UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 9, No. 1FALL 1985
Survey of Washington Search and Seizure Law
Justice Robert F. Utter(fn*)
Introduction
This Survey is designed to assist lawyers and judges who must argue and resolve search and seizure issues in Washington State. The Survey summarizes the controlling state and federal cases on search and seizure law and uses as an additional reference W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment (1978) [hereinafter cited as LaFave, Search and Seizure.
Washington courts are likely to analyze future search and seizure issues under both the fourth amendment and Washington Constitution article I, section 7. The difference in wording between the two provisions is substantial, suggesting different degrees or types of privacy protection.U.S. Const, amend. IV: Security from unwarrantable search and seizure. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Wash. Const, art. 1, § 7: Invasion of private affairs or home prohibited. No person shall be disturbed in his private affairs, or his home invaded, without authority of law.
The Washington Supreme Court has interpreted article I, section 7 to provide greater privacy protection than the fourth amendment in a number of circumstances. See, e.g., State v. Jackson, 102 Wash. 2d 432, 688 P.2d 136 (1984) (test for probable cause based on an informant's tip); State v. Chrisman, 100 Wash. 2d 814, 676 P.2d 419 (1984) (lawfulness of warrantless entry into a home); State v. Ringer, 100 Wash. 2d 686, 674 P.2d 1240 (1983) (search incident to arrest and automobile exceptions to warrant requirement); State v. White, 97 Wash. 2d 92, 640 P.2d 1061 (1982) (application of exclusionary rule); State v. Simpson, 95 Wash. 2d 170, 622 P.2d 1199 (1980) (automatic standing).
In applying the state constitution, the court has invalidated searches and seizures that were lawful under the fourth amendment. "The substantial difference in language (between the state and federal provisions) allows us to provide heightened protection . . . . This language has thus formed the basis for our refusal to follow United States Supreme Court decisions defining the extent of the freedom from unreasonable searches and seizures." State v. Chrisman, 100 Wash. 2d 814, 818, 676 P.2d 419, 422 (1984).
This Survey summarizes the predominant treatment of search and seizure issues under the fourth amendment and under article I, section 7 to the extent that the state provision is interpreted differently from the federal. The Survey focuses primarily on substantive search and seizure law in the criminal context; it omits discussion of many procedural issues such as retroactivity and preserving state constitutional claims for appeal, see, e.g., In re Sauve, 103 Wash. 2d 322, 692 P.2d 818 (1985) (retroactivity), State v. Donohoe, 39 Wash. App. 778, 695 P.2d 150 (appeal), rev. denied, 103 Wash. 2d 1032 (1985), and it does not generally address civil actions brought under the search and seizure provisions, see, e.g., Guffey v. State, 103 Wash. 2d 144, 690 P.2d 1163 (1984).
Chapter 1: Triggering the Fourth Amendment and Article I, Section 7: Defining Searches and Seizures
This section addresses three questions: (1) "What is a search?"; (2) "What is a seizure of the person?"; and (3) "What is a seizure of property?"
These questions represent the threshold inquiry in any search or seizure problem because unless a true search or seizure has occurred, within the meaning of the federal and state constitutions, the constitutional protections are not triggered. This section first will discuss when a search has occurred, be it in the form of entry into a home or taking a blood sample. The section then will discuss when a seizure of the person has occurred, be it an arrest or investigatory stop. The section will conclude with a discussion of when, for constitutional purposes, personal property has been seized.
1.0 Defining "Search" Pre-Katz: "Constitutionally Protected Areas"
Prior to 1967, the United States Supreme Court defined the applicability of fourth amendment protections in terms of "constitutionally protected areas." Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). The fourth amendment guarantees applied only to those searches that intruded into one of the "protected areas" enumerated within the fourth amendment: "persons" (including the bodies and clothing of individuals); "houses" (including apartments, hotel rooms, garages, business offices, stores, and warehouses); "papers" (such as letters); and "efFects" (such as automobiles). See generally 1 LaFave, Search and Seizure § 2.1 (9a), at 223-24; Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev 349 (1974).
In Katz, the Court rejected the rigid "constitutionally protected area" test.The correct solution of Fourth Amendment problems is not necessarily promoted by incantation of the phrase "constitutionally protected area." . . . [T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection . . . . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. 389 U.S. at 350-52, 19 L. Ed. 2d at 581-82, 88 S. Ct. at 510-11 (citations omitted). Katz thus defined the scope of search protections as the individual's "reasonable expectation of privacy." The nature of this new test and the degree of continued vitality of the old "constitutionally protected areas" test will be examined in the following sections.
1.1 Defining "Search" after Katz: The "Reasonable Expectation of Privacy"
In a concurring opinion in Katz, which has since come to be accepted as the Katz test, Justice Harlan explained that the Katz holding extends search and seizure protections to all situations in which a defendant has a "reasonable expectation of privacy." 389 U.S. at 360, 19 L. Ed. 2d at 587, 88 S. Ct. at 516 (Harlan, J., concurring); see generally LaFave, Search and Seizure § 3.2(a), at 97-99. A reasonable expectation of privacy is measured by a "twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.'" 389 U.S. at 361, 19 L. Ed. 2d at 588, 88 S. Ct. at 516 (Harlan, J., concurring).
Thus, for example, although "a man's home is, for most purposes, a place where he expects privacy, . . . objects, activities, or statements that he exposes to the 'plain view' of outsiders are not 'protected' because no intention to keep them to himself has been exhibited." State v. Drumhiller, 36 Wash. App. 592, 595, 675 P.2d 631, 633 (1984) (citation omitted) (legitimate expectation of privacy means more than subjective expectation of not being discovered; defendants' claimed privacy expectation in home not reasonable when defendants positioned themselves in front of picture window with lights on and drapes open); see, e.g., Smith v. Maryland, 442 U.S. 735, 740, 61 L. Ed. 2d 220, 99 S. Ct. 2577 (1979). The reasonable expectation of privacy also has been analyzed by whether the incriminating evidence was seen or heard from a place accessible to people who are not unusually inquisitive. United States v. Taborda, 635 F.2d 131 (2d Cir. 1980) (ascertainment of which objects or activities in defendant's apartment could have been seen by naked eye from adjacent apartment is necessary to determine reasonable expectation of privacy in objects or activities).
The expectation of privacy additionally must be one "which the law recognizes as 'legitimate.'" Rakas v. Illinois, 439 U.S. 128, 143-44 n.12, 58 L. Ed. 2d 387, 401-02 n.12, 99 S. Ct. 421, 430-31 n.12 (1978).A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as 'legitimate.' . . . Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. Id.
Consequently, when a police investigative device is capable of detecting only the presence of unlawful articles, the use of the device does not constitute a search. United States v. Place, 462 U.S. 696, 707, 77 L. Ed. 2d 110, 121, 103 S. Ct. 2637, 2644-45 (1983) (a canine sniff of luggage, when the canine is trained to detect only contraband, is not a search within meaning of fourth amendment); see also State v. Wolohan, 23 Wash. App. 813, 818, 598 P.2d 421, 424 (1979), rev. denied, 93 Wash. 2d 1008 (1980).
Similarly, unlawful sexual activity in a public toilet stall, even though the stall door is closed, carries no legitimate expectation of privacy. Hartman v. Virginia, 48 U.S.L.W. 3078 (Va. 1979), cert, denied, 444 U.S. 825 (1979). In addition, the fourth amendment provides no protection against a government agent recording a...
