City of Seattle v. Mesiani

• Decision Date: 12 May 1988
• Docket Number: No. 53825-5,53859-0,53825-5
• Citation: 110 Wn.2d 454,755 P.2d 775
• Parties: , 56 USLW 2707 The CITY OF SEATTLE, Respondent, v. Terese MESIANI, et al., Petitioners. C. Steven FURY; William E. Fitzharris, Jr.; Kevin McKinney; Ron Lindsay; William Wasserman; and Marsha Pechman, Petitioners, v. The CITY OF SEATTLE, and Patrick Fitzsimons, Chief of Police for The City of Seattle Police Department, Respondents.
• Court: Washington Supreme Court

Page 454

110 Wn.2d 454

755 P.2d 775, 56 USLW 2707

The CITY OF SEATTLE, Respondent, v. Terese MESIANI, et al., Petitioners.

C. Steven FURY; William E. Fitzharris, Jr.; Kevin

McKinney; Ron Lindsay; William Wasserman; and Marsha Pechman, Petitioners, v. The CITY OF SEATTLE, and Patrick Fitzsimons, Chief of Police

for The City of Seattle Police Department, Respondents.

No. 53825-5, 53859-0.

Supreme Court of Washington En Banc.

May 12, 1988.

[755 P.2d 776] Thomas B. Nast, Seattle, for petitioners Mesiani, et al.

Kenneth S. Kagan, Seattle, for petitioners Guidash, et al.

Davidson, Czeisler & Kilpatric, Dan W. Kilpatric, Kirkland, for petitioners Fury, et al.

Douglas N. Jewett, Seattle City Atty., Douglas M. Whalley, Terrence J. Cullen, Asst. Seattle City Attys., Seattle, for respondent.

UTTER, Justice.

Petitioners in this consolidated appeal challenge the constitutionality of a sobriety checkpoint program established by the Seattle Police Department during the holiday season of 1983-84. Terese Messiani represents a group of defendants charged with criminal violations after being stopped at sobriety checkpoints. C. Steven Fury represents a group of plaintiffs routinely stopped at the sobriety checkpoints without individualized suspicion or probable cause. In both cases the trial court found the sobriety checkpoints violated article 1, section 7 of the Washington Constitution, but the Court of Appeals reversed, holding the checkpoints violated neither the fourth amendment to the United States Constitution nor article 1, section 7. Fury v. Seattle, 46 Wash.App. 110, 730 P.2d 62 (1986). We reverse.

The facts surrounding the establishment and execution of Seattle's sobriety checkpoint program are set out in the decision of the Court of Appeals, 46 Wash.App. at 112, 730 P.2d 62. Police officers at the checkpoints stopped all oncoming motorists without warrants or individualized suspicion of any criminal activity. The locations and times for the checkpoints were designed to stop or deter the maximum

number of intoxicated drivers, giving due consideration to the safety and convenience of drivers. The drivers were asked to show their licenses to give the officers time to observe evidence of intoxication, such as fumbling. Less than 1 percent of the stops resulted in DWI arrests.

ARTICLE 1, SECTION 7

When parties allege violation of rights under both the United States and Washington Constitutions, this court will first independently interpret and apply the Washington Constitution in order, among other concerns, to develop a body of independent jurisprudence, and because consideration of the United States Constitution first would be premature. State v. Coe, 101 Wash.2d 364, 373-74, 679 P.2d 353 (1984). We find the sobriety checkpoint program illegal based on adequate and independent state grounds. Any federal cases cited are used only for the purpose of guidance and do not by themselves compel the result reached.

Const. art. 1, § 7 provides: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." The textual language of article 1, section 7 provides greater protection to individual privacy interests than the Fourth Amendment. State v. Gunwall, 106 Wash.2d 54, 65, 720 P.2d 808 (1986); State v. Stroud, 106 Wash.2d 144, 148-52, 720 P.2d 436 (1986); State v. Myrick, 102 Wash.2d 506, 510, 688 P.2d 151 (1984). Article 1, section 7 protects against warrantless searches and seizures, with no express limitations. State v. Simpson, 95 Wash.2d 170, 178, 622 P.2d 1199 (1980).

The City asserts that the state's interest in the legal operation of automobiles defeats any privacy interest under article 1, section 7. While we acknowledge the state's strong interest in assuring all drivers comply with applicable laws, the City's position is without support in either our cases or the language or logic of our constitution. From the earliest days of the automobile in this state, this court has An individual operating or traveling in an automobile does not lose all reasonable expectation of privacy simply because the automobile and its use are subject to government regulation. Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from one's home, workplace, and leisure activities. Many people spend more hours each day traveling in cars than walking on the streets.

                acknowledged the privacy interest of individuals and objects in automobiles.   State v. Gibbons, 118 Wash. 171, 187, 203 P. 390 (1922);   see State v. Simpson, 95 Wash.2d 170, 622 P.2d 1199 (1980);   see also State v. Marchand, 104 Wash.2d 434, 706 P.2d 225 (1985) (applying the Fourth Amendment).  We agree with the observations of the United States Supreme Court in  Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)
                

Undoubtedly, many find a greater sense of security and privacy in traveling in an automobile than they do in exposing themselves by pedestrian or other modes of travel. Were the individual subject to unfettered governmental intrusion every time he entered an automobile, the security guaranteed by the Fourth Amendment would be seriously circumscribed....

(Footnote omitted.) Prouse, at 662-63, 99 S.Ct. at 1400-01. Sobriety checkpoint stops are searches and seizures under article 1, section 7.

Because sobriety checkpoints involve seizures, they are valid only if there is "authority of law." Article 1, section 7 "unlike any provision in the federal constitution, explicitly protects the privacy rights of Washington citizens, State v. White, 97 Wash.2d 92, 110, 640 P.2d 1061 (1982), and these privacy rights include the freedom from warrantless searches absent special circumstances." Stroud, 106 Wash.2d at 148, 720 P.2d 436. This court recognizes only narrow exceptions to the warrant requirement. Jacobsen v. Seattle, 98 Wash.2d 668, 672, 658 P.2d 653 (1983). Warrantless searches incident to arrests have been allowed, for instance, to prevent destruction of evidence or danger to officers. Stroud, 106 Wash.2d at 152, 720 P.2d 436. The burden is on the City to show that the stop falls within an exception to the warrant requirement. State v. Williams No argument has been presented to this court that would bring the checkpoint program within any possible interpretation of the constitutionally required "authority of law." The Seattle sobriety checkpoint program therefore violated petitioners' rights under article 1, section 7.

102 Wash.2d 733, 736, 689 P.2d 1065 (1984). It has failed to do so. ¹

FOURTH AMENDMENT

Although we dispose of this case on the basis of article 1, section 7, we analyze the Fourth Amendment because that was the basis of the Court of Appeals decision and because our reasoning may assist other courts who do not have state constitutional provisions similar to ours. See State v. Coe, 101 Wash.2d 364, 679 P.2d 353 (1984). We believe the federal constitution does not allow roadblocks based upon the evidence presented to the trial courts in these cases.

In State v. Marchand, 104 Wash.2d 434, 706 P.2d 225 (1985), this court found a "spot check" for drivers' licenses, auto registration and equipment to violate the Fourth Amendment, in part because there was no statutory constraint on the discretion of the police. The sobriety checkpoints here not only lack statutory constraints, but the invasion of the privacy interests of drivers was substantially greater than in Marchand. A seizure to discover evidence of crimes is more "hostile" than an administrative search. Camara v. Municipal Court, 387 U.S. 523, 530, 87 S.Ct. 1727, 1731, 18 L.Ed.2d 930 (1967). Moreover, sobriety checkpoints are highly intrusive subjectively because the officer personally searches the driver for evidence of intoxication, including smelling breath, looking for open containers, and attempting to elicit evidence of lack of dexterity by asking Other jurisdictions have applied, with differing results, the 3-prong balancing test of Brown v. Texas, 443 U.S. 47, 51, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979) to determine whether sobriety checkpoints violate the Fourth Amendment. E.g., State v. Superior Court, 143 Ariz. 45, 691 P.2d 1073 (1984); State v. Smith, 674 P.2d 562 (Okla.Crim.App.1984). "Consideration of the constitutionality of ... seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty." Brown, 443 U.S. at 50-51, 99 S.Ct. at 2640-41.

for a license. Comment, DUI Roadblocks: Drunk Drivers Take a Toll on the Fourth Amendment, 19 J. Marshall L. Rev. 983, 998 (1986); Comment, The Constitutionality of Drunk Driving Roadblocks, 58 U.Colo.L.Rev. 109, 119-120 (1986-87). Seattle's sobriety checkpoint program unconstitutionally gave police officers unbridled discretion to conduct intrusive searches.

This court takes judicial notice "there is no denying the fact that there is a very strong societal interest in dealing effectively with the problem of drunken driving." 4 W. LaFave, Search and Seizure § 10.8(d), at 71. Nevertheless, the City has offered little assistance in balancing interests because it attempts to weigh the national carnage of drunk driving year round against the minimal intrusion on Seattle drivers for a few seconds each. "The easiest and most common fallacy in 'balancing' is to place on one side the entire, cumulated 'interest' represented by the state's policy and compare it with one individual's interest in freedom from the specific intrusion on the other side ..." State v. Tourtillott, 289 Or. 845, 881, 618 P.2d 423 (1980) (Linde, J., dissenting). A fairer balance would weigh the actual expected alleviation of the social ill against the cumulated interests invaded. Moreover, the City has failed to demonstrate the need for sobriety checkpoints or that less intrusive alternatives could not achieve most of...