Judge Collier.

What's not clear in the brewing appellate court arguments for Pippin's privacy is where, exactly, his privacy rights should end.

Local and national attorneys focused on the rights of homeless people say courts in Washington State could set clear parameters for what counts as a "home" worthy of constitutional protections. Bauman, from the National Law Center on Homelessness & Poverty, says courts should consider facts like what the person did in the area and how long they'd been there. Sara Rankin, director of Seattle University's Homeless Rights Advocacy Project, which has signed on to a brief supporting Pippin, says a person's activities in a given place help determine whether that place is their home.

"If I put an umbrella up, the space underneath is not my sanctuary. I'm not doing the things someone would do in their home," Rankin says. "But when you erect a tarp and you put a sleeping bag underneath it, [Pippin] has effectively tried to declare that space as his sanctuary. It's where he is trying to do the business of living and surviving." (If the prosecution is successful, Rankin warns that police will "have carte blanche to do warrantless searches without suspicion or probable cause on anybody on the streets.")

But the Clark County Prosecutor's Office fears that a court ruling in favor of Pippin could open widespread and unintended consequences.

"Are we asking our officers to go get warrants now for every person in a park who throws a blanket over themselves?" says Clark County senior deputy prosecuting attorney Rachael Probstfeld. "Like a cloak of invisibility? Like 'Oh this is my dwelling now'?"

If the court rules in favor of Pippin on the same grounds as the lower court—that his tarp was a home—then officers in Clark County will be advised that they "need to treat those encampments like buildings, office buildings, homes, that kind of thing," Probstfeld says. Under a Court of Appeals Division II ruling, officers across Southwestern Washington would be affected by the decision; if the Washington State Supreme Court agreed, it would apply across the state. (When reached by phone recently, though, Vancouver police officer Tyler Chavers, who was on site the day of Pippin's arrest, shrugged off the potential implications of a ruling in Pippin's favor. "It's not going to change the way officers do their day-to-day job," Chavers said. "What it boils down to is more case law for future defense attorneys and prosecutors.")

Questions about the exact boundaries of Americans' privacy rights at home have been debated since colonial days.

During an argument over a cider tax in 1763, British statesman William Pitt said, "The poorest man may in his cottage bid defiance to all the forces of the Crown." But, courts argued later, common law had also allowed for some entrances for the purpose of arresting people. Since the founding, legal scholars have disagreed about how exactly to apply the Fourth Amendment in the modern world. A Boston University law professor, Tracey Maclin, wrote in the William & Mary Law Review in 1993 that he believes "the central meaning of the Fourth Amendment is distrust of police power and discretion."

In Seattle during the Great Depression, a "Hooverville" of about 1,000 people sleeping in makeshift shelters put the region's economic inequities on display. But there's little established case law from that time about whether people living in such structures should have privacy protections. Doug Klunder, privacy counsel at the ACLU of Washington, says that's not surprising. State and local officials weren't required to offer Fourth Amendment protections until the 1960s, Klunder says, and the right to a public defender also wasn't recognized until the 1960s. "So the odds of somebody living in Hooverville having a lawyer to pursue a privacy case are extremely slim," Klunder says.

Once privacy rights are granted, courts must consider precisely where they are granted. For the purposes of protecting against unlawful searches in the home, what counts as a home?

In 1987, a Connecticut court convicted a homeless man of murder using evidence police found searching an area where the man lived under an interstate on-ramp. The state supreme court ruled police should have obtained a search warrant, and the man, David Mooney, won a new trial. In his new trial, Mooney struck a plea deal and served about five years in prison before he was released.

The case drew national attention as a victory for people living outside, but it couldn't ultimately save Mooney. In 1992, Mooney was found dead in the wooded area of a New Haven park. The park ranger who found his body told the Hartford Courant that Mooney appeared to have been dead for two or three months. To identify his body, the state medical examiner used dental records from the state Department of Correction.

Here in Washington, similar cases have brought mixed results. In some, courts have sided with people living outside, ruling their dwellings and belongings are protected from police searches. In others, they have sided with police. Probstfeld, the prosecutor, says her office is looking for "clarity so our officers know what to do." It's unclear when she might get that clarity. The appeals court has not yet set a date for when it will hear arguments in the case.

In the decision before the court, Bauman, from the National Law Center on Homelessness & Poverty, sees policy repercussions beyond Vancouver.

"We as a society have to think about what is an appropriate precedent given the rise in homelessness, the shrinking affordable-housing stock... and a lack of any reason to believe it's going to get better in the immediate future," she says. "It is poor public policy to suggest thousands of people in Washington State, just by virtue of poverty, have no right to privacy because they can't establish a legal home."

On a recent Saturday at the site where William Pippin was arrested, the sky was overcast and a small group of people huddled around a burning, nail-riddled two-by-four. About 50 tents were set up in the area, but only a few people milled around.

Dreyer, who remembered Pippin from jail, says his own recent bout of homelessness came after a falling-out with the mother of his child. He's tried applying for housing, he says, but hasn't had any luck. Dryer is 33 years old, wears a short reddish beard, and says he spends most nights sleeping on friends' couches or in his car. He has slept in a tent before, but "it's hard to even admit that I did that."

The reasons people keep coming back to this spot where Pippin and others were roused in 2015 are simple, Dreyer says. The shelter across the street doesn't have enough beds, he says, but it does offer three meals a day. Other charities come around here to deliver food, too. And it's a good place to buy meth and heroin.

Vancouver police are down here daily, Dreyer says. He doesn't trust the cops, but when it comes to search and seizure, he's sure everyone knows the limits. "[Police] cannot open a tent and go in," Dreyer says matter-of-factly.

"They're not going to walk up and unzip a tent," he adds. "A door is a door."