State v. Meredith, 81203-3-I

CourtCourt of Appeals of Washington
Writing for the CourtVerellen, J.
Docket Number81203-3-I
Decision Date26 July 2021



No. 81203-3-I

Court of Appeals of Washington, Division 1

July 26, 2021


Verellen, J.

Article 1, section 7 of the Washington constitution prohibits warrantless seizures, save for narrow exceptions. Consent is one well-established exception. By boarding a public bus and accepting transportation, Zachery Meredith consented to the conditions of ridership. Those conditions include paying bus fare and complying with a fare enforcement officer's request for proof of payment. Even assuming that Meredith was seized when an officer requested that he provide proof of payment, the officer's request remained within the scope of Meredith's consent. Because Meredith consented to the conditions of ridership and failed to provide proof of payment when requested, the trial court did not err by denying Meredith's motion to suppress evidence gathered by the officer conducting fare enforcement.

Therefore, we affirm.


Zachery Meredith was riding the Swift regional transit bus in Everett late one morning when two officers from the Snohomish County Sheriff's Office boarded to conduct fare enforcement. When conducting fare enforcement, officers would board a bus at a stop and then ask individual passengers for proof of payment while the bus was driving from one stop to the next. A "chase vehicle" would follow the bus to help with identifying and processing anyone ordered off the bus for nonpayment.

Officer Timothy Dalton moved to the back of the bus and began working his way forward and saying "proof of payment or ORCA card" to each passenger in a conversational tone. His partner moved to the front of the bus and worked backward. The bus drove to its next stop while the officers checked for proof of payment. Officer Dalton requested "proof of payment or ORCA card" from Meredith, who began to check his pants and backpack. Meredith could have provided proof of payment either by showing a ticket purchased from a fare machine at a bus stop or by providing an ORCA fare card for the officer to scan with a digital reader. Failure to provide proof of payment could result in a notice of infraction or arrest. The bus continued along its route, and Meredith searched for four or five minutes without producing proof of payment. Officer Dalton ordered him to disembark at the next stop, and they left the bus together.

Officer Dalton asked Meredith for his name and identification. Meredith said he was from Colorado and his name was "Jason McGumery." Officer Dalton radioed dispatch to run the name, and it produced no returns in either Washington or Colorado. Officer Dalton suspected McGumery was a fake name, so Officer Luis Zelaya arrived to help determine Meredith's identity. Officer Zelaya used a mobile fingerprint reader to scan Meredith's prints and then learned Meredith's real name and that he had two outstanding felony warrants. Meredith was arrested on the outstanding warrants and on probable cause of having committed third degree theft of services for nonpayment of fare. He was charged with making a false statement to a public servant.

Pretrial, Meredith moved to suppress evidence resulting from Officer Dalton's fare enforcement. Meredith argued the fare enforcement statute for regional transit authorities, RCW 81.112.210, was unconstitutional under both article I, section 7 of the state constitution and the Fourth Amendment because it authorized a warrantless seizure without lawful justification: Officer Dalton's request for proof of payment. The trial court denied the motion.

A jury found Meredith guilty of making a false statement. The superior court affirmed his conviction on RALJ appeal, concluding Meredith had not been unlawfully seized.

Meredith sought discretionary review. A commissioner of this court granted review pursuant to RAP 2.3(d)(3) to consider the constitutionality of RCW 81.112.210 related to Officer Dalton's initial contact with Meredith by requesting proof of payment or an ORCA card.[1] Following oral argument, the parties were asked to provide supplemental briefing.


Meredith contends Officer Dalton violated article I, section 7 of the Washington Constitution and the Fourth Amendment by effectuating an unauthorized, warrantless seizure when he requested proof of payment or an ORCA card.[2] We presume statutes are constitutional and review challenges to their constitutionality de novo.[3] Meredith has the burden of proving the statute is unconstitutional.[4]

Meredith does not specify which portion of the statute is unconstitutional. He appears to challenge subsection RCW 81.112.210(2)(b)(i), [5] which states: "(b) In addition to the specific powers granted to enforcement officers under RCW 7.80.050 and 7.80.060, persons designated to monitor fare payment also have the authority to take the following actions: (i) Request proof of payment from passengers." When a passenger does not provide proof of payment, a fare enforcement officer is authorized to issue a civil infraction, to demand identification from the passenger, and to remove the passenger from the bus.[6] A police officer conducting fare enforcement can also exercise police powers and is not limited to these actions.[7]

Article I, section 7 provides: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." The State contends no constitutional violation occurred because there is no privacy interest in whether a bus passenger has paid their fare. But article I, section 7 protects against unauthorized seizures by government, despite not using the word "seize."[8] When a warrantless seizure occurs in a crowded public place, it could violate article I, section 7 regardless of whether the government also intruded on a person's "private affairs."[9]

Here, Meredith does not allege his privacy was violated, explaining "the issue is not whether Mr. Meredith was searched, but whether he was seized."[10]We assume without deciding that Officer Dalton's request was a seizure of Meredith. But when the alleged seizure takes the form of asking a person to provide proof of payment on public transit, the application of article I, section 7 does not depend upon the "privacy" of the information requested. Because a person can be unlawfully seized without a violation of their privacy, the State's argument is unavailing.

Typically, article I, section 7 provides greater protection against seizures than the Fourth Amendment.[11] But when determining whether a public transportation passenger was seized, they provide the same degree of protection.[12] The critical question is whether, viewed objectively, a reasonable, innocent person approached by law enforcement "'would feel free to decline the officers' requests or otherwise terminate the encounter.'"[13] Assuming without deciding that Officer Dalton's initial request constituted a warrantless seizure, [14] the question is whether it was authorized by one of "'a few jealously and carefully drawn exceptions.'"[15] The State has the burden of proving an exception applied.[16]

"In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own."[17] A valid consent is a well-recognized exception to the warrant requirement for a seizure.[18] The totality of the circumstances determines whether consent was valid.[19]

Meredith asserts, however, that article I, section 7 does not recognize consent as a valid exception to seizure of a person. He cites City of Seattle v. Mesiani[20] and State v. Thorp[21] to argue consent cannot be an exception in Washington because article I, section 7 authorizes seizure of a person only when a police officer has a warrant or "individualized suspicion to believe the individual is engaged in unlawful activity."[22]

Neither Mesiani nor Thorp support his assertion. Mesiani noted article I, section 7 allows "narrow exceptions to the warrant requirement, "[23] but it did not consider a consent exception because "[n]o argument has been presented to this court that would bring the [sobriety] checkpoint program within any possible interpretation of the constitutionally required 'authority of law.'"[24] Thorp discussed consent only as it related to the administrative search exception for pervasively regulated businesses and did not consider whether consent could authorize a warrantless seizure in another setting.[25]

By contrast, in Farkas v. Williams, the Ninth Circuit concluded a civilian entering a naval base to speak with naval criminal investigative service officers consented to his seizure upon entry.[26] The civilian alleged a seizure occurred because base security required that he store his wallet and other personal items in a lockbox before entering.[27] To enter the base, the civilian passed the "typical trappings" of a military base, such as barbed wire fencing, warning signs, and guarded gates.[28] And the civilian agreed to place his belongings in the lockbox before voluntarily entering.[29] The "objective circumstances" demonstrated the civilian "impliedly consented to the possibility of a Fourth Amendment intrusion," so no constitutional violation occurred.[30] Although Farkas is a Fourth Amendment decision, we find the same logic applicable to article 1, section 7 in this setting of public transportation. Especially where the alleged seizure consists of asking an individual to provide proof of payment for transit, impliedly agreeing to provide proof of payment upon request falls within the consent exception. Because it is well-established that a person can consent to a seizure and Meredith fails to provide contrary authority, his assertion is not persuasive.

To determine whether Meredith validly consented to being seized, we consider whether his consent was voluntary, whether the seizure was limited to the scope of the consent granted, and...

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