UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 8, No. 2WINTER 1985
Seizing Opportunity, Searching for Theory: Article I, Section 7
George R. Nock(fn*)
I. Introduction
No provision of the Washington Constitution has received a more vigorous workout than article I, section 7, which ostensibly relates to searches and seizures. The qualification of ostensibility arises because the section, unlike its federal constitutional counterpart, makes no explicit reference to either searches or seizures. Rather, it reads as follows: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law."(fn1)
By contrast, the fourth amendment to the United States Constitution, thought by some a model of terseness, seems as windy as an Independence Day oration: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.(fn2)
These two passages have exactly five words in common: no, be, in, or, of. Yet, wondrously, courts have interpreted the provisions as identical in nearly all important respects, and the areas of divergence have had little to do with textual differences.
Washington case law dealing with searches and seizures has now reached a developmental stage from which it can proceed either haphazardly or along any of several well-defined lines. The purpose of this Article is not to provide a compendium of Washington search-and-seizure cases.(fn3) Rather, the Article analyzes the more recent (and some of the earlier) cases in which the Washington Supreme Court has interpreted article I, section 7, and suggests several alternative theoretical bases for the further development of Washington constitutional search-and-seizure jurisprudence.
II. History
The adoption, or what is known of it, and the history of the interpretation of article I, section 7,(fn4) have been detailed elsewhere.(fn5) In brief, the provision was adopted by the Washington State Constitutional Convention in 1889, after the convention had rejected a proposal to adopt language identical to the fourth amendment to the United States Constitution.(fn6) "Unfortunately, history provides little guidance to the intention of the framers when they chose the specific language of Const, art. I, § 7."(fn7) The Washington Supreme Court cited section 7 extensively in the years following the federal Supreme Court's enunciation of the exclusionary rule in Weeks v. United States.(fn8) The provision eventually lost significance, however, because it was interpreted so broadly as to allow most police searches on the theory that they were incident to lawful arrests.(fn9) Following Mapp v. Ohio,(fn10) section 7 fell into desuetude as federal court decisions interpreting the fourth amendment rapidly took center stage. The federal courts developed search-and-seizure doctrine so quickly and interpreted citizens' rights so expansively that Washington's fourth amendment counterpart was generally forgotten.(fn11) Only after the United States Supreme Court's expansion of these rights stopped, and its contraction of the same rights began,(fn12) did Washington resurrect its own constitutional provisions.(fn13)
Since rediscovering section 7, the Washington Supreme Court has worked a rather massive change in search-and-seizure law through only seven decisions,(fn14) each of which expressly rejects one or more United States Supreme Court cases. These seven opinions are worth considering in some detail, as they present the entire corpus of Washington decisions explicitly resting on section 7 and rejecting fourth amendment constructs.
The case that marks the Washington Supreme Court's first gingerly post-Mapp step in the direction of its own search-and-seizure jurisprudence is State v. Hehman,(fn15) a reaction to the United States Supreme Court decisions in United States v. Robinson(fn16) and Gustafson v. Florida.(fn17) All three decisions involved traffic arrests(fn18) followed by full searches of the persons of the arrestees. The United States Supreme Court upheld both of the searches that it considered, taking the view that a full-scale body search is an inherently reasonable incident of a full-custody arrest.(fn19) Because the issue was not raised, the Court assumed the validity of a full-custody arrest for a minor traffic offense.(fn20)
In Hehman, the Washington court did not dispute the United States Supreme Court's conclusions concerning the reasonableness of searches incident to arrests, but held that a full-custody arrest for a minor traffic offense, when the offender is willing to sign a promise to appear, is unreasonable under the Washington Constitution.(fn21) The court determined that it did not need to discuss the validity of the search because the underlying arrest was invalid.(fn22)
The Washington court became noticeably bolder in State v. Simpson,(fn23) rejecting flatly and firmly, but not with great persuasive force, United States v. Salvucci,(fn24) which had overruled the "automatic-standing" rule for federal courts.(fn25) The rejection, which restored automatic standing in Washington, was accompanied by the court's ringing declaration of the right of Washington courts to interpret the state constitution as more protective of individual rights than the United States Supreme Court interprets the federal charter.(fn26) Although the liberty of so interpreting the Washington Constitution was clearly established,(fn27) the reasons for the general interpretation were left for another day, and the reasons for the interpretation in the particular case were tenuous at best.(fn28)
Simpson was followed by State v. White,(fn29) in which the Washington Supreme Court rejected Michigan v. DeFillippo.(fn30) Both White and DeFillippo dealt with the admissibility of the fruits of otherwise lawful searches made incident to arrests for violating vagrancy statutes that were unconstitutionally vague. In each case, the statute was presumptively valid at the time of the arrest. The United States Supreme Court thought exclusion of the evidence pointless because police should not be encouraged to make their own assessments of the validity of statutes.(fn31) In addition, the Court reasoned that the police would hardly be deterred from making arrests by the remote possibility that a court would hold the statutes invalid.(fn32) The Washington court, however, excluded the evidence, in part in the interest of deterring the legislature from enacting similar statutes,(fn33) and in part by questioning the propriety of deterrence considerations generally as a basis for application of the exclusionary rule.(fn34)
By far the most important of the first five cases is State v. Ringer.(fn35) Ringer involved two prosecutions consolidated on appeal: Ringer's and Corcoran's. Both prosecutions involved lawful arrests of drivers who were arrested after leaving their vehicles.(fn36) In each case, the vehicle was searched and seizable matter was discovered. In Ringer's case, but not in Corcoran's, probable cause to search the vehicle presumably existed (in the form of a strong odor of marijuana emanating therefrom).(fn37) The Washington Supreme Court disapproved both searches.(fn38)
Both searches involved in Ringer were constitutional under decisions of the United States Supreme Court. The Court had held in New York v. Belton(fn39) that police may search the entire passenger compartment of a vehicle incident to a lawful arrest of the driver. Moreover, the Court had held in United States v. Ross(fn40) that probable cause to believe a properly stopped vehicle contained seizable matter justified a warrantless search of the vehicle and all containers within the vehicle.
The federal decisions in Belton and Ross are manifestly unsound. Belton represented an unjustifiable departure from Chimel v. California,(fn41) which had limited the scope of searches incident to arrest to the area within the arrestee's immediate control. The Court's rationale in Chimel was that police need to search incident to arrest only to discover weapons or concealable evidence, the latter capable of destruction, the former capable of threatening the arresting officer or others.(fn42) Nevertheless, the Belton Court allowed a search of the entire passenger compartment because the area of the arrestee's immediate control is difficult to determine when the arrest takes place in an automobile and because a "bright line" test was necessary so that police would know the precise limits upon the areas that they might properly search.(fn43) It is plain, however, that an arrestee who has been removed from the car and who typically is handcuffed and placed in a patrol car(fn44) cannot reach any part of the interior of the vehicle in which he was arrested.
Similarly, the Court's decision in Ross was the ultimate perversion of the "automobile exception" doctrine.(fn45) In Carroll v. United States,(fn46) probable cause alone justified a search of a motor vehicle because the vehicle's mobility enabled it to be moved out of the jurisdiction before a warrant could be obtained.(fn47) Ross was merely the latest in a series of cases that had ignored this justification by applying...
