SEATTLE UNIVERSITY LAW REVIEWVolume 21, No. 1SUMMER 1997
ARTICLES
Dropping Anchor: Defining a Search in Compliance With Article I, Section 7 of the Washington State Constitution
Daniel J. Clark(fn*)
I. Introduction
The U.S. Constitution did not come with a glossary denning its terms. In breathing life into words such as "search" and "seizure," the U.S. Supreme Court has been forced to look beyond the text of the Fourth Amendment.(fn1) In a progeny including Boyd,(fn2) Olmstead,(fn3) and Katz,(fn4) the Court has outlined and re-outlined the parameters of a search based on values not addressed in the Fourth Amendment such as tenets of property law,(fn5) and common law torts including trespass(fn6) and invasion of privacy.(fn7) Such demarcations are important to protect people against violations of their constitutional rights because governmental activities that are not deemed to be a "search" by Fourth Amendment jurisprudence fall outside federal constitutional protection.(fn8)
The U.S. Constitution identifies and prohibits inappropriate governmental behavior. By doing so, it outlines the lowest common denominator of rights afforded to U.S. citizens. The principles of federalism, however, allow states to craft and interpret constitutions to provide state citizens a level of civil liberties equal to or greater than that afforded by the U.S. Constitution.(fn9)
While many state constitutions mirror the language of the U.S. Constitution, Washington constitution is unique. In 1889, three years after the Supreme Court decided Boyd,(fn10) the Washington State Constitutional Convention met to craft its own state constitution. While little is known about the convention itself,(fn11) it is clear that the delegates expressly rejected the language of the Fourth Amendment,(fn12) and in its place drafted Article I, section 7, which reads, "No person shall be disturbed in his private affairs, or his home invaded, without authority of law."(fn13)
Interestingly, although the Fourth Amendment and Article I, section 7 share only five words in common,(fn14) the two passages were interpreted identically by the Washington courts for over ninety years.(fn15) Perhaps spawned in part by the United States Supreme Court's recent contraction of citizen's rights,(fn16) and Michigan v. Long,(fn17) in which the U.S. Supreme Court warned that it would now be free to accept a state case unless the state court explicitly based its holding on adequate and independent state grounds, the Washington Supreme Court rediscovered the uniqueness of Article I, section 7 in a series of cases culminating in State v. Myrick.(fn18)
In Myrick, the court officially recognized the greater protection afforded by Article I, section 7, and expressly rejected the Katz two-prong definition of a search.(fn19) However, Myrick failed to clearly identify a concrete test to fill the void left by Katz. In the wake of Myrick, Washington lower courts drifted about, confused as to the appropriate standard to apply in denning a search. This Article proposes that Myrick was correct in recognizing the ingenuity of Article I, section 7, and in rejecting the Katz definition. Unfortunately, the holding of Myrick did not go far enough in articulating a replacement for the Katz test. In the hope of providing an anchor for the Washington courts,(fn20) this Article offers a proposed test that encompasses the spirit and language of Article I, section 7, Myrick, and Myrick's recent progeny. By sewing together the essential themes from these sources, the proposed test embodies the Washington Supreme Court's intent in defining Washington's unique parameters of a search.
Section II examines Myrick itself, including the Washington Supreme Court's path that led to that decision, the facts of the case, its reasoning, and its holding. Section III discusses the reaction to and effects of Myrick, including the seemingly disingenuous and inconsistent cases that have followed Myrick. Section IV outlines a proposal that more precisely defines a search in Washington, discussing the sources of the proposed test, examining how it would help guide Washington courts, and explaining which cases would be decided differently using the proposed standard.
II. State v. Myrick
A. The Road to Myrick
The Washington Supreme Court did not jump head first into the Myrick decision. Instead, it slowly tested the waters, gaining courage during the six years prior to the decision. State v. Hehman(fn21) is considered the Washington Supreme Court's first modern,(fn22) albeit small, step in the direction of its own search and seizure jurisprudence.(fn23) In Hehman, the court held that a full custody arrest for a minor traffic offense was an unreasonable seizure under the Washington Constitution where the defendant is willing to sign a promise to appear in court.(fn24) The Hehman decision contradicted earlier Supreme Court decisions holding that searches incident to an arrest were valid under the Fourth Amendment.(fn25) The Hehman court begged the question of the validity of the searches incident to an arrest, concluding instead that the arrest itself was unlawful.(fn26)
Most notably, the Hehman court distinguished the contrary opinions of the U.S. Supreme Court noting that "[s]uch decisions, do not limit the right of state courts to accord to defendants greater rights."(fn27) Perhaps most telling of how significant the Hehman decision was in opening the door to a separate Washington search and seizure doctrine, was the reaction of dissenting Justice Brachtenbach: "Under the majority ruling the officer almost needs an appellate court riding [in] his patrol vehicle to advise [him] of the changing nature of the rules."(fn28)
The next case to address Washington's search and seizure doctrine was State v. Simpson.(fn29) Simpson concerned the so-called automatic standing rule presented to the U.S. Supreme Court in State v. Salvucci.(fn30) In Simpson, the Washington Supreme Court rejected the holding of United States v. Salvucci and concluded that Article I, section 7 mandated the existence of an automatic standing rule that allows defendants to assert a violation of privacy as a result of impermissible police conduct without having such assertion used against them as evidence of their possession of illegal contraband.(fn31) Citing Hehman, the Washington court noted the greater protection offered by the Washington Constitution, and more importantly, attributed this greater protection to Article I, section 7.(fn32)
Dissenting Justice Horowitz was not convinced. In his dissenting opinion he wrote, "Article I, section 7 . . . affords defendants protection identical to that of the federal Fourth Amendment."(fn33) He continued, "The majority does not explain why this state provision was subjected to interpretation identical to that given the Fourth Amendment during its first 91 years of its existence in our state constitution."(fn34) Finally, Justice Horowitz ominously warned that the majority "has opened the door to independent interpretation of Article I, section 7 of our state constitution without providing any guidelines for the use of this new tool of constitutional analysis."(fn35) In the wake of the Myrick decision, Justice Horowitz has been proven correct.
Following Hehman and Simpson, the Washington Supreme Court applied these holdings to expand Washington citizens' civil liberties regarding the use of informant's tips,(fn36) the "plain view" doctrine,(fn37) and the good faith doctrine.(fn38) However, the court failed to define a search under the newly discovered expansive Article I, section 7 until the Myrick decision.
B. The Facts of Myrick
Edward Myrick owned eighty acres of property in a heavily wooded area which precluded casual observation.(fn39) In addition to his land's natural borders, Myrick constructed a fence surrounding the property, posted several "No Trespassing" signs, installed electronic sensors, and built an observation platform to detect intruders.(fn40) Acting on an anonymous tip that Myrick was growing marijuana on the property, the police borrowed a plane from the United States Drug Enforcement Agency, and from an altitude of 1,500 feet, observed with the naked eye what turned out to be approximately 500 marijuana plants.(fn41) Based upon the observations from the plane and the information from the informant, the police obtained a warrant to search Myrick's land.(fn42)
Using Kate's "legitimate expectation of privacy" test, the trial court held that the search from the plane was valid since Myrick did not have a reasonable expectation of privacy from aerial surveillance.(fn43) Myrick was ultimately convicted of manufacture and possession of marijuana.(fn44) Myrick appealed his conviction asserting that the aerial search violated his privacy rights under Article I, section 7.(fn45)
C. Reasoning and Holding of Myrick
When Myrick reached the Supreme Court of Washington, Justice Utter(fn46) noted the steps taken in Hehman and Simpson, especially the recognition that Article I, section 7 provides greater protection to Washington citizens than the Fourth Amendment provides to citizens generally.(fn47) The court acknowledged that although states may look to the U.S. Supreme Court's search and seizure jurisprudence for guidance, ultimately each state draws upon its...
