State v. Ringer
| Decision Date | 29 December 1983 |
| Docket Number | 49107-1,Nos. 49022-8,s. 49022-8 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Russell J. RINGER, Petitioner. CITY OF BELLEVUE, Respondent, v. Daniel Eugene CORCORAN, Petitioner. |
Jill A. Salmi, Seattle, for Ringer.
Washington Appellate Defender, Nancy Talner, Seattle, for Corcoran.
Patrick Sutherland, Thurston County Prosecutor, John S. Bumford, Deputy Pros. Atty., Olympia, for State.
Susan Irwin, Richard Kirkby, Asst. Bellevue City Attys., Bellevue, for City of Bellevue.
Washington Association of Prosecuting Attys., Michael G. Redman, Olympia, for amicus curiae.
On November 6, 1979, defendant Ringer was stopped on Interstate 5 by a Washington state trooper and cited for a minor traffic violation. After releasing Ringer, state troopers discovered there was an outstanding felony warrant for his arrest for a violation of the Uniform Controlled Substances Act (RCW 69.50). The state patrol dispatcher put out a radio alert describing Ringer's van. State troopers subsequently found Ringer's van legally parked in the Scatter Creek rest area off the northbound lanes of Interstate 5 in Thurston County.
Three state troopers arrived at the Scatter Creek rest area and Ringer, who was in the van, was ordered over the microphone to get out of the van. He did so, through the side doors of the van, and the officers approached and arrested him. The troopers could see that there were no other occupants in the van. After arresting Ringer, the officers patted him down, handcuffed him, and placed him in a patrol car. They asked what he wanted done with his van, to which he responded that he would like it left there and would have someone pick it up.
During the arrest process, the troopers smelled a strong odor of marijuana coming from the van. After placing Ringer in the police car they decided to search the van both for inventory purposes and to look for weapons and marijuana. Inside they found a small clear bag of marijuana (containing less than 40 grams), two suitcases, a briefcase, a leather bag, and several other items. All of the luggage was closed, but unlocked. The troopers smelled marijuana in one of the suitcases, opened it, and found it full of large bags of marijuana. They then opened the remaining pieces of luggage and discovered cocaine and a bag of psilocybin mushrooms in the leather bag. The troopers seized the marijuana, the briefcase, and the leather bag, but left the other property and did not impound the van.
Ringer was charged with and convicted of (1) possession of a controlled substance (over 40 grams of marijuana); (2) possession of psilocybin; (3) possession of cocaine; and (4) possession of under 40 grams of marijuana.
On the morning of August 7, 1981, Bellevue police officers were advised that probable cause existed to arrest defendant Corcoran for suspicion of boat theft. The Bellevue police were given descriptions of Corcoran and his vehicle. Later that day, Police Officer Baker spotted Corcoran's car leaving a private residence. Officer Baker stopped Corcoran along a public highway.
Corcoran got out of his car and, after discussing the reason he had been stopped, was placed under arrest. He was handcuffed and placed in a patrol car. Meanwhile, another officer arrived and began to search Corcoran's car. In the front seat of the car the second officer discovered a partially open paper bag containing marijuana which Corcoran admitted was his. The report of proceedings does not indicate whether the search of Corcoran's car took place before or after Corcoran was handcuffed and placed in the patrol car. In his brief, however, Corcoran indicates that the search of his car took place after he was arrested.
The trial court found that there was no probable cause to search Corcoran's car but ruled that the search was valid as incident to a lawful arrest. The court then found Corcoran guilty of possession of less than 40 grams of marijuana.
The sole question presented on appeal is whether the search of Ringer's van and Corcoran's car violated U.S. Const. amend. 4 or Const. art. 1, § 7. There seems little doubt that the search of Ringer's van was permissible under U.S. Const. amend. 4. In United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), the United States Supreme Court held that, as long as there was probable cause for the search, a police officer stopping a motor vehicle on a public highway could search both the vehicle and all containers in it without a warrant. Likewise, the search of Corcoran's car does not seem to have violated the federal constitution. In New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the Supreme Court held that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile", and any container found therein. (Footnotes omitted.) Belton, 453 U.S. at 460, 101 S.Ct. at 2864.
Rather than engage in a further analysis as to the applicability of the Fourth Amendment, we instead focus on article 1, section 7 of our state constitution. Cf. State v. White, 97 Wash.2d 92, 640 P.2d 1061 (1982). In construing Const. art. 1, § 7 we look initially to its origins and to the law of search and seizure at the time our constitution was adopted. We next examine the evolution of state court analysis of Const. art. 1, § 7 in light of United States Supreme Court decisions interpreting U.S. Const. amend. 4. Finally, we review our own decisions to discern possible trends in our analysis and federal decisions to provide a historical context and guidance for our doctrinal development. Cf. Michigan v. Long, --- U.S. ----, 103 S.Ct. 3469, 3475-77, 77 L.Ed.2d 1201 (1983) (). We conclude that Const. art. 1, § 7 poses an almost absolute bar to warrantless arrests, searches, and seizures, with only limited exceptions which we will note below.
Const. art. 1, § 7 reads as follows:
No person shall be disturbed in his private affairs, or his home invaded, without authority of law.
The provision was adopted by the Washington State Constitutional Convention in 1889. Journal of Washington State Constitutional Convention, 1889, at 497 (B. Rosenow ed. 1962) (hereinafter cited as Journal ). The constitutional convention was presented with a proposed state provision identical to the fourth amendment to the United States Constitution and rejected it in favor of the present Const. art. 1, § 7. See Journal, at 51, 497. Unfortunately, history provides little guidance to the intention of the framers when they chose the specific language of Const. art. 1, § 7. See generally Journal, at vi-vii. Significantly, however, the framers also adopted Const. art. 27, § 2, which provides:
All laws now in force in the Territory of Washington, which are not repugnant to this Constitution, shall remain in force until they expire by their own limitation or are altered or repealed by the legislature ...
Const. art. 1, § 7 is not inconsistent with prohibitions against warrantless or otherwise arbitrary searches and seizures in effect in Washington Territory at the time the state constitution was adopted. In fact, our state constitutional provision "is declaratory of the common-law right of the citizen not to be subjected to search or seizure without warrant." State v. McCollum, 17 Wash.2d 85, 96, 136 P.2d 165 (1943) (Millard, J., dissenting). Accord, T. Cooley, Constitutional Law 229-33 (3d ed. 1898); F. Lieber, Civil Liberty and Self-Government 59 (3d rev. ed. 1880). The central principles of the common law in this area are best expressed in the English case Entick v. Carrington, 95 Eng.Rep. 807 (KB 1765). They have been summarized by a contemporary commentator as follows:
[E]very official interference with individual liberty and security is unlawful unless justified by some existing and specific statutory or common law rule; any search of private property will similarly be a trespass and illegal unless some recognised lawful authority for it can be produced; in general, coercion should only be brought to bear on individuals and their property at the instance of regular judicial officers acting in accordance with established and known rules of law, and not by executive officers acting at their discretion; and finally it is the law, whether common law or statute, and not a plea of public interest or an allegation of state necessity that will justify acts normally illegal.
P. Polyviou, Search & Seizure 9 (1982). See 10 W. Holdsworth, English Law 667 (1938).
At the time the state constitution was adopted, law enforcement officers were authorized to obtain warrants to make arrests and to search for evidence of certain criminal activity. Code of 1881, §§ 967-68, 1026. No statutory provisions authorized warrantless arrests; nevertheless, law enforcement officials were allowed at common law to make warrantless arrests for a misdemeanor or felony committed in their presence or where probable cause existed that a felony had been committed. 1 J. Stephen, Criminal Law of England 193 (1883); T. Cooley, Constitutional Law 232 (3d ed. 1898); 1 M. Hale, Pleas of the Crown 587 (1st ed. Am.1847) (1st ed. London 1736). It seems universally recognized that warrantless searches were allowed of the person of an arrestee when incident to lawful arrest. See, e.g., Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344, 58 L.Ed. 652 (1914); State ex rel. Murphy v. Brown, 83 Wash. 100, 105-06, 145 P. 69 (1914); Dillon v. O'Brien, 20 L.R.Ir. 300, 316-17 (Ex.D.1887); Leigh v. Cole, 6 Cox Crim.L.Cas. 329, 332 (Oxford Cir.1853).
The common law "search incident to arrest" doctrine seems to have first been recognized in two 19th century English cases. In Leigh v....
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