State v. Blake

CourtUnited States State Supreme Court of Washington
Citation197 Wash.2d 170,481 P.3d 521
Decision Date25 February 2021
Docket NumberNO. 96873-0,96873-0
Parties STATE of Washington, Respondent, v. Shannon B. BLAKE, Petitioner.

197 Wash.2d 170
481 P.3d 521

STATE of Washington, Respondent,
Shannon B. BLAKE, Petitioner.

NO. 96873-0

Supreme Court of Washington.

Argued June 11, 2020
Filed: February 25, 2021

Thomas Michael Kummerow, Richard Wayne Lechich, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Petitioner(s).

Brett Ballock Pearce, Attorney at Law, 1100 W. Mallon Ave., Spokane, WA, 99260-2043, for Respondent(s).

Mark Bruns Middaugh, Attorney at Law, 600 University St. Ste. 3020, Seattle, WA, 98101-4105, for Amicus Curiae on behalf of Washington Association of Criminal Defense Lawyer.

Antoinette M. Davis, American Civil Liberties Union of Washin, Mark Muzzey Cooke, ACLU of Washington, Nancy Lynn Talner, ACLU-WA, Po Box 2728 Seattle, WA, 98111-2728, for Amicus Curiae on behalf of American Civil Liberties Union of Washington Foundation.

Philip James Buri, Buri Funston Mumford & Furlong, PLLC, 1601 F St., Bellingham, WA, 98225-3011, for Amicus Curiae on behalf of Washington Association of Prosecuting Attorneys.

William R. Maurer, Institute For Justice, 600 University St. Ste. 1730, Seattle, WA, 98101-2925, for Amicus Curiae on behalf of Institute for Justice.


197 Wash.2d 173

¶ 1 Washington's strict liability drug possession statute, RCW 69.50.4013, makes possession of a controlled substance a felony punishable by up to five years in prison, plus a hefty fine; leads to deprivation of numerous other rights and opportunities; and does all this without proof that the defendant even knew they possessed the substance. This

481 P.3d 524

case presents an issue of first impression for this court: Does this strict liability drug possession statute with these substantial penalties for such innocent, passive conduct exceed the legislature's police power? The due process clauses of the state and federal constitutions,1 along with controlling decisions of this court and the United States Supreme Court, compel us to conclude that the answer is yes—this exceeds the State's police power.


¶ 2 We begin with the rule that state legislatures have the police power to criminalize and punish much conduct. But the due process clauses of the state and federal constitutions limit that power. The key limit at issue here is that those due process clause protections generally bar state legislatures from taking innocent and passive conduct with no criminal intent at all and punishing it as a serious crime.

197 Wash.2d 174

¶ 3 Unfortunately, that is exactly what RCW 69.50.4013, the strict liability felony drug possession statute, does. And it is the only statute in the nation to do so. We therefore conclude that it violates the state and federal constitutions.

¶ 4 To be sure, at one time, it might have been possible for this court to avoid this constitutional issue by interpreting RCW 69.50.4013 as silently including an intent element and thereby saving it from unconstitutionality. But that time has long since passed. First, in 1981, we held that our legislature intended drug possession to be a strict liability felony in State v. Cleppe . 96 Wash.2d 373, 635 P.2d 435 (1981). Then, 16 years ago, and 23 years after Cleppe , we reiterated Cleppe ’s statutory interpretation holding: that our legislature intended drug possession to be a strict liability felony. State v. Bradshaw , 152 Wash.2d 528, 98 P.3d 1190 (2004). Given the interpretive principles of legislative acquiescence and stare decisis, only the legislature, not the court, can now change the statute's intent.

¶ 5 This court, however, is the one that must evaluate whether that statute comports with constitutional due process guaranties. We have been asked to do that today, and we hold that the statute violates those guaranties. Attaching the harsh penalties of felony conviction, lengthy imprisonment, stigma, and the many collateral consequences that accompany every felony drug conviction to entirely innocent and passive conduct exceeds the legislature's powers.


¶ 6 In 2016, police executed a search warrant in Spokane, Washington, seeking evidence of stolen vehicles. Verbatim Report of Proceedings (VRP) at 19. They arrested three people on the property, including Shannon Blake. Clerk's Papers (CP) at 13; VRP at 40. At the jail, a corrections officer discovered a small baggy containing methamphetamine in the coin pocket of Blake's jeans. VRP at 47-48. The

197 Wash.2d 175

State charged Blake with possession of a controlled substance in violation of RCW 69.50.4013. CP at 18.

¶ 7 At trial, Blake relied on the judicially created affirmative defense of "unwitting possession." She testified that a friend had bought the jeans secondhand and given them to Blake two days before Blake's arrest. VRP at 76. Blake said she had never used methamphetamine and did not know the jeans had drugs in the pocket. Id. She acknowledged that the drugs had been "on [her]" on the day of her arrest. Id. at 83. Blake's boyfriend also testified that Blake did not use drugs and that she had received the jeans from a friend. Id. at 89-90.

¶ 8 The trial court served as trier of fact. CP at 20. It found that Blake had "possess[ed]" methamphetamine on the day in question. CP at 26. Consistent with the law as interpreted in Cleppe and Bradshaw , it did not make any findings as to whether the State had proved that Blake's possession was intentional or knowing. It did conclude, however, that Blake had not met her burden to prove that her possession was unwitting. VRP at 108; CP at 26. Accordingly, the trial court found Blake guilty.

¶ 9 On appeal, Blake argued that "requiring her to prove unwitting possession to [sic] the charged offense violates due process."

481 P.3d 525

State v. Blake , No. 35601-9-III, slip op. at 1, 2019 WL 276047 (Wash. Ct. App. Jan. 22, 2019) (unpublished), Relying on Cleppe and Bradshaw , the Court of Appeals held that "[t]he crime of possession of a controlled substance does not require a mens rea element" and the defense's burden to show unwitting possession does not violate due process. Id. at 6 (citing Bradshaw , 152 Wash.2d at 532, 98 P.3d 1190 ; Cleppe , 96 Wash.2d at 380, 635 P.2d 435 ; State v. Schmeling , 191 Wash. App. 795, 365 P.3d 202 (2015) ).

¶ 10 We granted review. State v. Blake , 194 Wash.2d 1023, 456 P.3d 395 (2020).

197 Wash.2d 176



¶ 11 The basic drug possession statute at issue in this case states, "It is unlawful for any person to possess a controlled substance ...." RCW 69.50.4013(1). The State need not prove any mens rea (mental state) element to secure a conviction for this crime. Bradshaw , 152 Wash.2d at 534-35, 98 P.3d 1190. As we have held for nearly 40 years, "if the legislature had intended guilty knowledge or intent to be an element of the crime ... it would have put the requirement in the act." Cleppe , 96 Wash.2d at 380, 635 P.2d 435.

¶ 12 Blake clearly argues that the constitution bars the legislature from penalizing her conduct without requiring the State to prove she had a guilty mind. Pet'r’s Suppl. Br. at 18 ("[T]he legislature exceeds its power by creating a strict liability offense that lacks a public welfare rationale, has draconian consequences, and criminalizes innocent conduct."). Amici provide additional support for this argument.2 The concurrence dismisses our discussion of this argument by claiming that it was not even briefed. Concurrence at –––– – ––––, –––– – ––––.3 As the citations above and in the

197 Wash.2d 177

footnote below show, the concurrence is incorrect about this and the cited portion of Blake's brief does place a question of first impression4 before us: whether the legislature possesses the power to punish Blake for innocent conduct—or, more accurately, nonconduct—without proving any mental state at all.

A. Due Process Clause Protections Limit the Legislature's Police Power To Criminalize Wholly Innocent and Passive Nonconduct

¶ 13 "States have a legitimate interest in restraining harmful conduct and are empowered to do so under their police powers."

481 P.3d 526

State v. Talley , 122 Wash.2d 192, 199, 858 P.2d 217 (1993) (citing City of Seattle v. Hill , 72 Wash.2d 786, 797, 435 P.2d 692 (1967) ; Minnesota ex rel. Whipple v. Martinson , 256 U.S. 41, 45, 41 S. Ct. 425, 65 L. Ed. 819 (1921) ). In 1936, we said the police power "is an attribute of sovereignty, an essential element of the power to govern, and a function that cannot be surrendered. It exists without express declaration, and the only limitation upon it is that it must reasonably tend to correct some evil or promote some interest of the state,...

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