State v. Barker, 22383-0-II.

• Decision Date: 17 December 1999
• Docket Number: No. 22383-0-II.,22383-0-II.
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Appellant, v. Todd D. BARKER, Respondent.

990 P.2d 438

98 Wash.App. 439

STATE of Washington, Appellant, v. Todd D. BARKER, Respondent.

No. 22383-0-II.

Court of Appeals of Washington, Division 2.

December 17, 1999.

Reconsideration Denied January 11, 2000.

Richard Alan Melnick, Clark Co. Deputy Pros. Atty., Vancouver, for Appellant.

William Kennard Thayer, Schauerman and Thayer, Vancouver, for Respondent.

MORGAN, J.

The question is whether evidence resulting from an arrest should be suppressed not because of any constitutional violation, but because the arresting officer lacked statutorily required training. The answer is no.

A police officer can exercise "peace officer powers"¹ if he or she is a "general authority Washington peace officer,"² a "limited authority Washington peace officer,"³ a "specially commissioned Washington peace officer,"⁴ or a "[f]ederal peace officer."⁵ A police officer can also act as a private citizen under some circumstances.⁶ According to both parties, this case involves a "[s]pecially commissioned Washington peace officer[.]"⁷ Such an officer is one "commissioned by a general authority Washington law enforcement agency to enforce some or all of the criminal laws of the state of Washington, who does not qualify under this chapter as a general authority Washington peace officer for that commissioning agency, specifically including ... specially commissioned full-time, fully compensated peace officers duly commissioned by the states of Oregon or Idaho."⁸ "A specially commissioned Washington peace officer who has successfully completed a course of basic training prescribed or approved for such officers by the Washington state criminal justice training commission may exercise any authority which the special commission vests in the officer, throughout the territorial bounds of the state, outside of the officer's primary territorial jurisdiction under the following circumstances: (1) The officer is in fresh pursuit, as defined in RCW 10.93.120; or (2) [t]he officer is acting pursuant to [a] mutual law enforcement assistance agreement between the primary commissioning agency and the agency with primary territorial jurisdiction."⁹ The WSP is a "general authority Washington law enforcement agency."¹⁰

In April 1996, the Oregon State Police (OSP), as "primary commissioning agency," and the Washington State Patrol (WSP), as "the agency with primary territorial jurisdiction," were parties to a "mutual law enforcement assistance agreement." Their agreement did not include any training requirements.

On April 18, 1996, OSP Officer Kathryn Wall was routinely patrolling I-205, a freeway that links Oregon and Washington by means of a bridge over the Columbia River.

The river is the boundary between the two states at that location.

As a 14-year veteran of the OSP, Wall had successfully completed basic police officer training and subsequent annual training in Oregon. She had not, however, completed "a course of basic training prescribed or approved... by the Washington state criminal justice training commission."¹¹ She was specially commissioned by the WSP under the OSP-WSP mutual assistance agreement.

At 11:24 p.m., Wall was northbound on I-205, some distance south of the Columbia River bridge. She observed that one of the cars in front of her was travelling approximately 100 mph, following other vehicles too closely, and making unsafe lane changes. She was unable to catch the car before it reached the bridge. She tried to stop it on the bridge, but it continued into Washington.

The car stopped a few yards north of the bridge, near the exit to Highway 14 in Vancouver. Wall identified the driver as Todd Barker and called the WSP for assistance. When a WSP trooper arrived, he arrested Barker for driving in Washington while under the influence of intoxicants (DUI).¹²

The State of Washington filed a DUI charge in Clark County District Court. Barker moved before trial to suppress all evidence resulting from Wall's stop. He did not claim that Wall lacked probable cause to stop him for reckless driving in Oregon. He did claim, however, that Wall lacked authority to stop him in Washington because she had not completed "a course of basic training prescribed or approved ... by the Washington State Criminal Justice Training Commission."¹³ Based on this void in Wall's training, he contended explicitly that she had stopped him illegally, and, implicitly but necessarily, that the illegality ought to be remedied by applying the exclusionary rule.

After a hearing, the district court concluded that "[t]he observations of Officer Wall would be sufficient to establish probable cause for defendant's traffic infractions of speed, improper lane changes and following too closely[,] and the crime of reckless driving."¹⁴ It also concluded, however, that "[w]ithout proof that the Oregon State Police Officers' basic training has been approved by the Wash. St.Crim. Just. Train. Comm., Officer Wall had no authority to stop and detain defendant ... as otherwise would have been provided by RCW 10.93.020(5) and RCW 10.93.090."¹⁵ Based on the latter conclusion, it suppressed the evidence and dismissed the charge.¹⁶ The superior court affirmed, and we granted discretionary review.

On appeal, Barker again claims, necessarily, (a) that Wall stopped him illegally, and (b) that the illegality should be remedied by applying the exclusionary rule.¹⁷ We examine these propositions separately.¹⁸

I.

The first proposition has two parts. (A) Was Wall's stop constitutionally illegal? (B) Was Wall's stop statutorily illegal?

A.

The first part involves two questions. (1) Was Wall's stop constitutional to the extent she was acting as a police officer? (2) Was Wall's stop constitutional to the extent she was acting as a private citizen?

The answer to the first question is yes. The federal and state constitutions require that a police officer have probable cause to arrest.¹⁹ They do not require, under the circumstances present here, that a police officer have a warrant to arrest.²⁰ It is undisputed that Wall had probable cause to arrest Barker for the driving she observed in Oregon.²¹ Hence, Wall's stop was constitutional to the extent she was acting as a police officer.

The answer to the second question is yes also. The Fourth Amendment to the United States Constitution and Article I, section 7 of the Washington Constitution govern the conduct of police officers, but not the conduct of private citizens.²² Hence, Wall's stop was constitutional to the extent she was acting as a private citizen.²³

B.

Although Wall's stop was constitutional, it was not authorized by Washington statute. RCW 10.93.090 provides, as we have already seen, that a specially commissioned Washington peace officer "who has successfully completed a course of basic training prescribed or approved for such officers by the Washington state criminal justice training commission" may exercise authority under a special commission. By necessary implication, an officer who has not successfully completed such training may not exercise authority under a special commission. Because Wall had not completed such training, she was not entitled to exercise authority under a special commission.

The State argues that RCW 10.93.090 "was enacted to address the usual situation involving reserve officers," but not "to restrict the authority of fully commissioned officers from other states who are pursuing people into this state."²⁴ Whether or not that approach is sensible, it is not what the statute says, and we have no authority to amend the statute.²⁵ Moreover, as Barker essentially argues, the legislature may have intended to give this state's criminal justice training commission the ability to insure that Oregon and Idaho include in their police training programs a segment on how Washington law differs from their law.

The State further responds that the mutual assistance agreement between WSP and OSP eliminated all training requirements simply because it omitted them. RCW 10.93.130 provides that when two agencies form a mutual assistance agreement, "[t]he agency with primary territorial jurisdiction may require that officers from participating agencies meet reasonable training or certification standards or other reasonable standards." Like Barker and both courts below, we think that RCW 10.93.090 sets a basic training requirement that can be supplemented, but not eliminated, by more advanced requirements contained in a mutual assistance agreement. Concluding this part of our discussion, we hold that Wall violated RCW 10.93.090, but not the federal or state constitution.

II.

The remaining question is whether Wall's failure to comply with RCW 10.93.090 should be remedied by applying the exclusionary rule.²⁶ As indicated at the outset, the answer is no.

When a violation of law is statutory but not constitutional, authorities like Weeks v. United States,²⁷ Mapp v. Ohio,²⁸ and State v. Gibbons²⁹ are not implicated. In Weeks the United States Supreme Court announced an exclusionary rule for Fourth Amendment violations. In Mapp, the same court applied its rule to the states. In Gibbons, the Washington Supreme Court fashioned an exclusionary rule for violations of Article I, § 7 of the Washington Constitution.

When a violation of law is statutory but not constitutional, the court's initial task is the same as it always is when determining the meaning and effect of a statute: To carry out the legislature's intent, if that intent can be discerned.³⁰ If the legislature manifested an intent that the violation be remedied by excluding evidence, that intent controls.³¹ If the legislature manifested an intent that the violation not be remedied by excluding evidence, that intent likewise controls.³² If the legislature failed to address the question of remedy, or failed to manifest an intent that can be discerned, it left a void in the law that a court must cope with by analyzing and applying common law.³³

The Washington ca...