State v. Walker

• Citation: 157 Wn.2d 307,138 P.3d 113
• Decision Date: 13 July 2006
• Docket Number: No. 76743-2.,76743-2.
• Parties: STATE of Washington, Respondent, v. Ashley Marie WALKER, Petitioner.
• Court: United States State Supreme Court of Washington

138 P.3d 113

157 Wn.2d 307

STATE of Washington, Respondent, v. Ashley Marie WALKER, Petitioner.

No. 76743-2.

Supreme Court of Washington, En Banc.

Argued January 24, 2006.

Decided July 13, 2006.

COPYRIGHT MATERIAL OMITTED

Steven P. Martonick, Snyder & Martonick Law Offices, Pullman, for Petitioner/Appellant.

Byron Bedirian, Whitman County Prosecutor's Office, Colfax, for Appellee/Respondent.

Pamela Beth Loginsky, Washington Assoc. of Prosecuting Attorneys, Olympia, for Amicus Curiae Washington Association of Prosecuting Attorneys.

Suzanne Lee Elliott, Seattle, for Amicus Curiae Washington Association of Criminal Defense Lawyers.

C. JOHNSON, J.

¶ 1 This case involves a constitutional challenge to RCW 10.31.100(1), which codifies and expands the common law rule allowing for warrantless misdemeanor arrests only when the misdemeanor occurs in the officer's presence. The statute authorizes warrantless arrests in certain circumstances. In this case, the petitioner was arrested without a warrant for a misdemeanor involving the use of cannabis not occurring in the presence of the officer. In a search incident to the arrest, methamphetamine was discovered in the petitioner's purse. Petitioner moved to suppress the methamphetamine evidence, arguing the underlying arrest was unlawful. The trial court granted the petitioner's motion and the Court of Appeals reversed. We affirm the appellate court's decision, but on different grounds. We hold RCW 10.31.100(1) does not violate article 1, section 7 of the Washington State Constitution.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 On July 11, 2003, Colfax police officers and Whitman County deputies were called to investigate a burglary. During their investigation, the officers approached a parked car in which petitioner Ashley Walker and another individual, Richard Kennedy, were sitting. According to the police report of Deputy Keith Cooper, the following transpired:

I asked Kennedy and Walker if they had been drinking. Kennedy said he had been drinking. Walker said she did not drink. While talking to Kennedy I noticed the pupils of his eyes were extremely dialated [sic]. I asked If [sic] they had smoked any marijuana. Kennedy said he could not use drugs because he took random urinary analysis. Walker said she smoked marijuana before she left her house in Spokane. I asked if she had any marijuana with her. Walker said she did not have any marijuana. Walker said she had a marijuana pipe in her bag. I asked Walker if she would get the pipe for me. Walker opened her purse and pulled out a blue glass pipe and handed it to me. Walker immediatly [sic] closed her purse after she gave me the pipe. I looked at the pipe and noticed black residue in the bowl of the pipe.

I told Officer Szambelan Walker gave me a pipe she had in her purse. Officer Szambelan told Walker to stand up and told her she was under arrest for possession of drug paraphernalia.¹ He placed her in handcuffs and advised her of her CR's. Officer Szambelan placed her in the seat of his patrol car. Officer Szambelan searched Walker's purse incident to lawful arrest. Upon searching her purse he located 2 glass pipes. He also found numerous small plastic baggies containing a white powdery substance.

Clerk's Papers at 12-13. The white powdery substance found in Walker's purse was methamphetamine. Walker was charged with one count of possession of methamphetamine with intent to deliver. Walker brought a motion in superior court to suppress the methamphetamine evidence, arguing the underlying arrest was unlawful. After oral argument, the court granted Walker's motion and dismissed the charges. The court reasoned that the crime for which Walker was charged, RCW 69.50.412(1),² was not specific to cannabis; therefore, the cannabis exception of RCW 10.31.100(1) did not apply. In an unpublished opinion, the Court of Appeals reversed, holding that RCW 10.31.100(1) applied and sufficient probable cause supported the arrest. State v. Walker, noted at 125 Wash.App. 1039, 2005 WL 291520 (2005). In a concurring opinion, Judge Stephen M. Brown noted it was immaterial the officer told Walker she was under arrest for possession of paraphernalia when in fact she was arrested for use of drug paraphernalia. Walker petitioned this court for discretionary review, which we accepted at 155 Wash.2d 1008, 122 P.3d 912 (2005).

ISSUE PRESENTED

¶ 3 Does RCW 10.31.100(1) create a valid exception to the common law "in the presence" requirement for warrantless misdemeanor arrests under article 1, section 7 of the state constitution.

ANALYSIS

¶ 4 RCW 10.31.100(1) reads:

[a]ny police officer having probable cause to believe that a person has committed or is committing a misdemeanor or gross misdemeanor, involving physical harm or threats of harm to any person or property or the unlawful taking of property or involving the use or possession of cannabis, or involving the acquisition, possession, or consumption of alcohol by a person under the age of twenty-one years under RCW 66.44.270, or involving criminal trespass under RCW 9A.52.070 or 9A.52.080, shall have the authority to arrest the person.

¶ 5 Walker argues this statute is unconstitutional under article 1, section 7. Walker first contends article 1, section 7 of the constitution incorporates the common law rule that an officer may not make a warrantless arrest for a misdemeanor unless the misdemeanor was committed in the presence of the officer. Walker notes that while an exception existed at common law for misdemeanors amounting to a "breach of the peace," there was no exception at common law for cannabis. Thus, Walker concludes, RCW 10.31.100(1) is permissible only insofar as it codifies the common law rule; however, any other exception relating to offenses not committed in the presence of an officer is unconstitutional. Walker asserts the legislature is attempting to legislate away the warrant requirement embodied in our state constitution, one exception at a time.

¶ 6 The State argues Washington citizens have never held an absolute right to be free from warrantless misdemeanor arrests. The State points to several statutes throughout Washington's history allowing for such arrests.³ Additionally, the State contends article 1, section 7 should allow some flexibility for changing social conditions. The State notes the common law itself is not a static doctrine but is often revised in response to changing social conditions. Instead of looking only at what was allowed when the constitution was adopted, the State urges this court to balance the legislature's interest in maintaining the health and welfare of society against the traditional privacy interests of its citizens. The State also argues that since the legislature has the power to classify crimes, the legislature has the authority to proscribe the circumstances under which an officer may make a warrantless arrest, so long as the officer has probable cause to believe a crime has been committed.

¶ 7 Article 1, section 7 reads "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law" and requires a two-step analysis: was there a disturbance of one's private affairs and, if so, was the disturbance authorized by law? In re Pers. Restraint of Maxfield, 133 Wash.2d 332, 339, 945 P.2d 196 (1997). In reviewing constitutional issues under the Fourth Amendment and article 1, section 7, it is well established that the federal constitution provides the minimum level of protection against warrantless searches and seizures and our state constitution generally provides greater protection. When presented with arguments under both the state and federal constitutions, we generally review the state constitution arguments first. State v. Carter, 151 Wash.2d 118, 125, 85 P.3d 887 (2004).

¶ 8 Walker, in an abbreviated Gunwall⁴ analysis, points out that the United States Supreme Court has yet to determine if the federal constitution embodies the "in the presence" common law rule. See Atwater v. City of Lago Vista, 532 U.S. 318, 341 n. 11, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) (holding the Fourth Amendment does not incorporate the common-law prohibition against warrantless arrests for misdemeanors not amounting to a breach of the peace). Walker contends the United States Supreme Court has denied the existence of a general federal common law and thus, for questions involving common law, an independent state constitutional analysis is required. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).⁵ Under the Gunwall factors, Walker focuses and relies exclusively on our prior cases to support her arguments.

¶ 9 This court has defined the scope of article 1, section 7 as protecting "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). Inherent in the process of defining the scope of protection under article 1, section 7 is an examination of both the history of the interest at stake, relevant case law and statutes, and the current implications of recognizing or not recognizing the interest. State v. McKinney, 148 Wash.2d 20, 29, 60 P.3d 46 (2002).

¶ 10 The legislature, under its police powers, may grant police officers authority to arrest for certain crimes subject to public policy and constitutional limitations. State v. Pulfrey, 154 Wash.2d 517, 523, 111 P.3d 1162 (2005). While our cases have not specifically addressed the constitutionality of the legislative authority at issue here, cases have discussed this practice with approval. For example, in a challenge to former RCW 46.64.017 (1975), repealed by Laws of 1979, 1st Ex.Sess., ch. 28, § 4, the petitioner argued the statute was ambiguous and in derogation of the common law "in the presence" rule. Former RCW 46.64.017 authorized an officer investigating an accident scene to make...