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Thread: Two WA Supreme Court Decisions on Privacy:

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    Regular Member Mainsail's Avatar
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    Two WA Supreme Court Decisions on Privacy:

    The Washington State Supreme court has weighed in on privacy issues. While these are not firearms decisions, they do address our privacy laws.

    STATE v Day

    Benton County Sheriff's Deputy Jeff Hayter was driving on patrol one Sunday morning. The deputy saw a car backed into shrubbery along the Yakima River in an "improved access facility," where parked vehicles are supposed to display parking permits. Deputy Hayter testified he approached the car to check whether there was a permit.* As Deputy Hayter approached, he saw Charlie Day sitting in the car with his head moving as if he was looking for something. As Deputy Hayter got closer, he started to suspect the car were associated with drug use because it was cluttered with cigarette lighters and rubber gloves, among other things. Of immediate interest to Deputy Hayter, however, was an empty handgun case on the floor near Day's feet.

    Deputy Hayter asked Day if there was a gun in the car. Day said there was. Day was cooperative but Deputy Hayter (he later testified) nonetheless became concerned for his safety and asked Day to step out of the car. Day did. Deputy Hayter frisked Day, handcuffed him, and asked where the gun was. Day said it was behind the passenger seat where his wife was sitting. Deputy Hayter then asked Alice Day2 to exit the vehicle and frisked her as well, while telling both Days they were not under arrest. After another officer arrived, Deputy Hayter searched the car and found the handgun under the passenger seat.

    Dispatch reported the gun was stolen and there was an outstanding arrest warrant for Alice Day. Deputy Hayter arrested the couple, conducted a search incident to arrest, and discovered evidence of methamphetamine manufacturing in the vehicle. Based on that evidence, Day was charged and convicted of manufacturing methamphetamine.

    Day argues that the officer exceeded his authority under the Washington State Constitution by stopping and searching him merely on suspicion of a parking infraction and, therefore, that the fruits of that search must be suppressed and his conviction vacated for lack of lawful evidence.


    *Remember this part

    Whether the officer acted with authority of law turns on whether the Terry3 exception to the warrant requirement, which allows an officer to stop and frisk a person without a warrant or probable cause under certain limited circumstances, applies to these circumstances. The Court of Appeals found it did and affirmed Day's conviction.


    The right to be free from searches by government agents is deeply rooted into our nation's history and law, and it is enshrined in our state and national constitutions. The United States Constitution prohibits unreasonable searches and seizures; our state constitution goes further and requires actual authority of law before the State may disturb the individual's private affairs.


    A Terry investigative stop only authorizes police officers to briefly detain a person for questioning without grounds for arrest if they reasonably suspect, based on "specific, objective facts" that the person detained is engaged in criminal activity or a traffic violation.


    The State does not argue that, outside of the relatively relaxed standards of a Terry search, Deputy Hayter had objectively reasonable fear for his safety that justified the search. Accordingly, we do not reach whether, given the acknowledged gun, the likely parking infraction, the rubber gloves, the cigarette lighters, and the furtative movement would support a search on that basis. We think it highly unlikely, however, that the lawful possession of a gun could be the basis for a lawful search without burdening rights under article I, section 24 of our constitution.


    Washington's adoption of the Terry investigative stop exception is grounded upon the expectation of privacy. Our constitution protects legitimate expectations of privacy, "those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant." Myrick, 102 Wn.2d at 511. Whether the Fourth Amendment or article I, section 7 of the Washington Constitution is in issue, a detaining officer must have "a reasonable, articulable suspicion, based on specific objective facts, that the person seized has committed or is about to commit a crime."


    OK, notice here that they are pointing out how the US Constitution differs from ours. Our privacy laws are actually much stricter than the federal.

    Under the Fourth Amendment, whether the officer had grounds for a Terry stop and search is tested against an objective standard. Johnson, supra, at 598. (pretextual traffic stops do not violate the Fourth Amendment). By contrast, under article I, section 7, we consider the totality of the circumstances, including the officer's subjective belief. See State v. Ladson, 138 Wn.2d 343, 358-59, 979 P.2d 833 (1999); Kennedy, 107 Wn.2d at 6. Our constitution does not tolerate pretextual stops.* Ladson, 138 Wn.2d at 352.


    *Remember this part too.

    They then point out the differences between a traffic infraction and a parking infraction, and how Terry is applied to both situations.

    CONCLUSION
    When officers merely suspect a civil infraction has been committed, there is no ground for a Terry stop. Duncan, 146 Wn.2d at 182. Since there was no ground for a Terry stop, there was no ground for a Terry frisk. We reverse the trial court's admission of the evidence seized from Days' vehicle, vacate his conviction without prejudice, and remand for further proceedings consistent with this opinion.


    The two parts I asterisked above are important when you read the final message on the court’s decision. The officer said he was investigating a parking violation:

    The incident was recorded by a camera mounted in Deputy Hayter's patrol car. The Day vehicle was parked so that the back of the vehicle was in the shrubbery. The record reflects that the improved access facility permits are usually affixed to the back of the vehicle. The videotape fails to show that Deputy Hayter ever attempted to look at the back of the vehicle to see if it was properly permitted.

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    Mainsail wrote:
    Two WA Supreme Court Decisions on Privacy:
    Where is 2d decision?

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    Regular Member Mainsail's Avatar
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    STATE v Moore

    This case deals with the ‘requirement’ to identify yourself to a police officer. I’m not going to pull parts of it, but cleaned it up for readability:

    Alex Undrae Paul Moore appeals his conviction for possession of a controlled substance with intent to manufacture or deliver, contending that the trial court erred in denying his motion to suppress evidence discovered in a search
    incident to his arrest. We agree and hold that the evidence is inadmissible. We reverse the Court of Appeals and remand to the trial court.

    Facts

    According to the trial court's unchallenged findings of fact, on April 27, 2003, Everett Police Officer Jamie French stopped a vehicle in which Moore was a passenger. Officer French recognized Moore from a previous encounter but could not recall his name. When asked, Moore told Officer French that his name was "Antoine Carver." Officer French suspected that Antoine Carver was not Moore's true name. During the stop, Officer French observed a pit bull sitting on Moore's lap in the backseat. She arrested Moore for having a dangerous dog outside of an enclosure in violation of Everett Municipal Code... She also arrested Moore for "Refusal to Give Information/Cooperate with an officer." A second officer at the scene then searched Moore and found cocaine, methadone pills, and approximately $800 in cash. Later that same day, Officer French filed a supplemental report mentioning that she had noticed that none of the passengers were wearing seatbelts when she approached the vehicle.

    The State charged Moore with possession of a controlled substance with intent to manufacture or deliver. Before trial, Moore moved to suppress the evidence discovered in the search on the grounds that his arrest was unlawful. The trial court held that Officer French did not have probable cause to arrest Moore for having a dangerous dog outside of an enclosure because the car constituted a suitable enclosure. The court also deemed that probable cause did not exist to arrest Moore for refusal to give information/cooperate with an officer because "[g]iving false identification is not a crime in and of itself unless the person is being stopped and charged with a traffic infraction."

    The court explained:

    In this case, Officer French hadn't identified any traffic infraction that [Moore] was being investigated on, and instead, apparently, was under the impression if you give false identification under any circumstance you're committing a misdemeanor. She's simply wrong on that case.

    . . . Mr. Moore had no obligation to give his name in the first place, and so to arrest him for giving a wrong name is inappropriate.

    Nonetheless, the trial court held the arrest was valid, ruling that a "hidden reason" supported Moore's arrest. Based on Officer French's observation that Moore was not wearing a seatbelt and belief that Moore provided false identification, the trial court reasoned that "[t]he officers didn't arrest Mr. Moore for a seat belt violation, but, in hindsight, it appears that they could have."

    The court thus concluded that Officer French "had lawful authority to ask the defendant his name for committing the traffic infraction of a seatbelt violation" and that "when the defendant provided a false name to them, officers then had probable cause to arrest" him for failing to identify himself pursuant to an investigation of a traffic infraction under former RCW 46.61.021(3) (1997).1 CP at 59.
    1 Under this provision, "[a]ny person requested to identify himself or herself to a law enforcement officer pursuant to an investigation of a traffic infraction has a duty to identify himself or herself, give his or her current address, and sign an acknowledgement of receipt of the notice of infraction." Former RCW 46.61.021(3). Violation of RCW 46.61.021(3) is a misdemeanor. RCW 46.61.022.
    The court upheld the search and denied Moore's motion to suppress.

    During a bench trial, the court found Moore guilty of possessing a controlled substance with intent to manufacture or deliver. Moore appealed and the Court of Appeals affirmed.

    Issue

    Was the search incident to Moore's arrest lawful under article I, section 7 of the Washington Constitution?

    Analysis

    Search Incident to Arrest. The Washington Constitution mandates that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." Wash. Const. art. I, § 7. In contrast to the Fourth Amendment to the United States Constitution, the article I, section 7 provision "recognizes a person's right to privacy with no express limitations." O'Neill, 148 Wn.2d at 584. A warrantless search is per se unreasonable unless it falls within one of the few narrowly drawn exceptions. State v. Parker, 139 Wn.2d 486, 496, 987 P.2d 73 (1999).

    "[T]he search incident to arrest exception to the warrant requirement is narrower" under article I, section 7 than under the Fourth Amendment. O'Neill, 148 Wn.2d at 584. Under the Washington Constitution, a lawful custodial arrest is a constitutional prerequisite to any search incident to arrest. Id. at 587. The lawfulness of an arrest stands on the determination of whether probable cause supports the arrest. Probable cause exists when the arresting officer has "knowledge of facts sufficient to cause a reasonable [officer] to believe that an offense has been committed" at the time of the arrest.

    In the instant case, officers searched Moore without a warrant, incident to his arrest for having a dangerous dog outside of an enclosure and for refusal to give information/cooperate with an officer. The State does not challenge the trial court's finding that probable cause does not support either of these bases for Moore's arrest.

    The State nonetheless argues that Officer French had additional probable cause to support an arrest of Moore for violating former RCW 46.61.021(3), which provides in pertinent part that "[a]ny person requested to identify himself or herself to a law enforcement officer pursuant to an investigation of a traffic infraction has a duty to identify himself or herself."

    The record does not support the State's argument that Officer French conducted an "investigation" of the seatbelt violation. The crime of failing to correctly identify one's self under RCW 46.61.021(3) requires more than the mere observation of a traffic infraction and an unrelated request for identification. Rather, the officer must ask the individual for identification pursuant to an investigation of a traffic infraction. Officer French did not cite any passengers for the seatbelt violation and only mentioned her observation that the passengers were not wearing seatbelts in a supplemental report. Officer French also clarified at a subsequent hearing that she did not ask Moore for his name pursuant to an investigation of the seatbelt infraction.

    Based on the objective fact that Officer French was not investigating the seatbelt infraction, a reasonable officer would not have concluded that Moore violated former RCW 46.61.021(3) by failing to correctly identify himself pursuant to an investigation of a traffic infraction. Accordingly, we conclude that probable cause does not support Moore's arrest.

    Conclusion

    Officer French did not have probable cause to arrest Moore for failure to identify himself in violation of former RCW 46.61.021(3). Therefore, the arrest and search were unlawful under article I, section 7 of the Washington Constitution and the evidence obtained during the search is inadmissible. We reverse the Court of Appeals and remand.


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    Wait a second, I thought seatbelt laws were there to keep us safe? Now you're telling me that, instead, they're used as a reason to stop and investigate people who are doing no harm to others?

    This is exactly why "self protection" laws and other consensual crime laws are so bad.

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    Regular Member Mainsail's Avatar
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    The State does not argue that, outside of the relatively relaxed standards of a Terry search, Deputy Hayter had objectively reasonable fear for his safety that justified the search. Accordingly, we do not reach whether, given the acknowledged gun, the likely parking infraction, the rubber gloves, the cigarette lighters, and the furtative movement would support a search on that basis.We think it highly unlikely, however, that the lawful possession of a gun could be the basis for a lawful search without burdening rights under article I, section 24 of our constitution.

    I wanted to break this out for discussion. I understand what they’re saying in the phrase, “burdening rights under article 1, section 24 of our constitution. The root word being ‘burden’ which is to saddle or encumber.

    To summarize, the officer saw what he suspected was an improperly parked car and approached to investigate an improperly parked car. Improper parking is a civil matter, not a criminal one, so, at least here in WA, a Terry stop is inappropriate. Then, he noticed the empty gun case. For the police, it seems the presence of a firearm under any circumstance nulls a person’s rights entirely. He felt justified in searching the man’s car, but nothing indicates what his probable cause was. He asked the man to get out of the car, presumably for his safety, and frisked him.

    In the decision:

    Officers may briefly, and without warrant, stop and detain a person they reasonably suspect is, or is about to be, engaged in criminal conduct. This exception to the warrant requirement is often referred to as a “Terry stop.” While Terry does not authorize a search for evidence of a crime, officers are allowed to make a brief, nonintrusive search for weapons if….“a reasonable safety concern exists to justify the protective frisk for weapons” so long as the search goes no further than necessary for protective purposes.

    So how, if the gun was not in view, did the officer feel justified in searching the car? Remember, even though the gun was stolen, the officer didn’t know it was stolen and it was improper for him to assume it was. The court said, “We think it highly unlikely, however, that the lawful possession of a gun could be the basis for a lawful search without burdening [privacy] rights.” They’re saying that if you are lawfully in possession of a gun, that lawful possession cannot justify a lawful search. Now, they had already acknowledged that the gun was stolen, so it wasn’t a “lawful possession” at all. Reading it in reverse, if the possession was unlawful, then the basis for the search was lawful, right? No. Other than the defendant, who didn’t tell the officer it was stolen and may not have known, nobody knew the gun under the seat was stolen. The officer then should have assumed the gun was possessed lawfully.

    Given my three incidents, the mall incident, and the latest one in Olympia, it appears to me that the police like to make the assumption that firearms=illegal. Olsen justified stopping me, even though he acknowledged that OC is legal, because he had to determine that it was lawful for me to carry. In other words, he had to check me out before I would be allowed to go on about my business. Reading these court decisions only makes me angrier about being detained, having my driver’s license and CCW permit checked, and having my firearm’s serial number checked. It was assumed by the police officers in all cases that the presence of a firearm justified an intrusion of our privacy, when clearly it was not even close.

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    Mainsail wrote:
    Given my three incidents, the mall incident, and the latest one in Olympia, it appears to me that the police like to make the assumption that firearms=illegal. Olsen justified stopping me, even though he acknowledged that OC is legal, because he had to determine that it was lawful for me to carry. In other words, he had to check me out before I would be allowed to go on about my business. Reading these court decisions only makes me angrier about being detained, having my driver’s license and CCW permit checked, and having my firearm’s serial number checked. It was assumed by the police officers in all cases that the presence of a firearm justified an intrusion of our privacy, when clearly it was not even close.
    Regarding "the latest one in Olympia" I talked with Lt. Wilson again today, and he is backpedalling, claiming the officers acted in the interests of "officer safety" which seems to be a catch all phrase allowing for the termination of individiual rights.

    The two cases cited in this thread are very interesting to me at this time. Lt. Wilson claims he will be forwarding me an electronic copy of an opinion issued by the Thurston County Attorney. He read it to me and it is the usual "warrants alarm" BS, etc...

    I am going to review OPD procedure as well and filing a complaint through the Chief's office. Wilson does not expect his investigation to be wrapped up until next week, at which time he will call me. When I get that is when I will complain to the Chief.

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    Mainsail wrote:
    . We think it highly unlikely, however, that the lawful possession of a gun could be the basis for a lawful search without burdening rights under article I, section 24 of our constitution.
    Wow. Am going to be referencing this case to the OPD. Thanks Mainsail!

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    We are going to have a hard row to hoe here. The officers who are against OC are convinced that they have the right to stop us simply to determine if we can lawfully carry.

    It seems to me that under the constitution they must presume we can until something else gives reason to believe we can't.

    Just like they cannot stop a car simply to see if the driver has a license they can't stop us simply to determine if we can carry. They MUST"reasonably suspect" we are or are about to be engaged in criminal conduct.

    And this "causing alarm" BS is getting old. Once an officers sees us he or she would then have to OBSERVE us and be able to explainthat we were acting in such a way to cause alarm. "Just walking around with a gun" is NOT alarming. Unless you're a Misohopliac, a Hoplophobe or a moron.





    Misohoplia derived from ancient Greek words misos which means hatred for somebody or something and hoplos/hoplis meaning weapons. A Misohopliac hates weapons and hates the people who have/use them.

    Hoplophobia derived from ancient Greek word hoplos/hoplis meaning weapons. A Hoplophobe is a person with an unreasonable fear of weapons.(While a Hoplophile is a person who likes weapons and a Hoplite is student of weapons.)



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    Regular Member amlevin's Avatar
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    sv_libertarian wrote:
    Lt. Wilson claims he will be forwarding me an electronic copy of an opinion issued by the Thurston County Attorney. He read it to me and it is the usual "warrants alarm" BS, etc...

    Why don't you send him a copy of State v. Casad where an appelate court found that just seeing a weapon carried did not warrant alarm. That there had to be more than just one element involved (That's why the word AND is used in 9.41.270 instead of OR). It is not a published opinion but you aren't filing a brief, just rebutting a county attorney's opinion. Might give the attorney something to think about.
    "If I shoot all the ammo I am carrying I either won't need anymore or more won't help"

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    amlevin wrote:
    Why don't you send him a copy of State v. Casad where an appelate court found that just seeing a weapon carried did not warrant alarm. That there had to be more than just one element involved (That's why the word AND is used in 9.41.270 instead of OR). It is not a published opinion but you aren't filing a brief, just rebutting a county attorney's opinion. Might give the attorney something to think about.
    Good idea. I haven't recieved a copy of the opinion yet either. Wrote him an email yesterday referencing State V Day which by the sparse nature of the reply I imagine gave him some discomfort. Anyone who wants copies of the ongoing communications can PM me, or will post if I get asked.

    So will write a second email today refering to State V Casad and repeating my request for the opinion he is working off of.

    Steve

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    Regular Member Mainsail's Avatar
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    Here’s an analogy I like. Can the police randomly stop the driver of a Corvette to make sure he has a driver’s license? No, and he cannot use the rational that the car is capable of going above the speed limit, or that it’s capable of outrunning their Crown Vics. If he sees a Corvette drive past, and there’s no violation of any traffic laws, he must assume that the driver is legal.

    The same goes for OC. Yes, the sidearm we’re wearing could be used to commit a crime, or even to shoot the cop, but if we’re otherwise obeying the law, they cannot stop you to try to determine that you are carrying lawfully.

    I would like to find out if it is, as it appears from State v Moore above, not a legal requirement to show identification or tell them your name. Are you breaking the law if you just stand there and say nothing, and refuse to provide ID?

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    Mainsail wrote:
    Can the police randomly stop the driver of a Corvette to make sure he has a driver’s license? No, and he cannot use the rational that the car is capable of going above the speed limit, or that it’s capable of outrunning their Crown Vics. If he sees a Corvette drive past, and there’s no violation of any traffic laws, he must assume that the driver is legal.
    Not completely true. WSP has the power given to them by law to stop and check licenses and/or inspect vehicles. Mind you that this only applies to WSP and no other agency.
    "A fear of weapons is a sign of retarded sexual and emotional maturity."

    "though I walk through the valley in the shadow of death, I fear no evil, for I know that you are by my side" Glock 23:40

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    Regular Member John Hardin's Avatar
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    amlevin wrote:
    Why don't you send him a copy of State v. Casad where an appelate court found that just seeing a weapon carried did not warrant alarm. That there had to be more than just one element involved (That's why the word AND is used in 9.41.270 instead of OR). It is not a published opinion but you aren't filing a brief, just rebutting a county attorney's opinion. Might give the attorney something to think about.
    ...maybe we should start building a library of appeals- and supreme-court opinions on these matters. I sense another wallet pamphlet coming on...

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    John Hardin wrote:
    amlevin wrote:
    Why don't you send him a copy of State v. Casad where an appelate court found that just seeing a weapon carried did not warrant alarm. That there had to be more than just one element involved (That's why the word AND is used in 9.41.270 instead of OR). It is not a published opinion but you aren't filing a brief, just rebutting a county attorney's opinion. Might give the attorney something to think about.
    ...maybe we should start building a library of appeals- and supreme-court opinions on these matters. I sense another wallet pamphlet coming on...
    If I remember correctly State v. Casad does not set case law because it was not published.
    "A fear of weapons is a sign of retarded sexual and emotional maturity."

    "though I walk through the valley in the shadow of death, I fear no evil, for I know that you are by my side" Glock 23:40

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    Mainsail wrote:
    Can the police randomly stop the driver of a Corvette to make sure he has a driver’s license? No, and he cannot use the rational that the car is capable of going above the speed limit, or that it’s capable of outrunning their Crown Vics.
    That's why Corvette's and other sports cars should be banned,and only police be allowed to use them.

    /sarcasm

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    joeroket wrote:
    John Hardin wrote:
    amlevin wrote:
    Why don't you send him a copy of State v. Casad where an appelate court found that just seeing a weapon carried did not warrant alarm. That there had to be more than just one element involved (That's why the word AND is used in 9.41.270 instead of OR). It is not a published opinion but you aren't filing a brief, just rebutting a county attorney's opinion. Might give the attorney something to think about.
    ...maybe we should start building a library of appeals- and supreme-court opinions on these matters. I sense another wallet pamphlet coming on...
    If I remember correctly State v. Casad does not set case law because it was not published.
    State v Casad was unpublished and cannot be cited for precedent. Nevertheless, it speaks volumes about how the WA courts view the constitutional right to keep and bear arms. In many states people would be shocked, maybe even outraged, that the police have no grounds to stop a man for walking along a city street with two rifles.

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    State v Casad was unpublished and cannot be cited for precedent.
    Isn't somebody working on correcting that?


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    Yes, Dave Workman is trying to get it published.
    "A fear of weapons is a sign of retarded sexual and emotional maturity."

    "though I walk through the valley in the shadow of death, I fear no evil, for I know that you are by my side" Glock 23:40

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    Regular Member amlevin's Avatar
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    Casad may not be published but it could certainly give a City Attorney or Prosecutor something to think about. It's time to play the politics in our favor for a change.
    "If I shoot all the ammo I am carrying I either won't need anymore or more won't help"

    "If you refuse to stand up for others now, who will stand up for you when your time comes?"

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    State v Smith

    Law enforcement officers drew their guns and ordered occupants out of a car that had arrived at a residence where police were about to serve a search warrant. The officers had no reasonable articulable suspicion occupant Tana Loy Smith had committed or was about to commit a crime or that she was a threat to anyone's safety. As a result of the detention, police found methamphetamine in the car.

    We conclude that the seizure violated Ms. Smith's Fourth Amendment rights and reverse the trial court's denial of her suppression motion and the conviction upon which the evidence is based.


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    Regular Member Mainsail's Avatar
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    The other half a State v Day:

    The outcome of this appeal is controlled by the outcome of the co-

    defendant's case. Since the Washington Supreme Court has reversed the conviction of

    the co-defendant, the conviction in this matter also must be reversed.

    Appellant Alice Day and her husband, Charlie Day, were arrested after an officer

    investigating a parking infraction searched them and found a weapon. A later search

    incident to the arrest discovered evidence of methamphetamine manufacturing activity.

    After losing a joint suppression hearing, the Days were separately convicted of

    methamphetamine related offenses. The Washington Supreme Court ultimately reversed

    Charlie Day's conviction for manufacturing methamphetamine and remanded to the trial

    court for further proceedings. State v. Day, 161 Wn.2d 889, 168 P.3d 1265 (2007).

    No. 25016-4-III
    State v. Day

    Alice Day was eventually convicted at a bench trial of possession of

    pseudoephedrine with intent to manufacture methamphetamine. Her appeal raises the

    same issues as her husband's case. The Washington Supreme Court determined in

    Charlie Day's appeal that the officer lacked authority of law to conduct a frisk in the

    course of investigating a parking infraction. That ruling requires the same result in this

    action.

    The conviction is reversed and the case remanded for further proceedings

    consistent with the opinion in State v. Day.

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    Not so much a privacy issue, but interesting nonetheless.

    An unlawful pretext stop occurs when an officer stops a vehicle in order to conduct a speculative criminal investigation unrelated to the driving, and not for the purpose of enforcing the traffic code. State v. Ladson, 138 Wn.2d 343, 349, 351, 979 P.2d 833 (1999). Here, after viewing the suspicious behavior of occupants of a van in a parking lot, an officer decided to surveil the parties. The van left the parking lot without its headlights on. The officer followed. After the headlights were turned on a short time later, the officer pulled the van over. We conclude that this constitutes a pretext stop.
    Accordingly, we reverse.

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    joeroket wrote:
    Mainsail wrote:
    Can the police randomly stop the driver of a Corvette to make sure he has a driver’s license? No, and he cannot use the rational that the car is capable of going above the speed limit, or that it’s capable of outrunning their Crown Vics. If he sees a Corvette drive past, and there’s no violation of any traffic laws, he must assume that the driver is legal.
    Not completely true. WSP has the power given to them by law to stop and check licenses and/or inspect vehicles. Mind you that this only applies to WSP and no other agency.
    I believe this would be completly unconstitutional under the fourth ammendment, would it not?

  24. #24
    Regular Member Mainsail's Avatar
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    Here’s a new opinion on the scope of a Terry stop and what constitutes a ‘seizure’. I agree with the dissenting opinion and hope they appeal it to the State Supreme Court. That does NOT mean I support the defendant in the case, but I think he got railroaded by not knowing his rights.

    State v Harrington
    State v Harrington Dissent

  25. #25
    Regular Member Mainsail's Avatar
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    This is from the State Supreme Court overturning an Appeals Court decision:

    State v. Setterstrom



    The Fourth Amendment forbids violations of "[t]he right of the people to be secure in their persons, houses, papers, and effects,against unreasonable searches and seizures." The Fourteenth Amendment applies the Fourth Amendment to the states. Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). Article I, section 7 reads: "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." This provision provides greater protection than the Fourth Amendment, Rankin, 151 Wn.2d at 694, so we cite Washington cases applying article I, section 7 over federal cases applying the Fourth Amendment.

    Without probable cause and a warrant, an officer is limited in what he can do. He cannot arrest a suspect; he cannot conduct a broad search. State v. Hudson, 124 Wn.2d 107, 112, 874 P.2d 160 (1994). An officer may, though, frisk a person for weapons, but only if (1) he justifiably stopped the person before the frisk, (2) he has a reasonable concern of danger, and (3) the frisk's scope is limited to finding weapons. State v. Collins, 121 Wn.2d 168, 173, 847 P.2d 919 (1993). The failure of any of these makes the frisk unlawful and the evidence seized inadmissible.

    To justify a frisk without probable cause to arrest, an officer must have a reasonable belief, based on objective facts, that the suspect is armed and presently dangerous. Collins, 121 Wn.2d at 173. Reasonable belief that the suspect is armed and presently dangerous means, "'some basis from which the court can determine that the detention was not arbitrary or harassing.

    We do not find such a basis here. The police received an anonymous call claiming Setterstrom was under the influence, heard a lie about his name, and observed his nervous, fidgety behavior. The record shows no threatening gestures or words. Setterstrom did not even stand. At most, the record shows that Setterstrom was under the influence; this is not a crime in itself. Moreover, Setterstrom was lawfully in a public area of the DSHS building, filling out a DSHS benefits form. It seems likely that some people filling out benefits forms exhibit erratic behavior, making employment difficult and benefits applicable. This is not a situation where the officers encountered Setterstrom in a dark alley in a crime-ridden area. See State v. Glover, 116 Wn.2d 509, 514, 806 P.2d 760 (1991). Lt. Stevens has been on the force for 20 years, three of them spent in the narcotics division. He may, of course, rely on this experience in deciding how to act. Id. Surely officers may protect themselves when the situation reasonably appears dangerous, but a frisk is a narrow exception to the rule that searches require warrants. The courts must be jealous guardians of the exception in order to protect the rights of citizens.

    Conclusion

    We hold that the officer did not have justification to frisk Setterstrom. Unless already holding a suspect legitimately, officers must have some basis beyond nervousness and lying to justify the intrusion of a frisk. The officer
    here lacked such a basis.

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