State v. Day

• Citation: 161 Wn.2d 889,168 P.3d 1265
• Decision Date: 11 October 2007
• Docket Number: No. 78187-7.,78187-7.
• Parties: STATE of Washington, Respondent, v. Charlie Bernnett DAY, Petitioner.
• Court: United States State Supreme Court of Washington

168 P.3d 1265

161 Wn.2d 889

STATE of Washington, Respondent, v. Charlie Bernnett DAY, Petitioner.

No. 78187-7.

Supreme Court of Washington, En Banc.

Argued January 23, 2007.

Decided October 11, 2007.

Dennis W. Morgan, Attorney at Law, Ritzville, WA, for Petitioner.

Office of Benton County Prosecuting Attorney, Attorney at Law, Angelica J. McGaha, Attorney at Law, Kennewick, WA, for Respondent.

CHAMBERS, J.

¶ 1 Benton County Sheriff's Deputy Jeff Hayter was driving on patrol one Sunday morning. The deputy saw a car backed into shrubbery along the Yakima River in an "improved access facility," where parked vehicles are supposed to display parking permits.¹ RCW 77.32.380. Deputy Hayter testified he approached the car to check whether there was a permit. As Deputy Hayter approached, he saw Charlie Day sitting in the car with his head moving as if he was looking for something. As Deputy Hayter got closer, he started to suspect the car were associated with drug use because it was cluttered with cigarette lighters and rubber gloves, among other things. Of immediate interest to Deputy Hayter, however, was an empty handgun case on the floor near Day's feet.

¶ 2 Deputy Hayter asked Day if there was a gun in the car. Day said there was. Day was cooperative but Deputy Hayter (he later testified) nonetheless became concerned for his safety and asked Day to step out of the car. Day did. Deputy Hayter frisked Day, handcuffed him, and asked where the gun was. Day said it was behind the passenger seat where his wife was sitting. Deputy Hayter then asked Alice Day² to exit the vehicle and frisked her as well, while telling both Days they were not under arrest. After another officer arrived, Deputy Hayter searched the car and found the handgun under the passenger seat.

¶ 3 Dispatch reported the gun was stolen and there was an outstanding arrest warrant for Alice Day. Deputy Hayter arrested the couple, conducted a search incident to arrest, and discovered evidence of methamphetamine manufacturing in the vehicle. Based on that evidence, Day was charged and convicted of manufacturing methamphetamine.

¶ 4 Day argues that the officer exceeded his authority under the Washington State Constitution by stopping and searching him merely on suspicion of a parking infraction and, therefore, that the fruits of that search must be suppressed and his conviction vacated for lack of lawful evidence. Whether the officer acted with authority of law turns on whether the Terry³ exception to the warrant requirement, which allows an officer to stop and frisk a person without a warrant or probable cause under certain limited circumstances, applies to these circumstances. The Court of Appeals found it did and affirmed Day's conviction. State v. Day, 130 Wash. App. 622, 627, 124 P.3d 335 (2005). We granted Day's petition for review, State v. Day, 158 Wash.2d 1009, 143 P.3d 830 (2006), and reverse.

ANALYSIS

¶ 5 The trial court denied Day's motion to suppress evidence seized in the search. We review the trial court's conclusions of law de novo. State v. Mendez, 137 Wash.2d 208, 214, 970 P.2d 722 (1999) (citing State v. Johnson, 128 Wash.2d 431, 443, 909 P.2d 293 (1996)).

¶ 6 The right to be free from searches by government agents is deeply rooted into our nation's history and law, and it is enshrined in our state and national constitutions. The United States Constitution prohibits unreasonable searches and seizures; our state constitution goes further and requires actual authority of law before the State may disturb the individual's private affairs. U.S. CONST. amend. IV; CONST. art. I, § 7; see also State v. Evans, 159 Wash.2d 402, 150 P.3d 105 (2007); State v. Boland, 115 Wash.2d 571, 577-78, 800 P.2d 1112 (1990); State v. Myrick, 102 Wash.2d 506, 510, 688 P.2d 151 (1984). Generally, officers of the State must obtain a warrant before intruding into the private affairs of others, and we presume that warrantless searches violate both constitutions. That presumption can be rebutted if the State shows a search fell within certain "narrowly and jealousy drawn exceptions to the warrant requirement." State v. Stroud, 106 Wash.2d 144, 147, 720 P.2d 436 (1986); see also State v. Duncan, 146 Wash.2d 166, 171-72, 43 P.3d 513 (2002) (citing State v. Williams, 102 Wash.2d 733, 736, 689 P.2d 1065 (1984)).

¶ 7 Our state constitution goes beyond the Fourth Amendment's prohibition on "unreasonable" searches and seizures. However, reasonableness does have a role to play in defining the constitutional term "private affairs" in article I, section 7. We do not exclude evidence that was in open or plain view. State v. Kull, 155 Wash.2d 80, 85, 118 P.3d 307 (2005). Consent and certain exigent circumstances may also justify a warrantless search and seizure. Charles W. Johnson, Survey of Washington Search and Seizure Law: 2005 Update, 28 Seattle U.L.Rev. 467, 633, 650 (2005); see also State v. Hendrickson, 129 Wash.2d 61, 71, 917 P.2d 563 (1996).

¶ 8 But we jealously guard these exceptions lest they swallow what our constitution enshrines. Cf. State v. O'Neill, 148 Wash.2d 564, 584-85, 62 P.3d 489 (2003) (citing Wayne A. Logan, An Exception Swallows a Rule: Police Authority to Search Incident to Arrest, 19 YALE L. & POL'Y REV. 381 (2001) (comparing Washington's narrower search incident to arrest exception to its federal counterpart)). See also Coolidge v. New Hampshire, 403 U.S. 443, 454, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (quoting Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 2 L.Ed.2d 1514 (1958)). If the evidence was seized without authority of law, it is not admissible in court. We suppress such evidence not to punish the police, who may easily have erred innocently. We suppress unlawfully seized evidence because we do not want to become knowingly complicit in an unconstitutional exercise of power. See generally Olmstead v. United States, 277 U.S. 438, 484-85, 48 S.Ct. 564, 72 L.Ed. 944 (1928) (Brandeis, J., dissenting).⁴

¶ 9 The State asks us to extend one of our carefully drawn exceptions to the warrant requirement to parking infractions generally. Officers may briefly, and without warrant, stop and detain a person they reasonably suspect is, or is about to be, engaged in criminal conduct. This exception to the warrant requirement is often referred to as a "Terry stop." E.g., Mendez, 137 Wash.2d at 223, 970 P.2d 722. While Terry does not authorize a search for evidence of a crime, officers are allowed to make a brief, nonintrusive search for weapons if, after a lawful Terry stop, "a reasonable safety concern exists to justify the protective frisk for weapons" so long as the search goes no further than necessary for protective purposes. Duncan, 146 Wash.2d at 172, 43 P.3d 513. This brief, nonintrusive search is often referred to as a "Terry frisk." E.g., State v. Glossbrener, 146 Wash.2d 670, 680, 49 P.3d 128 (2002). If the initial stop is not lawful or if the search exceeds its proper bounds or if the officer's professed belief that the suspect was dangerous was not objectively believable,⁵ then the fruits of the search may not be admitted in court. Id. at 682, 684-85, 49 P.3d 128; State v. Kennedy, 107 Wash.2d 1, 9, 726 P.2d 445 (1986).

¶ 10 A Terry investigative stop only authorizes police officers to briefly detain a person for questioning without grounds for arrest if they reasonably suspect, based on "specific, objective facts" that the person detained is engaged in criminal activity or a traffic violation. Duncan, 146 Wash.2d at 172-74, 43 P.3d 513 (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Terry investigative stop exception was first adopted under the Fourth Amendment to the United States Constitution, which forbids "unreasonable" searches and seizures, implicitly recognizing the State's police power to conduct "reasonable" ones. Terry, 392 U.S. at 20, 88 S.Ct. 1868; Johnson, supra, at 598. It was later (largely) accepted as an exception under article I, section 7 of the Washington Constitution. State v. Hobart, 94 Wash.2d 437, 441, 617 P.2d 429 (1980); State v. Lesnick, 84 Wash.2d 940, 942-43, 530 P.2d 243 (1975).

¶ 11 Article I, section 7, does not use the words "reasonable" or "unreasonable." Instead, it requires "authority of law" before the State may pry into the private affairs of individuals. CONST. art. I, § 7. Washington's adoption of the Terry investigative stop exception is grounded upon the expectation of privacy. Our constitution protects legitimate expectations of privacy, "those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant." Myrick, 102 Wash.2d at 511, 688 P.2d 151. Whether the Fourth Amendment or article I, section 7 of the Washington Constitution is in issue, a detaining officer must have "a reasonable, articulable suspicion, based on specific objective facts, that the person seized has committed or is about to commit a crime." Duncan, 146 Wash.2d at 172, 43 P.3d 513 (citing Terry, 392 U.S. at 21, 88 S.Ct. 1868). Under the Fourth Amendment, whether the officer had grounds for a Terry stop and search is tested against an objective standard. Johnson, supra, at 598. See also Whren v. United States, 517 U.S. 806, 813-16, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) (pretextual traffic stops do not violate the Fourth Amendment). By contrast, under article I, section 7, we consider the totality of the circumstances, including the officer's subjective belief. See State v. Ladson, 138 Wash.2d 343, 358-59, 979 P.2d 833 (1999); Kennedy, 107 Wash.2d at 6, 726 P.2d 445. Our constitution does not tolerate pretextual stops. Ladson, 138 Wash.2d at 352, 979 P.2d 833.

¶ 12 Terry has also been extended to traffic infractions, "due to the law enforcement exigency created by the ready mobility of vehicles and governmental interests in ensuring safe travel, as evidenced in the broad regulation of most forms of...