¶26
(concurring in result) —Although I agree with the result, I disagree with the majority’s rejection of the “private search” doctrine. Indeed, evidence from private searches commonly form the evidence used to prosecute criminal conduct in this state. To reject the doctrine in all cases, as the majority does, is unwarranted by our case law and by common sense. I respectfully dissent.
Madsen, J.¶27 The private search doctrine provides that where a private actor conducts a search, the State may conduct a warrantless search if the State does not expand the scope of the private search. Walter v. United States, 447 U.S. 649, 100 S. Ct. 2395, 65 L. Ed. 2d 410 (1980). First espoused in Walter, the doctrine was later applied in United States v. Jacobsen, 466 U.S. 109, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984), to uphold a warrantless search. Underlying this doctrine is the premise that an individual’s expectation of privacy is destroyed when the private actor conducts his search. Id. at 119. When the individual no longer has an expectation of privacy, the State does not conduct a “search” within the meaning of the Fourth Amendment to the United States Constitution. Id.
*642¶28 In Jacobsen, the Supreme Court held a search of a package by the police did not violate the Fourth Amendment so long as it did not exceed the scope of a prior private search. Id. at 120. There the defendant mailed cocaine concealed by eight layers of wrappings via Federal Express. Id. at 111. Federal Express opened the package in accordance with its procedures, discovered the package contained cocaine, and notified the DEA (Drug Enforcement Administration). Id. Federal Express placed the cocaine back in the box, just as it had found it, and the DEA pulled the cocaine out of the box without obtaining a warrant. Id. The Supreme Court held this search did not violate the Fourth Amendment because “[defendants] could have no privacy interest in the contents of the package, since it remained unsealed and since the Federal Express employees had just examined the package and had, of their own accord, invited the federal agent to their offices for the express purpose of viewing its contents.” Id. at 119 (emphasis added).
f 29 In State v. Dold, 44 Wn. App. 519, 522, 722 P.2d 1353 (1986), the Court of Appeals, relying on Jacobsen, held a police search of a private letter was not unconstitutional where the letter had been previously opened by a nonstate actor. The police received a previously opened piece of mail, addressed to the defendant, in an envelope with no return address. Id. at 521-22. The letter indicated Dold was trafficking in marijuana and LSD (lysergic acid diethylamide). Id. Dold was subsequently investigated and charged with violation of the Uniform Controlled Substances Act, chapter 69.50 RCW. Id. at 522.
¶30 Contrary to the majority’s assertion, the differences between article I, section 7 of the Washington State Constitution and the Fourth Amendment do not justify rejection of the “private search” doctrine under all circumstances. The determination of what constitutes private affairs under article I, section 7 “focuses on those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent *643a warrant.” State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151 (1984). It can hardly be said that our citizens have, or are entitled to have, an expectation that they retain a privacy interest in evidence of a crime obtained by a private actor and delivered to the police.11 Indeed, the “silver platter”12 doctrine, accepted by this court as being an exception to the warrant requirement of article I, section 7, provides for the use of evidence obtained in violation of this state’s warrant requirement even though under that doctrine it is law enforcement officers from a foreign jurisdiction who have obtained the evidence. In re Pers. Restraint of Teddington, 116 Wn.2d 761, 772, 808 P.2d 156 (1991) (rejecting article I, section 7 challenge to evidence obtained by federal officers pursuant to federal constitutional standards; holding evidence admissible notwithstanding the dictates of our state constitution); State v. Bradley, 105 Wn.2d 898, 719 P.2d 546 (1986) (article I, section 7 does not require exclusion of evidence seized by federal officials when the seizure comported with the federal constitution even if the evidence was obtained in violation of the state constitution). Given that the silver platter doctrine applies under article I, section 7, it follows that the private search doctrine must similarly apply under the state constitution.
¶31 I concur in the result reached by the majority, though, because the evidence here was not delivered to the police. As pointed out by Justice Charles Johnson, it is the delivery of evidence to the police by the private actor that is of determinative importance to the application of the private search doctrine.
*644When a private party acting independently of the government conducts a search and delivers the material to the police, neither the Fourth Amendment, nor Article I, Section 7 require the police to obtain a search warrant before examining the material if the government search does not exceed the scope of that previously conducted by the private party.
Charles W. Johnson, Survey of Washington Search and Seizure Law: 2005 Update, 28 Seattle U. L. Rev. 467, 711 (2005) (emphasis added).
¶32 Each of the cases applying this principle includes the element of possession and delivery of the searched property. E.g., Jacobsen, 466 U.S. 109; Walter, 447 U.S. 649 (holding no constitutional search occurred when a series of boxes were delivered to the wrong party and opened by that party, and the contents searched prior to turning the boxes over to the police); Dold, 44 Wn. App. 519; State v. Bishop, 43 Wn. App. 17, 714 P.2d 1199 (1986) (a security guard found and seized packages of heroin in the defendant’s hospital room; no illegal search occurred when the police reopened the packages and tested the material).
¶33 But in the case of a residential search, the private actor cannot deliver the house to the police. This is true here. Michael Piper did not deliver the house to the police and neither Piper nor the detectives ever had possession of the house.13 Therefore, the private search doctrine espoused in Jacobsen and Bold is inapplicable here.
¶34 In addition, the private search doctrine does not apply when an individual allows another to enter his or her home. Unlike the situation when a private individual opens a letter or a misdelivered package, or a company opens a box in its possession pursuant to company policy, the individual retains his or her privacy interest in the home when allowing another person to enter the home.
¶35 Unlike the majority, I would not reject the private search doctrine but would hold instead that the doctrine *645does not apply to a search of an individuars home because the legitimate expectation of privacy in an individual’s home is not destroyed simply because another person has entered the interior of the home.
C. Johnson, J., concurs with Madsen, J.
The majority relies on State v. Boland, 115 Wn.2d 571, 800 P.2d 1112 (1990), to support its assertion that the private search doctrine does not apply under the state constitution. However, Boland involved a police search, not a private search, and, therefore, is inapposite. The other case relied upon by the majority is State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986). Gunwall is also inapplicable for the same reason; the police requested the phone records in that case.
The doctrine has changed significantly since it was coined in Lustig v. United States, 338 U.S. 74, 78-79, 69 S. Ct. 1372, 93 L. Ed. 1819 (1949). See State v. Fowler, 157 Wn.2d 387, 396, 139 P.3d 342 (2006) (discussing development of the doctrine).
A different question would be presented if Piper had removed the garbage bag of contraband and presented it, outside of the home, to the police. Although this may ñt within the private search doctrine, the question is not presented here.