Jacobsen v. City of Seattle

• Decision Date: 03 February 1983
• Docket Number: No. 48201-2,48201-2
• Citation: 658 P.2d 653,98 Wn.2d 668
• Parties: Edward JACOBSEN, Dianne Wall, Bob Schwartz and Kathleen Kennedy, Respondents, v. CITY OF SEATTLE, the Police Department of the City of Seattle, Seattle Center; Jack Fearey, Director, Seattle Center; Patrick Fitzsimons, Chief of Police, City of Seattle, Appellants.
• Court: Washington Supreme Court

Page 668

98 Wn.2d 668

658 P.2d 653

Edward JACOBSEN, Dianne Wall, Bob Schwartz and Kathleen Kennedy, Respondents, v. CITY OF SEATTLE, the Police Department of the City of Seattle, Seattle Center; Jack Fearey, Director Seattle Center; Patrick Fitzsimons Chief of Police, City of Seattle, Appellants.

No. 48201-2.

Supreme Court of Washington En Banc.

Feb. 3, 1983.

Philip Mortenson, Asst. City Atty., Seattle, for appellants.

Fishel & Seligmann, Robert B. Beckerman, Michael Gendler, Peter J. Eglick, Seattle, for respondents.

DOLLIVER, Justice.

The basic facts of this case are simple and undisputed. There have been frequent violations of the law at various rock concerts held at the Seattle Center Coliseum, including the throwing of hard and dangerous objects by some of those attending the concerts. Plaintiffs and others seeking admission to Seattle Center rock concerts were obliged by the Seattle Police Department to submit to warrantless searches, without probable cause, as a condition of admission.

In 1971 the Seattle Police Department began conducting warrantless pat-down searches of rock concert patrons at the Coliseum. The Seattle Police Department instituted the search policy to curb increasing problems caused by patrons bringing alcoholic beverages, explosive devices, weapons, and other objects into the concerts. The police department determines what qualifies as a rock concert at which the search procedures will be in effect. There are no written policies, regulations, or guidelines which set forth the City's search practices or which guide its police officers in the conduct of searches.

On July 1, 1979, the four plaintiffs attended a concert performed by the Grateful Dead at the Seattle Center Coliseum. Plaintiffs claim unidentified police officers physically searched all but one of them, confiscated heart medicine in an unmarked pill box, removed an unopened pack of cigarettes from a plaintiff's purse, opened the pack, and inspected individual cigarettes. Plaintiffs further claim they were unaware of the police department policy before the search occurred.

The search methods were shown graphically in a videotape of another rock concert which was submitted by the City. They were described as follows by the trial court in its memorandum opinion:

6. The search is performed on nearly every individual by two uniformed police officers who pat-down or frisk the person as she/he enters the concert. Unless materials are seized or a further search is conducted, the initial pat-down normally takes no more than a few seconds.

7. As part of the search, purses or bags are squeezed for hard objects and may be further searched at the officers' discretion. Bottles, cans, containers of alcohol, explosives, controlled substances and other miscellaneous objects are at the officers' discretion seized, confiscated and thrown into a large dumpster. No arrests are made as a result of items seized unless the police believe the person intends to sell a seized controlled substance.

On January 15, 1980, plaintiffs filed a complaint against the City of Seattle asking for a declaratory judgment and an injunction against the alleged unconstitutional searches. The complaint asked $40,000 in damages under 42 U.S.C. § 1983, and attorney fees and costs which are provided for under 42 U.S.C. § 1988. The City's answer raised affirmative defenses of collateral estoppel and res judicata, citing an earlier action brought in United States District Court for Western Washington. The City also counterclaimed for abuse of process claiming the action in the federal court resolved the matter of the constitutionality of rock concert searches.

On October 8, 1981, King County Superior Court Judge Terrence Carroll granted plaintiffs' motion for summary judgment. Judge Carroll ruled the search policy violated the state and federal constitutions and issued a permanent injunction against searches of rock concert patrons absent probable cause to believe that an unlawful act is being committed. During pretrial negotiations, plaintiffs agreed to drop their damage claims in exchange for the City's abandonment of its affirmative defenses and counterclaim. Nevertheless, Judge Carroll awarded plaintiffs attorney fees and costs of $18,271.02. Defendants appeal from the granting of the summary judgment and the award of attorney fees and costs. Plaintiffs cross-appeal from the order reducing their requested attorney fees. We affirm the trial court in all respects.

Initially, defendants argue this matter was improperly decided on a summary judgment and claim there is a genuine issue as to certain material facts. CR 56(c). We have examined each of the contentions made by defendants as to a disputed material fact and find them to be without substance. In each instance, the fact allegedly in dispute was either admitted by defendants or was immaterial and thus not a bar to summary judgment. See Morris v. NcNicol, 83 Wash.2d 491, 519 P.2d 7 (1974).

In State v. Houser, 95 Wash.2d 143, 149, 622 P.2d 1218 (1980), we summarized the requirements of the Fourth Amendment and Const. art. 1, § 7 relative to warrantless searches and seizures.

As a general rule, warrantless searches and seizures are per se unreasonable. Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022 (1971). Nonetheless, there are a few " 'jealously and carefully drawn' exceptions" to the warrant requirement which "provide for those cases where the societal costs of obtaining a warrant, such as danger to law officers or the risk of loss or destruction of evidence, outweigh the reasons for prior recourse to a neutral magistrate." Arkansas v. Sanders, 442 U.S. 753, 759, 61 L.Ed.2d 235, 99 S.Ct. 2586 [2590] (1979). See Jones v. United States, 357 U.S. 493, 499, 2 L.Ed.2d 1514, 78 S.Ct. 1253 [1257] (1958). The burden is on the prosecutor to show that a warrantless search or seizure falls within one of these exceptions. See Arkansas v. Sanders, supra.

The narrow exceptions to the requirement of a warrant are (1) consensual searches ( Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)); (2) stop and frisk searches ( Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)); (3) hot pursuit ( Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967)); (4) border searches ( United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976)); (5) airport and courthouse searches ( United States v. Skipwith, 482 F.2d 1272 (5th Cir.1973); Downing v. Kunzig, 454 F.2d 1230 (6th Cir.1972)). See Gaioni v. Folmar, 460 F.Supp. 10, 13 n. 10 (M.D.Ala.1978).

Defendants do not claim the searches are "stop and frisk searches" (Terry v. Ohio, supra ) or that the plaintiffs consented to be searched. See State v. Carter, 267 N.W.2d 385 (Iowa 1978). They do claim a new exception for rock concerts asserting that warrantless searches at rock concerts are analogous to those at courthouses and at airports. Courts have generally rejected this analogy, e.g., Gaioni v. Folmar, supra; Wheaton v. Hagan, 435 F.Supp. 1134 (M.D.N.C.1977); Collier v. Miller, 414 F.Supp. 1357 (S.D.Tex.1976); Nakamoto v. Fasi, 635 P.2d 946 (Hawaii 1981); contra, Jensen v. Pontiac, 113 Mich.App. 341, 317 N.W.2d 619 (1982), which involved a visual search only and not the physical patdown employed by the police in this case.

While the trial court stated in its memorandum opinion "[t]he record clearly establishes a serious problem and a legitimate basis for the City's concerns", the situations at a rock concert are not comparable to the dangers posed at airports and courthouses. To determine the constitutionality of airport and courthouse searches, courts have considered three factors of public security: efficacy of the search and the degree and nature of the intrusion involved. See United States v. Skipwith, supra (airport); Downing v. Kunzig, supra (courthouse). On the question of public security one court has observed:

Warrantless searches were instituted at airports and in courthouses because of the unprecedented wave of bombings and other acts of violence which inflicted death or serious injury to a large number of persons in the late 1960's and early 1970's. These terrorist efforts to bomb courthouses threatened to undermine the rule of law, while the attempts to blow up airplanes were often linked to aircraft hijackings. As unruly as patrons at the Coliseum might have been and as great a show of violence as might have occurred with the throwing of a bottle at a performer and the successful attempt to prevent a policeman from making an arrest, the dangers posed by these actions are substantially less than those which justified suspending the warrant requirement in courthouse and airport searches. This does not mean that the disruption of Coliseum events is not a cause for alarm or concern, but rather to suggest that other less constitutionally questionable actions should be employed to control the behavior of those attending activities at the Coliseum.

Wheaton v. Hagan, supra at 1145. Furthermore, in contrast to the high degree of intrusion in the pat-down frisk employed by Seattle police, both airport searches which are conducted with a magnetometer and courtroom searches which employ a brief stop and a visual examination of packages, pocketbooks, and briefcases are far less intrusive. Downing v. Kunzig, supra at 1233; United States v. Edwards, 498 F.2d 496 (2d Cir.1974).

We hold highly intensive pat-down searches by police officers of patrons attending rock concerts to be unconstitutional. These searches are not analogous to airport or courthouse searches nor do they come under any other exception to the warrant requirement of the state and federal constitutions. (Parenthetically, we note that even if the consent issue had been raised by defendants it is extremely doubtful, given the circumstances of this case, that they could have prevailed. See Wheaton...