(dissenting) — In its eagerness to find a constitutional right to privacy in the amount of electricity delivered to a particular piece of property, the majority opinion distorts this court’s precedent, disregards our statutes, and abandons common sense. Accordingly, I dissent.
The majority comes to the puzzling conclusion that some, but not all, of Washington’s citizens have a constitutional right to require their utility company to keep electrical consumption information secret. This "constitutional right” belongs only to those citizens whose electricity is delivered by public utility companies—not to those of us who live within the boundaries of private utility companies.
To marijuana growers this is important information that will serve as a guide in selecting sites to develop their businesses. To the rest of us, the importance of this case lies in its trivialization of the constitutional right against unreasonable searches and seizures or unreasonable invasions of private matters.
*350There was no search in this case. There was no seizure. There was no disclosure of private, personal information confidentially entrusted to a power company.
Here, as in State v. Vonhof, 51 Wn. App. 33, 751 P.2d 1221 (1988), a case cited by the majority at page 337, a public employee lawfully discovered information that appeared to show criminal conduct. Here, as in Vonhof, there was no search. And here, as in Vonhof, the court should hold that there was no constitutional violation of a right to privacy by disclosure of observations made in the ordinary course of employment.13
After creating this "constitutional” right to privacy in electrical power consumed only within the boundaries of a public utility district, the majority goes on to hold that all evidence gained as a result of the utility company employee’s disclosure should have been suppressed under this state’s exclusionary rule. This is the only case in which this court has applied the exclusionary rule to evidence that did not result from (1) an unlawful search or seizure that was (2) conducted by law enforcement. In support of its conclusion that suppression is mandated, the majority cites to a student comment which appeared in a 1986 law review and to two. cases involving unlawful searches by police officers. Majority opinion at 343.14
I would affirm the Court of Appeals. I would hold that the Maxfields are unable to show ineffective assistance on the part of their appellate counsel because a briefing of the Gunwall criteria does not support an independent analysis of Const, art. I, § 7.
In determining, in a given case, whether it is appropri*351ate to independently interpret the state constitution, this court examines six nonexclusive factors which were first articulated in State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986). See State v. Johnson, 128 Wn.2d 431, 444, 909 P.2d 293 (1996). Those factors are: (1) the textual language of the state constitution; (2) significant differences in the texts of parallel provisions of the federal and state constitutions; (3) state constitutional and common-law history; (4) preexisting state law; (5) differences in structure between the federal and state constitutions; and (6) matters of particular state interest or local concern. Gunwall, 106 Wn.2d at 61-62.
As the majority notes, this court has previously examined Const, art. I, § 7 under a Gunwall analysis. Only factors (4) and (6) are generally unique to the context in which the interpretation question arises. Johnson, 128 Wn.2d at 445.
The fourth Gunwall factor requires an examination of preexisting state law in order to determine what kind of protection Washington State has historically accorded information about electrical usage. See State v. Young, 123 Wn.2d 173,179, 867 P.2d 593 (1994).
The majority relies on our opinions in Young and In re Rosier, 105 Wn.2d 606, 717 P.2d 1353 (1986) to support its conclusion that preexisting law shows an intent to grant a constitutional right to privacy in power records. The majority ignores our case law explaining Young and Rosier, and ignores, as well, the Legislature’s response to Rosier.
In our opinion in the direct appeal in the present case, we held that the Young language relied on by the majority is dicta, State v. Maxfield, 125 Wn.2d 378, 391 n.20, 886 P.2d 123 (1994), and must be read in the context of that case. Neither Rosier nor State v. Maxwell, 114 Wn.2d 761, 791 P.2d 223 (1990), the cases cited in Young, nor the statute, recognizes a privacy right in electrical consumption records. These cases and the statute were thoroughly discussed less than three years ago in State v. Maxfield, 125 Wn.2d at 387-93.
*352In Rosier this court examined two requests for public records. Both requests were made to a public utility district in Snohomish County. One was from a political opponent of the utility district’s commissioners and asked for the names and addresses of the utility district’s approximately 156,000 customers. The second involved requests for records by police officers.
In Rosier, this court did not find a general privacy interest in power consumption records. Instead, we held, "The public has a significant interest in disclosure of information leading to arrest for illegal conduct; but the public in general, as well as any particular individual, has a privacy interest in preventing general 'fishing expeditions’ by governmental authorities.” Rosier, 105 Wn.2d at 615. This court went on to hold:
In the present case, the privacy interest in the power usage records is minimal; the information is fairly innocuous and reasonable persons would not be highly offended by its release. We admit that its release to police officers would "highly offend” anyone who engages in illegal activity, e.g., growing marijuana; but this person is not the appropriate measure of a "reasonable person”.
Rosier, 105 Wn.2d at 615.
Rosier then attempted to redefine "privacy interest” under the public disclosure act, RCW 42.17. Rosier stated that this court recognized a privacy interest, under the terms of the public disclosure law, in any information released by an agency (a) which is matched specifically to a particular individual’s name and (b) which reveals a unique fact about the individual. Rosier, 105 Wn.2d at 614-15.
During the legislative session immediately following the Rosier decision, the Legislature effectively overruled part of Rosier by nullifying the opinion’s new definition of "privacy interest.” Laws of 1987, ch. 403. In State v. Maxfield, we held:
Defendants’ reliance on Rosier to support an argument that *353an individual has a substantial privacy interest in electrical consumption records ignores the language of Rosier itself, as well as its subsequent abrogation. Accordingly, Rosier’s definition of privacy interest as it relates to the public disclosure act is no longer the law in this state.
State v. Maxfield, 125 Wn.2d at 390-91 (footnote omitted). See also State v. Maxwell, 114 Wn.2d at 768.
Maxfield went on to hold that the statute involved here, RCW 42.17.314, applies to law enforcement requests for electrical consumption records. 125 Wn.2d at 391. "The act does not govern the conduct of public utility district employees; it governs the conduct of law enforcement authorities.” 125 Wn.2d at 392. This court, in Maxfield, went on to hold that the purpose of RCW 42.17.314 was to restrict the ability of law enforcement agencies to conduct "fishing expeditions” into the records of particular individuals. "The statute did not create a privacy right in those records.” Maxfield, 125 Wn.2d at 392. Further, the statute does not prohibit a public utility district from disclosing records. Id.
Although electrical usage records held by public utility districts are protected both by statute and case law from "fishing expeditions” by law enforcement, there is no preexisting state law creating a privacy interest in electrical consumption information generally.
The sixth Gunwall factor addresses whether the subject matter is properly a matter of particular state interest or local concern. This factor often overlaps factor four and, where there is such an overlap, the same discussion applies to both factors. Gunwall, 106 Wn.2d at 67; State v. Boland, 115 Wn.2d 571, 585, 800 P.2d 1112 (1990) (Guy, J., dissenting).
The majority states that finding a privacy interest in electrical consumption records is in keeping with our holdings in Young and Gunwall. Majority opinion at 340. In fact, the holding of the majority is not consistent with these and other privacy cases decided by this court. For example, this court has previously held that records show*354ing what telephone numbers an individual has dialed are private matters that are protected by Const, art. I, § 7 from pen register interception by law enforcement. Gunwall, 106 Wn.2d at 69. The Gunwall court determined that the citizens of this state reasonably believe their telephone communications, including the identity of the person called, is a private matter that will not be intruded upon by law enforcement without a warrant. Gunwall, 106 Wn.2d at 68. In Boland, 115 Wn.2d at 581, we held that an individual’s trash is protected from warrantless search and seizure by law enforcement. The court based this decision upon a determination that trash can contain personal effects, such as business records, bills, correspondence, magazines, tax records, and other information about a person’s activities, associations and beliefs, and that people reasonably believe police will not indiscriminately rummage through their trash bags to discover personal effects. Boland, 115 Wn.2d at 578 (citing State v. Tanaka, 67 Haw. 658, 701 P.2d 1274, 1276-77 (1985)).
A statement that power consumption at a particular address appears to be high discloses no discrete information about an individual’s activities, not even the individual’s name. Maxfield, 125 Wn.2d at 396. The customer of electrical power does nothing to create the information held by the power company except consume power. Contrary to the majority opinion at 341, the Maxfields did not disclose power consumption information to the power company. The electrical consumption information was a record of electrical power delivered to the address. This was not information the Maxfields entrusted to the power company. The information disclosed by the PUD employee here revealed only that the amount of power usage was high. It did not identify any activity of the Maxfields. The information did not provide any intimate details of the Max-fields’ lives or identify their friends or political and business associates. Electrical consumption information, unlike telephone or bank records or garbage, does not reveal discrete information about a customer’s activities.
Preexisting law does not demonstrate a history of *355legislative or judicial protection of a general privacy interest in information regarding electrical consumption. Although the State has a particular concern in the conduct of law enforcement officers who want to search utility company records, there is no basis for concluding that the State has a unique concern in protecting electrical consumption records generally.
Therefore, I would hold that briefing of the Gunwall factors by the defendants’ appellate counsel would not have resulted in an independent constitutional analysis in the direct appeal of the Maxfields’ convictions. Defendants’ ineffective assistance of counsel claim should fail.
I would affirm the Court of Appeals.
Durham, C.J., and Dolliver and Talmadge, JJ., concur with Guy, J.
The public utility district employee involved in this case was understandably concerned that two transformers providing service to a garage on the Max-fields’ property had blown due to heavy use. Under the majority opinion, even this information would presumably be constitutionally protected, although the cost of the repeated replacement of the transformers was borne not by the Max-fields but by PUD customers.
State v. Boland, 115 Wn.2d 571, 800 P.2d 1112 (1990) considered whether a police search of defendant’s garbage cans violated Const, art. I, § 7. State v. White, 97 Wn.2d 92, 640 P.2d 1061 (1982) considered whether a police search incident to an unlawful arrest was admissible.