State v. WalkerState v. Walker
¶ 1 This case involves a constitutional challenge to
FACTUAL AND PROCEDURAL HISTORY
¶ 2 On July 11, 2003, Colfax police officers and Whitman County deputies were called to investigate a burglary. During their investigation, the officers approached a parked car in which petitioner Ashley Walker and another individual, Richard Kennedy, were sitting. According to the police report of Deputy Keith Cooper, the following transpired:
I asked Kennedy and Walker if they had been drinking. Kennedy said he had been drinking. Walker said she did not drink. While talking to Kennedy I noticed the pupils of his eyes were extremely dialated [sic]. I asked If [sic] they had smoked any marijuana. Kennedy said he could not use drugs because he took random urinary analysis. Walker said she smoked marijuana before she left her house in Spokane. I asked if she had any marijuana with her. Walker said she did not have any marijuana. Walker said she had a marijuana pipe in her bag. I asked Walker if she would get the pipe for me. Walker opened her purse and pulled out a blue glass pipe and handed it to me. Walker immediatly [sic] closed her purse after she gave me the pipe. I looked at the pipe and noticed black residue in the bowl of the pipe.
I told Officer Szambelan Walker gave me a pipe she had in her purse. Officer Szambelan told Walker to stand up and told her she was under arrest for possession of drug paraphernalia.1 He placed her in handcuffs and advised her of her CR‘s. Officer Szambelan placed her in the seat of his patrol car. Officer Szambelan searched Walker‘s purse incident to lawful arrest. Upon searching her purse he located 2 glass pipes. He also found numerous small plastic baggies containing a white powdery substance.
Clerk‘s Papers at 12-13. The white powdery substance found in Walker‘s purse was methamphetamine. Walker was charged with one count of possession of methamphetamine with intent to deliver. Walker brought a motion in superior court to suppress the methamphetamine evidence, arguing the underlying arrest was unlawful. After oral argument, the court granted Walker‘s motion and dismissed the charges. The court reasoned that the crime for which Walker was charged,
ISSUE PRESENTED
¶ 3 Does
ANALYSIS
¶ 4
[a]ny police officer having probable cause to believe that a person has committed or is committing a misdemeanor or gross misdemeanor, involving physical harm or threats of harm to any person or property or the unlawful taking of property or involving the use or possession of cannabis, or involving the acquisition, possession, or consumption of alcohol by a person under the age of twenty-one years under
RCW 66.44.270 , or involving criminal trespass underRCW 9A.52.070 or9A.52.080 , shall have the authority to arrest the person.
¶ 5 Walker argues this statute is unconstitutional under
¶ 6 The State argues Washington citizens have never held an absolute right to be free from warrantless misdemeanor arrests. The State points to several statutes throughout Washington‘s history allowing for such arrests.3 Additionally, the State contends
¶ 7
¶ 8 Walker, in an abbreviated Gunwall4 analysis, points out that the United States Supreme Court has yet to determine if the federal constitution embodies the “in the presence” common law rule. See Atwater v. City of Lago Vista, 532 U.S. 318, 341 n. 11, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001) (holding the
¶ 9 This court has defined the scope of
¶ 10 The legislature, under its police powers, may grant police officers authority to arrest for certain crimes subject to public policy and constitutional limitations. State v. Pulfrey, 154 Wash.2d 517, 523, 111 P.3d 1162 (2005). While our cases have not specifically addressed the constitutionality of the legislative authority at issue here, cases have discussed this practice with approval. For example, in a challenge to former
¶ 11 In State v. Hornaday, 105 Wash.2d 120, 713 P.2d 71 (1986), a minor defendant challenged his arrest for possession of alcohol. Under former
¶ 12 Finally, in a challenge to an arrest made pursuant to former
¶ 13 Thus, we have consistently recognized that the legislature may expand a police officer‘s authority to arrest, even when the authority is in derogation of the common law.
¶ 14 In support of our recognition that the legislature may expand arrest authority for police officers, we recognize the legislature has authority to classify crimes as either felonies or misdemeanors and thus, to initially determine the arrest authority needed. Many crimes that were originally misdemeanors at common law are now classified as felonies. The legislature has, therefore, determined these crimes represent a greater threat to society, deserve a greater punishment for those who commit them, and are serious enough to outweigh the usual warrant requirement where the arrest is based on probable cause. By reclassifying these crimes as felonies, the legislature has, in effect, changed the authority needed for arrest from the general warrant requirement to probable cause. Because the legislature has the authority to classify crimes as either felonies or misdemeanors, the legislature, by extension, has the authority to determine arrest requirements, subject to constitutional and public policy limits. This allows the legislature to balance the privacy rights of Washington citizens against the social ills confronting the citizens of Washington in order to determine when exceptions to the warrant requirement are necessary. As we explained in Staats, ”
¶ 15 Finally, we find no history that an absolute constitutional right to be free from warrantless misdemeanor arrests exists.
¶ 16 The statute at issue, when originally enacted in 1969, contained three exceptions: misdemeanors or gross misdemeanors involving physical harm or threats of harm to any person or property; the unlawful taking of property; and misdemeanors or gross misdemeanors involving the use or possession of cannabis. Laws of 1969, 1st Ex.Sess., ch. 198, § 1. As Walker notes, the statute has been amended at least 20 times since then and has been expanded to include 24 exceptions. These exceptions include underage drinking, driving under the influence, violations of protection orders, and situations involving domestic violence. Rather than supporting Walker‘s position, this history cuts against it. There is no tradition of an absolute right to be free from warrantless misdemeanor arrests. The authority to arrest has always been subject to legislative determination. We can find no cases from this state or any other state, nor any statutes or other laws that support the argument that a person‘s private affairs encompass the constitutional right to be free from warrantless misdemeanor arrests. So long as legislative authority exists and any such arrest is based on probable cause, the arrest is valid.
¶ 17 This conclusion is supported by similar statutes in other states. Amicus Washington Association of Prosecuting Attorneys notes that every state provides for certain warrantless misdemeanor arrests involving domestic violence, even if they are not committed in the officer‘s presence. See Cheryl Hanna, No Right to Choose: Mandated Victim Participation in Domestic Violence Prosecutions, 109 HARV. L. REV. 1849, 1859 (1996); see also William A. Schroeder, Warrantless Misdemeanor Arrests and the Fourth Amendment, 58 MO. L. REV. 771, 811-17 (1993) (stating many jurisdictions have a general “in the presence” rule but also allow for warrantless misdemeanor arrests under certain circumstances or for specified misdemeanors). Significantly, all of these statutes, including the one at issue here, require the officer to have probable cause before making an arrest. Probable cause is a determination of whether the arresting officer could reasonably believe the person to be arrested has committed the crime. State v. Fisher, 145 Wash.2d 209, 221, 35 P.3d 366 (2001). It is the probable cause requirement in such statutes that makes them constitutional. Erickson v. City Court, 105 Ariz. 19, 458 P.2d 953 (1969) (distinguishing a constitutional Arizona statute allowing for warrantless misdemeanor arrests based on probable cause from an unconstitutional Alabama statute that had no probable cause requirement). Again, we find no case supporting a contrary conclusion.
¶ 18 Given the legislative history in our state, the original purpose of the requirement, the overwhelming practice of other jurisdictions to allow for limited warrantless misdemeanor arrests not committed in the presence of the arresting officer, and the statute‘s probable cause requirement, we find
¶ 19 Although Walker appears to believe the
¶ 20 The State points out the United States Supreme Court has never ruled directly on this issue but notes that every federal circuit court that has addressed the issue has found the
¶ 21 The
¶ 22 In Atwater, the Court engaged in an extensive review of the common law at the time the
¶ 23 For purposes of our
¶ 24 After declaring the common law required the “in the presence” rule, the federal appellate courts went on to further analyze the issue, focusing on how the Supreme Court, Congress, and the states have viewed the common law. For example, in Surdyka, the court noted that while the Supreme Court has referenced the “in the presence”
CONCLUSION
¶ 25 We find no constitutional basis to support an absolute right to be free from warrantless misdemeanor arrests in the state of Washington. The legislature may provide exceptions to the common law “in the presence” rule to allow for such arrests in response to changing social conditions. We also find the
Concurring: ALEXANDER, C.J., and MADSEN, BRIDGE, OWENS and FAIRHURST, JJ.
CHAMBERS, J. (concurring).
¶ 26 I concur in result because the officer had proper grounds to arrest. Ashley Walker‘s arrest was valid because when she showed the officer a marijuana pipe with visible residue on it, the officer had probable cause to believe that she was committing misdemeanor possession of marijuana in his presence. See
¶ 27 I would, therefore, avoid the constitutional question because the issue of the validity of the arrest can be resolved on other grounds. See Isla Verde Int‘l Holdings, Inc. v. City of Camas, 146 Wash.2d 740, 752, 49 P.3d 867 (2002). Since the majority has chosen to address the constitutional question, I write separately to express my concerns about the majority‘s conclusion that the legislature may validly create new exceptions to the misdemeanor arrest rule without any meaningful review by this court.
¶ 28 Article I, section 7 of Washington‘s constitution protects the people of this state from searches and seizures without “authority of law.”
¶ 29 I agree with the majority that the legislature may grant police officers authority to arrest subject to constitutional limitations. Majority at 117. However, the exceptions to the general warrant requirement are of constitutional stature, and the legislature may not extend those exceptions beyond the limits of
“Except in the rarest of circumstances, the `authority of law’ required to justify a search pursuant to
article I, section 7 consists of a valid search warrant or subpoena issued by a neutral magistrate. This court has never found that a statute requiring a procedure less than a search warrant or subpoena constitutes `authority of law’ justifying an intrusion into the `private affairs’ of its citizens. This defies the very nature of our constitutional scheme.”
Ladson, 138 Wash.2d at 352 n. 3, 979 P.2d 833 (quoting In re Pers. Restraint of Maxfield, 133 Wash.2d 332, 345-46, 945 P.2d 196 (1997) (Madsen, J., concurring)). Accord United States v. United States District Court, 407 U.S. 297, 317, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) (warrant requirement under
¶ 30 While the legislature may authorize courts to issue warrants, it may not dispense with the warrant requirement altogether. Ladson, 138 Wash.2d at 352, 979 P.2d 833. See also State v. O‘Neill, 148 Wash.2d 564, 595, 62 P.3d 489 (2003) (Chambers, J., concurring). Nor may it unilaterally dispense with the requirement in specific situations by creating new statutory exceptions unrooted in the common law. City of Seattle v. McCready, 123 Wash.2d 260, 280 n. 11, 868 P.2d 134 (1994) (rejecting the position that “a statute is categorically sufficient to provide the authority of law necessary to satisfy
¶ 31 Article I, section 7 “is declaratory of the common-law right of the citizen not to be subjected to search or seizure without warrant.” State v. Ringer, 100 Wash.2d 686, 691, 674 P.2d 1240 (1983) (quoting State v. McCollum, 17 Wash.2d 85, 96, 136 P.2d 165, 141 P.2d 613 (1943) (Millard, J., dissenting)), overruled in party by State v. Stroud, 106 Wash.2d 144, 720 P.2d 436 (1986); see also State v. Duncan, 146 Wash.2d 166, 171, 43 P.3d 513 (2002). This court has never approved any exception to that general rule except those based on “`well-established principles of common law.‘” Ladson, 138 Wash.2d at 349-50, 979 P.2d 833 (quoting McCready, 123 Wash.2d at 273, 868 P.2d 134). Those exceptions are narrowly drawn. See, e.g., State v. Jones, 146 Wash.2d 328, 335, 45 P.3d 1062 (2002). I would hold that under
¶ 32 When
¶ 33 In the case of misdemeanors, the thumb is taken off the scale and the balance tips back in favor of requiring a warrant. See Welsh v. Wisconsin, 466 U.S. 740, 754 n. 14, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984) (“[T]he penalty that may attach to any particular offense seems to provide the clearest and most consistent indication of the State‘s interest in arresting individuals suspected of committing that offense.“).
¶ 34 When a misdemeanor is committed in the officer‘s presence, however, the risk of error is so decreased that the scale tips toward allowing immediate arrest. Although seriousness does not weigh on the side of the public need, the potential of unfair burden on an individual is greatly reduced. See, e.g., United States v. Watson, 423 U.S. 411, 426-27 n. 1, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976) (Powell, J., concurring) (observing that there is no reason to require a warrant where an offense is committed in the officer‘s presence; “such an arrest presents no danger that an innocent person might be ensnared, since the officer observes both the crime and the culprit with this own eyes.“); Trupiano, 334 U.S. at 705, 68 S.Ct. 1229 (The dangers of unlimited and unreasonable arrests “are not present where a felony plainly occurs before the eyes of an officer of the law.“); Gramenos v. Jewel Cos., 797 F.2d 432, 441 (7th Cir.1986) (Making certain that “the officer has seen the crime committed ... greatly reduces the chance of mistaken arrest.“).
¶ 35 When the misdemeanor constitutes a breach of the peace, the thumb comes down again on the side of the public good. A breach of the peace includes at the very least a “threat of violence.” See Atwater v. City of Lago Vista, 532 U.S. 318, 328 n. 2, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). The reason for arrest for misdemeanors without warrant at common law was “promptly to suppress breaches of the peace.” See Carroll, 267 U.S. at 157, 45 S.Ct. 280; William A. Schroeder, Warrantless Arrests and the Fourth Amendment, 58 MO. L. REV. 771, 789 (1993) (“English common law `permitted immediate arrest of those committing or threatening to commit a breach of the peace in order to protect the people of the community from acts of violence.‘“) (quoting EDWARD C. FISHER, LAWS OF ARREST § 87, at 188 (1987)). Authorities are divided on whether, under the common law, warrantless arrests were permitted only for breaches of the peace committed in the presence of the officer, or whether breaches of the peace constituted an exception to the presence requirement. See Atwater, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549. But there is no evidence of any exception to the presence requirement other than for breaches of the peace. See id.
¶ 36 The development of Washington law since adoption of
¶ 38 I respectfully disagree with the majority‘s assertion that because the legislature can designate an offense as a felony or a misdemeanor, it must necessarily also have the power to determine the standards under which an arrest may occur. Punishment for a crime is a different matter altogether from arrest. Determining the punishment for a crime is clearly within the legislature‘s power. See State v. Mulcare, 189 Wash. 625, 628, 66 P.2d 360 (1937) (“Fixing of penalties or punishments for criminal offenses is a legislative function, and the power of the legislature in that respect is plenary and subject only to constitutional provisions against excessive fines and cruel and inhuman punishment.“) (citing State v. Duff, 144 Iowa 142, 122 N.W. 829 (1909)). But arrest cannot be considered a penalty or a punishment because at the time of arrest, the detainee has not been convicted of any crime and is not subject to punishment. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (punishment may be imposed only after formal adjudication). Arrest is the “quintessential seizure.” Atwater, 532 U.S. at 360, 121 S.Ct. 1536. It is not the legislature, but the constitution, as interpreted by the courts, that determines the scope of constitutional protections such as those against unreasonable seizure. Ladson, 138 Wash.2d at 352 n. 3, 979 P.2d 833.
¶ 39 I would hold that the statute purporting to authorize Walker‘s warrantless arrest for a misdemeanor not committed in the presence of the officer and not constituting a breach of the peace, is unconstitutional. However, because Walker was validly arrested for misdemeanor possession of marijuana, committed in the presence of the officer, I concur in the result.
Concurring: SANDERS and J.M. JOHNSON, JJ.