SEATTLE UNIVERSITY LAW REVIEWVolume 22, No. 2FALL 1998
ARTICLE
Survey of Washington Search and Seizure Law: 1998 Update
Justice Charles W. Johnson
Introduction
This is the second revision of the original Search and Seizure Survey by Justice Robert F. Utter, Washington State Supreme Court (retired), published in the University of Puget Sound Law Review, volume 9, number 1 (Fall 1985). That work was the culmination of Justice Utter's efforts, as well as the efforts of his successive law clerks, legal externs, and the members of the University of Puget Sound Law Review. The original Survey was intended to serve as a source to which the Washington lawyer, judge, or law enforcement officer could turn to as an authoritative common starting point for researching the Washington law of search and seizure. Three years after the original publication, this Survey was updated in the University of Puget Sound Law Review, volume 11, number 3 (Spring 1988).
Continual revision of the law and new cases interpreting the Washington State Constitution and the United States Constitution have made an update imperative once again. The Seattle University Law Review is pleased to have Justice Charles W. Johnson continue these efforts in this 1998 edition. Justice Johnson and the Seattle University Law Review have endeavored to update the case comments and statutory references, which are current through July 1998. In addition, all references to WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT (2d ed. 1987) have been updated to the third edition, published in 1996.
Many of these changes involve the Washington State Supreme Court's interpretation of the Washington Constitution. Also, as the United States Supreme Court has continued to examine Fourth Amendment search and seizure jurisprudence, its decisions and their reflection on Washington law are also discussed.
Article I, section 7 is the state constitutional search and seizure counterpart to the Fourth Amendment. That section provides that "no person shall be disturbed in his private affairs, or his home invaded, without authority of law." The Washington State Supreme Court has continued to apply the analytical framework adopted in State v. Cornwall, 106 Wash. 2d 54, 61-62, 720 P.2d 808, 811 (1986) in its case-by-case determination of the scope of protection afforded under article I, section 7 and in which situations greater protection exists under the state constitution than under the Fourth Amendment.
Gunwall adopted six neutral criteria: (1) the textual language of the state constitution; (2) the significant differences in the texts of parallel provisions of the federal and state constitutions; (3) the state constitutional and common law history; (4) the preexisting state law; (5) the differences in structure between the federal and state constitutions; and (6) the matters of particular state interest or local concern. Gunwall, 106 Wash. 2d at 61-62, 720 P.2d at 811. Two years after Gunwall, the Washington State Supreme Court made the Gunwall analysis mandatory in cases arguing that the state constitution provides greater protection than the federal constitution. State v. Wethered, 110 Wash. 2d 466, 472, 755 P.2d 797, 800-01 (1988) (holding that a party's failure to address the Gunwall criteria would result in the court's refusal to consider the matter on the ground that it was insufficiently argued).
The analytical framework developed in Gunwall provides the structure from which the Washington State Supreme Court will continue to define the scope of article I, section 7. The court has recognized that article I, section 7 can provide greater protection of individual rights than those established under the Fourth Amendment.
This Survey, as did the previous Surveys, summarizes the predominant treatment of search and seizure issues under the Fourth Amendment and under article I, section 7 of the Washington State Constitution to the extent that this state's provision is interpreted differently from the federal provision. The Survey focuses primarily on substantive search and seizure law in the criminal context; it omits discussion of many procedural issues.
Chapter 1: Triggering the Fourth Amendment and Article I, Section 7: Defining Searches and Seizures
This chapter 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. Unless a true search or seizure has occurred within the meaning of the federal or state constitution, constitutional protections are not triggered. This chapter will first discuss when a search has occurred, be it in the form of entry into a home or the taking of a blood sample. The chapter will then discuss when a seizure of the person has occurred, be it an arrest or investigatory stop. The chapter 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." Berger v. New York, 388 U.S. 41, 57-59, 87 S. Ct. 1873, 1882-83, 18 L. Ed. 2d 1040, 1051-52 (1967); Lopez v. United States, 373 U.S. 427, 438-39, 83 S. Ct. 1381, 1388, 10 L. Ed. 2d 462, 470 (1963); Silverman v. United States, 365 U.S. 505, 510-12, 81 S. Ct. 679, 682-83, 5 L. Ed. 2d 734, 738-39 (1961). The Fourth Amendment guarantees apply only to those searches that intrude 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 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 2.1(a), at 375-81 (3d ed. 1996); Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967).
In Katz, the United States Supreme 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.
Katz, 389 U.S. at 350-52, 88 S. Ct. at 510-11, 19 L. Ed. 2d at 581-82. 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 area" test will be examined in the following sections. See 1 LAFAVE, SEARCH AND SEIZURE § 2.1, at 375-94.
1.1 Defining "Search" post-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." Katz v. United States, 389 U.S. 347, 360, 88 S. Ct. 507, 516, 19 L. Ed. 2d 576, 587 (1967) (Harlan, J., concurring); see 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 2.1 (3d ed. 1996). 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.'" Katz, 389 U.S. at 361, 88 S. Ct. at 516, 19 L. Ed. 2d at 588 (Harlan, J., concurring). See also California v. Greenwood, 486 U.S. 35, 39, 108 S. Ct. 1625, 1628, 100 L. Ed. 2d 30, 36 (1988); State v. Young, 123 Wash. 2d 173, 189, 867 P.2d 593, 601 (1994); State v. Boot, 81 Wash. App. 546, 550, 915 P.2d 592, 594 (1996).
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) (legitimate expectation of privacy means more than subjective expectation of not being discovered; defendants' claimed privacy expectation in home was not reasonable when defendants positioned themselves in front of a picture window with the lights on and drapes open). See also State v. Rose, 128 Wash. 2d 388, 392, 909 P.2d 280, 283 (1996) (where the "open view" doctrine is satisfied, the object under observation is not subject to any reasonable expectation of privacy; no violation was found where the officer looked through an unobstructed window of the defendant's mobile home with the aid of a flashlight). See infra section 5.6 for a discussion of the plain view doctrine.
The expectation of privacy must also be one "which the law recognizes as 'legitimate.'" Rakas v. Illinois, 439 U.S. 128, 143-44 n.12, 99 S. Ct. 421, 430-31 n.12, 58 L. Ed. 2d 387, 401-02 n.12...
