State v. BarkerState v. Barker
- Reporters:
- ,
- Before:
- Madsen, Alexander, Smith, Johnson, Sanders, Ireland, Bridge, Chambers, Owens (en banc)
In 1996, an Oregon state officer pursued the defendant into Washington and detained him until a Washington state trooper arrived and arrested the defendant for driving while under the influence of intoxicants. The trial court held that the Oregon officer lacked authority to arrest the defendant, and suppressed all evidence flowing from the arrest, effectively ending the case. On discretionary review sought by the State, the Court of Appeals agreed that the arrest violated
We hold that probable cause alone did not provide the constitutionally required authority of law for the Oregon officer‘s arrest of the defendant, and accordingly reverse the Court of Appeals.
FACTS
On April 18, 1996, Oregon State Police Officer Kathryn Wall noticed defendant Todd D. Barker driving north on I-205, near the bridge over the Columbia River, at an excessive rate of speed. Officer Wall was also northbound, about two miles behind Barker, driving an unmarked car. She increased her rate of speed to 90 miles per hour while trying to catch Barker, whose speed she estimated at 100 miles per hour. She saw him make unsafe lane changes, and at times follow other traffic too closely. She tried to stop him on the bridge, and finally caught up to him and stopped him near the exit to Washington Highway 14 at about 11:30 p.m. Wall detained Barker and called Oregon Dispatch, which advised Wall to wait for a Washington state patrol officer, and called the Washington State Patrol. A Washington state trooper arrived shortly and arrested Barker for driving while under the influence of intoxicants.
Officer Wall was on regular routine patrol at the time of the stop. She had been an Oregon State Police Officer for 14 years, and had completed basic officer training in Oregon as well as annual training sessions. However, there was no evidence presented that Officer Wall had ever completed a training program as required by
The Clark County Prosecutor charged Barker with driving while under the influence of intoxicants. Barker moved to suppress all of the evidence flowing from the stop, contending that Wall lacked authority to stop him in Washington because she had not completed the training required by
The State appealed. Clark County Superior Court affirmed. The State then sought discretionary review, which Division Two granted. The Court of Appeals reversed, reasoning that Wall‘s conduct violated
Barker then petitioned for discretionary review, which this court granted.
ANALYSIS
A respondent must raise in an answer to the petition for review any issue that the respondent wants this court to address. RAP 13.4(d). This court ordinarily will not review issues not presented in the petition for review or the answer. RAP 13.7(b); see State v. Bobic, 140 Wash.2d 250, 258, 996 P.2d 610 (2000) (respondent‘s failure to raise issue precluded review of issue); Estate of Jordan v. Hartford Accident & Indem. Co., 120 Wash.2d 490, 496, 844 P.2d 403 (1993) (same); Honcoop v. State, 111 Wash.2d 182, 193, 759 P.2d 1188 (1988) (same).
The State did not file an answer to Barker‘s petition for review, and has not raised as an issue the propriety of the Court of Appeals’ holding that Officer Wall lacked statutory authority to arrest Barker. The State also did not seek review in the Court of Appeals of the trial court‘s determination that the officer lacked authority to make a common law citizen‘s arrest. The Court of Appeals asked for additional briefing on this question, but then said only that “Wall‘s stop was constitutional to the extent she was acting as a private citizen.” 98 Wash.App. at 445, 990 P.2d 438. The court did not, however, actually decide whether or not Officer Wall was acting as a private citizen. As noted, the State has not filed an answer, and thus has not raised as an issue whether Wall was acting as a private citizen with authority to make a common law citizen‘s arrest.
We accordingly do not reach any issues concerning whether Officer Wall had statutory or common law authority to arrest Barker in Washington. We accept, for purposes of our review, the determination of the courts below that she did not.1
In his petition for review, Barker contends that Officer Wall‘s actions violated article I, section 7 of the Washington State Constitution because the stop and detention were without “authority of law.” The State contends the Court of Appeals’ ruling should be upheld, arguing that Wall had probable cause to arrest Barker for a violation of the Oregon reckless driving statute.
Article I, section 7 provides that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” A traffic stop is a seizure for purposes of article I, section 7 and a disturbance of one‘s private affairs. State v. Parker, 139 Wash.2d 486, 494-96, 987 P.2d 73 (1999); State v. Ladson, 138 Wash.2d 343, 979 P.2d 833 (1999).
Article I, section 7 itself, of course, is not a source of authority of law to arrest or stop and detain a person in Washington. There must be some other source of authority of law for a constitutional warrantless arrest. Contrary to the State‘s argument, probable cause alone does not establish authority of law for an officer outside his or her jurisdiction to effect a warrantless arrest.
At common law, police officers had authority to make warrantless arrests where a misdemeanor was committed in the officer‘s presence, or the officer had probable cause to believe that the arrested individual committed a felony. State v. Wilson, 70 Wash.2d 638, 641, 424 P.2d 650 (1967). However, at common law a law enforcement officer generally did not have authority to arrest outside his or her jurisdiction. Irwin v. Dep‘t of Motor Vehicles, 10 Wash.App. 369, 371, 517 P.2d 619 (1974) (citing, among other things, Edward C. Fisher, Laws of Arrest § 142, at 314 (1967); 5 Am.Jur.2d Arrest § 50 (1962); 6 C.J.S. Arrest § 12b(2) (1937)); State v. Rasmussen, 70 Wash.App. 853, 855, 855 P.2d 1206 (1993); see 5 Am.Jur.2d Arrest § 69 (1995). Although an exception to this rule existed where the officer was in “fresh pursuit” of one who had committed a felony, Rasmussen, 70 Wash.App. at 855, 855 P.2d 1206, the exception would not be applicable
At common law, an officer outside his or her jurisdiction did not acquire authority to arrest merely because probable cause existed.
Neither the common law nor statutory authority allows for an out-of-state officer to arrest within Washington based solely upon probable cause.3
Officer Wall lacked statutory or common law authority to arrest Barker in Washington, and existence of probable cause does not render the stop constitutionally valid. The arrest was “without authority of law” and therefore violative of article I, section 7.
The article I, section 7 violation requires suppression of the evidence obtained as a result of the unconstitutionality. State v. Young, 123 Wash.2d 173, 196, 867 P.2d 593 (1994); State v. Boland, 115 Wash.2d 571, 582, 800 P.2d 1112 (1990); State v. White, 97 Wash.2d 92, 108-12, 640 P.2d 1061 (1982).4
The Court of Appeals is reversed.
ALEXANDER, C.J., SMITH, JOHNSON, SANDERS, IRELAND, BRIDGE, CHAMBERS and OWENS, JJ., concur.