Survey of Washington Search and Seizure Law: 2005 Update

JurisdictionWashington,United States
CitationVol. 28 No. 03
Publication year2005



Survey of Washington Search and Seizure Law: 2005 Update

Justice Charles W. Johnson(fn*)


I am pleased to be joined by Law Review members Linda W.Y. Cobum, Jason Amala, Gordon Hill, Erica Horton, Kylee Maclntyre, Joshua Osbome-Klein, and the rest of the Seattle University Law Review staff, along with Kelly Kunsch of the Seattle University Law Library for his work on the index, and Grace Mottman, my Administrative Assistant, in publishing this Survey of Washington Search and Seizure Law. This marks the fourth publication of the Survey that was originally authored by Justice Robert F. Utter, Washington Supreme Court (retired) in 1985, with updates published in 1988 and 1998.

This Survey is intended to serve as a source to which the Washington lawyer, judge, law enforcement officer, and others can turn to as an authoritative starting point for researching Washington search and seizure law. In order to be useful as a research tool, revisions to the law and new cases interpreting the Washington Constitution and the United States Constitution require periodic updates to this Survey to reflect the current state of the law. Many of these cases involve the Washington 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 reflections on Washington law are also discussed.

Often the rules and approaches in interpreting the Washington Constitution differ in certain areas from the analysis used by the United States Supreme Court in its Fourth Amendment jurisprudence. Where that occurs, this Survey has identified the independent approach adopted by the Washington Supreme Court.

Article I, Section 7 of the Washington Constitution is a 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 Supreme Court historically applied the analytical framework outlined in State v. Gunwall, 106 Wn.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 situations where greater individual protection exists under the Washington Constitution than under the Fourth Amendment.

Gunwall adopted the following six neutral interpretive factors: (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) matters of particular state interest or local concern. Id.

This analytical framework adopted in Gunwall provides the structure and foundation from which Washington courts continue to define the scope of Article I, Section 7. In more recent cases under Article I, Section 7, the Washington Supreme Court has relaxed the earlier strict requirement that counsel provide a ''Gunwall analysis" in order to have the court rule on a state constitutional law issue instead of applying, where possible, principles developed in previous cases. State v. White, 135 Wn.2d 761, 769, 958 P.2d 982, 986 (1998). Recognizing the structural approach to state constitutional interpretation, however, continues to provide a reasoned approach to resolving issues of state constitutional law.

This Survey contains updated case comments and statutory references that are current through March 2005, and focuses primarily on substantive search and seizure law in the criminal context; it omits discussion of many procedural issues. In addition, all references to Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, have been updated to the Fourth Edition, published in 2004.

-Charles W. Johnson

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 first discusses when a search has occurred, from entries into the home to the taking of blood samples. The chapter then discusses when a seizure of the person has occurred, be it an arrest or an investigatory stop. The chapter concludes 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, 59, 87 S. Ct. 1873, 1883, 18 L. Ed. 2d 1040, 1052 (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's guarantees applied 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 § 2.1(a), at 422-31 (4th ed. 2004).

However, in Katz v. United States, the United States Supreme Court rejected the rigid "constitutionally protected area" test: [T]he 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. 347, 350-52, 88 S. Ct. 507, 510-11, 19 L. Ed. 2d 576, 581-82 (1967). Katz thus defined the scope of search protections as the individual's "reasonable expectation of privacy." 389 U.S. at 360, 88 S. Ct. at 516, 19 L. Ed. 2d at 587 (Harlan, J., concurring). 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, supra, § 2.1, at 422-45.

1.1 Defining "Search" Fost-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 § 2.1, at 422-45 (4th ed. 2004). 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 Kyllo v. United States, 533 U.S. 27, 31, 121 S. Ct. 2038, 2041, 150 L. Ed. 2d 94, 100 (2001); California v. Greenwood, 486 U.S. 35, 39, 108 S. Ct. 1625, 1628, 100 L. Ed. 2d 30, 36 (1988); State v. Carter, 151 Wn.2d 118, 127, 85 P.3d 887, 891 (2004); State v. Young, 123 Wn.2d 173, 189, 867 P.2d 593, 601 (1994) (en banc); State v. Boot, 81 Wn. App. 546, 550, 915 P.2d 592, 594 (1996).

In addition, the expectation of privacy must 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 (1978). The test of "legitimacy" may be just another reformation of the "reasonableness" test, discussed supra. Minnesota v. Olson, 495 U.S. 91, 95-96, 110 S. Ct. 1684, 1687, 109 L. Ed. 2d 85, 95 (1990) ("A subjective expectation of privacy is legitimate if it is 'one that society is prepared to recognize as reasonable.'") (quoting Rakas, 439 U.S. at 143-44 n.12, 99 S. Ct. at 430-31 n.12, 58 L. Ed. 2d at 401-02 n.12). 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. Rakas, 439 U.S. at 143-44 n.12, 99 S. Ct. at 430-31 n.12, 58 L. Ed. 2d at 401-02 n.12; see also United States v. White, 401 U.S. 745, 751, 91 S. Ct. 1122, 1126, 28 L. Ed. 2d 453, 458 (1971) (despite...

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