State v. Ladson, No. 65801-3

• Court: United States State Supreme Court of Washington
• Writing for the Court: SANDERS; SMITH, JOHNSON, ALEXANDER, JJ., and DOLLIVER; MADSEN; GUY
• Citation: 138 Wn.2d 343,979 P.2d 833
• Parties: STATE of Washington, Respondent, v. Thomas L. LADSON, Petitioner.
• Docket Number: No. 65801-3
• Decision Date: 01 July 1999

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138 Wn.2d 343 979 P.2d 833 STATE of Washington, Respondent,
v.
Thomas L. LADSON, Petitioner. No. 65801-3. Supreme Court of Washington,
En Banc. Argued May 20, 1999.
Decided July 1, 1999.

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Law Offices of Daniel J. Rodriguez, Tacoma, for Petit ioner.

Ed Holm, Thurston County Prosecutor, John M. Jones, Deputy, Olympia, for respondent.

SANDERS, J.

The issue is whether pretextual traffic stops violate article I, section 7, of the Washington Constitution. We find they do and, accordingly, reverse the Court of Appeals and reinstate the trial court's suppression order.

The facts are basically undisputed. On October 5, 1995 City of Lacey police officer Jim Mack and Thurston County sheriff's detective Cliff Ziesmer were on proactive gang patrol. The officers explained they do not make routine traffic stops while on proactive gang patrol although they use traffic infractions as a means to pull over people in order to initiate contact and questioning. The trial court factually found:

While on gang patrol, officer Mack selectively enforces traffic violations depending on whether he believes there is the potential for intelligence gathering in such stops.

Clerk's Papers (CP) at 21 (Findings of Fact in the Ruling of the Court Pursuant to Criminal Rule 3.6 (Apr. 12, 1996) [Findings of Fact] p 1.23).

On the day in question Richard Fogle attracted the attention of officers Mack and Ziesmer as he drove by. Fogle and his passenger Thomas Ladson are both African-American. Although the officers had never seen Ladson before, they recognized Fogle from an unsubstantiated street rumor that Fogle was involved with drugs. The trial court found, "Officer Mack's suspicions about Fogle's reputed drug dealing was his motivation in finding a legal reason to initiate the stop of Fogle's vehicle." CP at 20 (Findings of Fact p 1.20).

The officers tailed the Fogle vehicle looking for a legal justification to stop the car. They shadowed the vehicle while it refueled at a local filling station and then finally pulled Fogle over several blocks later on the grounds that Fogle's license plate tabs had expired five days earlier. The officers do not deny the stop was pretextual.

The police then discovered Fogle's driver's license was suspended and arrested him on the spot. CP at 19 (Findings of Fact pp 1.10, 1.11). After securing Fogle in handcuffs in the squad car, the police conducted a full search of the car "incident to Fogle's arrest." CP at 20 (Findings of Fact p 1.14). Then they turned their attention to the passenger, Thomas Ladson. They ordered Ladson to exit the vehicle, patted him down, and required him to stand against the car while they searched its interior. The police searched Ladson's jacket which was in the passenger's seat and found a small handgun. Ladson was placed under arrest and searched. On Ladson's person and in his jacket the police found several baggies of marijuana and some $600 in cash.

Ladson was charged with unlawful possession of a controlled substance with intent to deliver while armed with a deadly weapon, and possession of a stolen firearm.

Ladson filed a pretrial motion to suppress the evidence on the grounds it was obtained during an unconstitutional pretextual traffic stop. The trial court agreed and granted the motion ruling, "Pretextual stops by law enforcement officers are violative of the Constitution." CP at 21 (Conclusions of Law in the Ruling of the Court Pursuant to Criminal Rule 3.6 (Apr. 12, 1996) p 2.1).

The State appealed and shortly thereafter the United States Supreme Court decided

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Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 1774-76, 135 L.Ed.2d 89 (1996), holding pretextual traffic stops do not violate the Fourth Amendment to the United States Constitution. Accordingly the Court of Appeals, relying on Whren, reversed the suppression order. State v. Ladson, 86 Wash.App. 822, 830, 939 P.2d 223 (1997). However, the Court of Appeals refused to address the state constitutional claim, stating Ladson inadequately briefed the issue. Ladson, 86 Wash.App. at 829, 939 P.2d 223.

Ladson then sought review by this court. His petition for review, which thoroughly addressed the state law issue, argued article I, section 7, of the state constitution provides broader protection than does the Fourth Amendment in the area of pretextual traffic stops and contended article I, section 7, renders pretextual traffic stops unconstitutional. We granted review of that discrete issue. State v. Ladson, 133 Wash.2d 1028, 950 P.2d 476 (1998).

Analysis

Absent controlling precedent, a party asserting a provision of the state constitution offers more protection than a similar provision in the federal constitution must persuade the court this is so by means of the analysis set forth in State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986). Under Gunwall, the court considers six nonexclusive factors. Id. at 61-62, 720 P.2d 808. Once this court has conducted a Gunwall-type analysis and has determined that a provision of the state constitution independently applies to a specific legal issue, in subsequent cases it is unnecessary to repeat the Gunwall-type analysis of the same legal issue. State v. White, 135 Wash.2d 761, 769, 958 P.2d 982 (1998); State v. Hendrickson, 129 Wash.2d 61, 69-70 n. 1, 917 P.2d 563 (1996). It is already well established that article I, section 7, of the state constitution has broader application than does the Fourth Amendment of the United States Constitution. See, e.g., Hendrickson, 129 Wash.2d at 69-70 n. 1, 917 P.2d 563; State v. Stroud, 106 Wash.2d 144, 148, 720 P.2d 436 (1986); Gunwall, 106 Wash.2d at 63-64, 720 P.2d 808; see also State v. Myrick, 102 Wash.2d 506, 510, 688 P.2d 151 (1984). In City of Seattle v. Mesiani, 110 Wash.2d 454, 755 P.2d 775 (1988), article I, section 7, was interpreted independently of the Fourth Amendment in the context of the same legal issue which is present in this case, namely warrantless stops of automobiles for the purpose of investigation. Mesiani, 110 Wash.2d at 457, 755 P.2d 775. Therefore, pursuant to established precedent governing this case, we appropriately turn directly to an examination of article I, section 7.

Washington Constitution article I, section 7

Washington Constitution article I, section 7, provides:

No person shall be disturbed in his private affairs, or his home invaded, without authority of law.

Article I, section 7, is explicitly broader than that of the Fourth Amendment ¹ as it " 'clearly recognizes an individual's right to privacy with no express limitations' " and places greater emphasis on privacy. State v. Young, 123 Wash.2d 173, 180, 867 P.2d 593 (1994) (quoting State v. Simpson, 95 Wash.2d 170, 178, 622 P.2d 1199 (1980)). Further, while the Fourth Amendment operates on a downward ratcheting mechanism of diminishing expectations of privacy, article I, section 7, holds the line by pegging the constitutional standard to "those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant." State v. Myrick, 102 Wash.2d 506, 511, 688 P.2d 151 (1984) (emphasis added).

We begin our analysis by acknowledging the essence of this, and every, pretextual traffic stop is that the police are pulling over a citizen, not to enforce the traffic code, but to conduct a criminal investigation unrelated to the driving. Therefore the reasonable articulable suspicion that a traffic infraction has occurred which justifies an exception to the warrant requirement for an ordinary

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traffic stop does not justify a stop for criminal investigation.

" 'As a general rule, warrantless searches and seizures are per se unreasonable.' " State v. Hendrickson, 129 Wash.2d 61, 70, 917 P.2d 563 (1996) (quoting State v. Houser, 95 Wash.2d 143, 149, 622 P.2d 1218 (1980)). They are, however, subject to "a few ' "jealously and carefully drawn" exceptions' ... which 'provide for those cases where the societal costs of obtaining a warrant ... outweigh the reasons for prior recourse to a neutral magistrate.' " Id. (emphasis added) (quoting Houser, 95 Wash.2d at 149, 622 P.2d 1218 (quoting Arkansas v. Sanders, 442 U.S. 753, 759, 99 S.Ct. 2586, 2590-91, 61 L.Ed.2d 235 (1979), abrogated on other grounds by California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991))).

Exceptions to the warrant requirement fall into several broad categories: consent, exigent circumstances, searches incident to a valid arrest, inventory searches, plain view, and Terry ² investigative stops. Hendrickson, 129 Wash.2d at 71, 917 P.2d 563 (citing Robert F. Utter, Survey of Washington Search and Seizure Law: 1988 Update, 11 U. Puget Sound L.Rev. 411, 528-80 (1988)). The burden is always on the state to prove one of these narrow exceptions. Hendrickson, 129 Wash.2d at 71, 917 P.2d 563.

The warrant requirement is especially important under article I, section 7, of the Washington Constitution as it is the warrant which provides the "authority of law" referenced therein. Mesiani, 110 Wash.2d at 457, 755 P.2d 775. Absent a warrant, "[w]e have recognized that well-established principles of the common law may in some cases be sufficient to provide the authority of law required by Const. art. 1, § 7." City of Seattle v. McCready, 123 Wash.2d 260, 273, 868 P.2d 134 (1994). However, neither party argues a common law exception to the overall warrant requirement for investigatory stops.

At issue in this case is a traffic stop. Whether pretextual or not, a traffic stop is a "seizure" for the purpose of constitutional analysis, no matter how brief. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979); Whren, 517 U.S. at 809-10, 116 S.Ct. 1769; Mesiani, 110 Wash.2d at 460, 755 P.2d 775 (Dolliver, J., concurring). An ordinary traffic stop has been analogized by federal courts to investigative detention subject to the...