157 Wash. 2d 307 | Wash. | 2006
Lead Opinion
This case involves a constitutional challenge to RCW 10.31.100(1), which codifies and expands the common law rule allowing for warrantless misdemeanor arrests only when the misdemeanor occurs in the officer’s presence. The statute authorizes warrantless arrests in certain circumstances. In this case, the petitioner was arrested without a warrant for a misdemeanor involving the use of cannabis not occurring in the presence of the officer. In a search incident to the arrest, methamphetamine was discovered in the petitioner’s purse. Petitioner moved to suppress the methamphetamine evidence, arguing the underlying arrest was unlawful. The trial court granted the petitioner’s motion and the Court of Appeals reversed. We affirm the appellate court’s decision but on different grounds. We hold RCW 10.31.100(1) does not violate article I, section 7 of the Washington State Constitution.
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*311 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 [constitutional rights]. 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, RCW 69.50.412(1),
¶3 Does RCW 10.31.100(1) create a valid exception to the common law “in the presence” requirement for warrantless misdemeanor arrests under article I, section 7 of the state constitution?
ANALYSIS
¶4 RCW 10.31.100(1) reads:
[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 under RCW 9A.52.070 or 9A.52.080, shall have the authority to arrest the person.
¶5 Walker argues this statute is unconstitutional under article I, section 7. Walker first contends article I, section 7 of the constitution incorporates the common law rule that an officer may not make a warrantless arrest for a misdemeanor unless the misdemeanor was committed in the presence of the officer. Walker notes that while an exception existed at common law for misdemeanors amounting to a “breach of the peace,” there was no exception at common law for cannabis. Thus, Walker concludes, RCW 10.31.100(1) is permissible only insofar as it codifies the common law rule; however, any other exception relating to offenses not committed in the presence of an officer is unconstitutional. Walker asserts the legislature is attempting to legislate away the warrant requirement embodied in our state constitution, one exception at a time.
¶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
¶7 Article I, section 7 reads “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law” and requires a two-step analysis: was there a disturbance of one’s private affairs and, if so, was the disturbance authorized by law? In re Pers. Restraint of Maxfield, 133 Wn.2d 332, 339, 945 P.2d 196 (1997). In reviewing constitutional issues under the Fourth Amendment and article I, section 7, it is well established that the federal constitution provides the minimum level of protection against warrantless searches and seizures and our state constitution generally provides greater protection. When presented with arguments under both the state and federal constitutions, we generally review the state constitution arguments first. State v. Carter, 151 Wn.2d 118, 125, 85 P.3d 887 (2004).
¶9 This court has defined the scope of article I, section 7 as protecting “those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.” State v. Myrick, 102 Wn.2d 506, 511, 688 P.2d 151 (1984). Inherent in the process of defining the scope of protection under article I, section 7 is an examination of both the history of the interest at stake, relevant case law and statutes, and the current implications of recognizing or not recognizing the interest. State v. McKinney, 148 Wn.2d 20, 29, 60 P.3d 46 (2002).
¶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 Wn.2d 517, 523, 111 P.3d 1162 (2005). While
¶11 In State v. Hornaday, 105 Wn.2d 120, 713 P.2d 71 (1986), a minor defendant challenged his arrest for possession of alcohol. Under former RCW 10.31.100 (1981), a minor in possession of alcohol was not a listed exception to the general warrant requirement of the statute. In finding the arrest illegal, we stated that it was “for the Legislature to extend the authority of law enforcement officers to arrest for misdemeanors not committed in their presence by extending the list of exceptions contained in RCW 10.31.100 . . . , thereby eliminating the requirement that the consumption or possession of alcohol occur ‘in the presence’ of the officer. This is a legislative, not a judicial, prerogative.” Hornaday, 105 Wn.2d at 130. In response to our holding, the legislature expanded RCW 10.31.100(1) to explicitly include RCW 66.44.270, the minor in possession statute. Laws of 1987, ch. 154, § 1.
¶12 Finally, in a challenge to an arrest made pursuant to former RCW 75.10.020(2) (1983), repealed by Laws of 1998,
¶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. RCW 10.31.100, though in derogation of the common law, accords with the purpose of the common law “in the presence” rule. At common law, the “in the presence” rule was a balance of “accommodating the public need for the most certain and immediate arrest of criminal suspects with the requirement of magisterial oversight to protect against mistaken insults to privacy,” with the result that “only in the most serious of cases could the warrant be dispensed with.” United States v. Watson, 423 U.S. 411, 442, 96 S. Ct. 820, 46 L. Ed. 2d 598 (1976) (Marshall, J., dissenting). See also Carroll v. United States, 267 U.S. 132, 157, 45 S. Ct. 280, 69 L. Ed. 543 (1925) (stating “the reason for arrest without warrant on a reliable report of a felony [at common law] was because the public safety and the due apprehension of criminals charged with heinous offenses required that such arrests should be made at once without warrant”). RCW 10.31.100 is consistent with the spirit of the common law “in the presence” rule because it favors arrests made pursuant to a warrant but allows for exceptions in limited situations. These exceptions reflect the legislature’s determination that the need for immediate arrest outweighs the possibility of a mistaken arrest. We note the exceptions listed in RCW 10.31.100 address social problems either not recognized or not present during com
¶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, “RCW 10.31.100 does not change this common law but proves it by enumerating certain exceptions.” Staats, 139 Wn.2d at 767.
¶15 Finally, we find no history that an absolute constitutional right to be free from warrantless misdemeanor arrests exists. For example, in 1893 it was a misdemeanor to “wantonly or cruelly pluck, maim, torture, deprive of necessary food or drink, or wantonly kill any fowl or insectivorous bird.” Laws of 1893, ch. XXVII, § 8. The legislation provided that “any . .. member of any humane society, or society for the prevention of cruelty to animals, may cause the immediate arrest of any person engaged in, or who shall have committed such cruelties, upon making
¶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,
¶18 Given the legislative history in our state, the original purpose of the requirement, the overwhelming practice of other jurisdictions to allow for limited warrant-less misdemeanor arrests not committed in the presence of the arresting officer, and the statute’s probable cause requirement, we find RCW 10.31.100 constitutional.
¶19 Although Walker appears to believe the Fourth Amendment does not apply to her situation, amicus Washington Association of Criminal Defense Lawyers (WACDL) submitted briefing arguing the Fourth Amendment incorporates the “in the presence” rule for warrantless misdemeanor arrests. WACDL relies on the discussion of common law warrantless misdemeanor arrests in Atwater, 532 U.S. at 326-27, and the intrusive nature of an arrest to conclude the Fourth Amendment prohibits warrantless misdemeanor arrests where the arresting officer was not present when the misdemeanor occurred.
¶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
¶21 The Fourth Amendment reads: “[t]he 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.” The Fourth Amendment must be read in light of the traditional protections afforded by the common law at the time it was drafted. Thus, our first step is to assess WACDL’s claim that the common law strictly prohibited warrantless misdemeanor arrests. Atwater, 532 U.S. at 326-27.
¶22 In Atwater, the Court engaged in an extensive review of the common law at the time the Fourth Amendment was adopted. Atwater, 532 U.S. at 327-36. The Court, which ultimately concluded the amendment did not incorporate the “breach of peace” rule for warrantless misdemeanor arrests, found “statements about the common law of warrantless misdemeanor arrest simply are not uniform.” Atwater, 532 U.S. at 329. Having found the common law was not dispositive of the issue, the Court went on to look at how the states viewed the common law at the time
¶23 For purposes of our Fourth Amendment analysis, we will assume without deciding the common law required strict adherence to the “in the presence” rule. However, the Fourth and Seventh Circuit appellate courts, as discussed below, also recognized the “in the presence” rule as the common law rule but concluded the Fourth Amendment did not require it. Woods v. City of Chicago, 234 F.3d 979, 992 (7th Cir. 2000); Street v. Surdyka, 492 F.2d 368, 371 (4th Cir. 1974). We therefore find the assumption that the common law uniformly required strict adherence to the “in the presence” rule is not dispositive of the issue.
¶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” rule as the common law rule, it also suggested the rule could be relaxed by statute. Surdyka, 492 F.2d at 371 (citing Elk v. United States, 177 U.S. 529, 535, 20 S. Ct. 729, 44 L. Ed. 874 (1900) (“[w]e do not find any statute of the United States or of the State of South Dakota giving any right to these men to arrest an individual without a warrant on a charge of misdemeanor not committed in their presence”)). The Fourth Circuit also based its conclusion on the fact that
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 Fourth Amendment did not incorporate the common law “in the presence” rule for warrant-less misdemeanor arrests. Because we conclude RCW 10.31.100(1) is constitutional, we find the petitioner’s underlying arrest was lawful. We affirm the Court of Appeals and remand for further proceedings.
Alexander, C.J., and Madsen, Bridge, Owens, and Fairhurst, JJ., concur.
1 It is not illegal in Washington to possess drug paraphernalia. It is illegal to use drug paraphernalia under RCW 69.50.412(1).
The statute reads: “[i]t is unlawful for any person to use drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance. Any person who violates this subsection is guilty of a misdemeanor.”
The first statute cited was passed in 1893 and allowed for misdemeanor arrests of persons who abused fowl or insectivorous birds. Laws of 1893, ch. XXVII, § 9. The statute survives as RCW 16.52.015(4). The respondent also cites laws relating to prevention of cruelty to animals, Laws of 1901, ch. CXLVI, § 11; protection and sale of birds and fishes, Laws op 1911, ch. 90, § 2; game code, Laws of 1925, ch. 178, § 21, today found in RCW 77.15.092 and .094; and weights and measures, Laws op 1927, ch. 194, § 7, today found in RCW 19.94.260.
State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).
Walker’s characterization oí Erie is misleading. The case actually holds that in diversity jurisdiction cases, a federal court must apply the law of the state as defined either by state statute or the state’s highest court, not a general common law. Thus, as amicus Washington Association of Criminal Defense Lawyers notes, the question of whether the Fourth Amendment incorporated the common law “in the presence” requirement remains unanswered by the United States Supreme Court.
Woods v. City of Chicago, 234 F.3d 979 (7th Cir. 2000); Vargas-Badillo v. Diaz-Torres, 114 F.3d 3 (1st Cir. 1997); United States v. Smith, 73 F.3d 1414 (6th Cir. 1996); Fields v. City of Houston, 922 F.2d 1183 (5th Cir. 1991); Barry v. Fowler, 902 F.2d 770 (9th Cir. 1990); Street v. Surdyka, 492 F.2d 368 (4th Cir. 1974).
Woods, 234 F.3d 979; Vargas-Badillo, 114 F.3d 3; Smith, 73 F.3d 1414; Fields, 922 F.2d 1183; Barry, 902 F.2d 770.
Concurrence Opinion
¶26
(concurring) — 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
¶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 Wn.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.” Const, art. I, § 7. With certain narrow exceptions, authority of law means a warrant. State v. Ladson, 138 Wn.2d 343, 349-50, 979 P.2d 833 (1999). The warrant requirement was intended to create a system in which, generally, the decision that an arrest or search is an appropriate exercise of governmental power will be made by a neutral and detached magistrate, instead of by the officer engaged in the “often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 13-14, 68 S. Ct. 367, 92 L. Ed. 436 (1948). Because the court’s holding today follows in the steps of others that have the potential to seriously erode that constitutional layer of protection, cf. State ex rel. McDonald v. Whatcom County
¶29 I agree with the majority that the legislature may grant police officers authority to arrest subject to constitutional limitations. Majority at 314. However, the exceptions to the general warrant requirement are of constitutional stature, and the legislature may not extend those exceptions beyond the limits of article I, section 7.
“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 Wn.2d at 352 n.3 (quoting In re Pers. Restraint of Maxfield, 133 Wn.2d 332, 345-46, 945 P.2d 196 (1997) (Madsen, J., concurring)). Accord United States v. United States Dist. Court, 407 U.S. 297, 317, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972) (warrant requirement under Fourth Amendment “accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government”). I would, therefore, hold that RCW 10.31.100(1) is unconstitutional insofar as it purports to authorize warrantless arrests for cannabis related misdemeanors even if not committed in the presence of an officer.
¶30 While the legislature may authorize courts to issue warrants, it may not dispense with the warrant requirement altogether. Ladson, 138 Wn.2d at 352. See also State v. O’Neill, 148 Wn.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 Wn.2d 260, 280 n.11, 868 P.2d 134 (1994) (rejecting the position that “a statute is categorically
¶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 Wn.2d 686, 691, 674 P.2d 1240 (1983) (quoting State v. McCollum, 17 Wn.2d 85, 96, 136 P.2d 165, 141 P.2d 613 (1943) (Millard, J., dissenting)), overruled in part by State v. Stroud, 106 Wn.2d 144, 720 P.2d 436 (1986); see also State v. Duncan, 146 Wn.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 the common law.’ ” Ladson, 138 Wn.2d at 349-50 (quoting McCready, 123 Wn.2d at 273). Those exceptions are narrowly drawn. See, e.g., State v. Jones, 146 Wn.2d 328, 335, 45 P.3d 1062 (2002). I would hold that under article I, section 7, exceptions to the warrant requirement must be firmly rooted in principles recognized in 1889 when our constitution was adopted. See Ringer, 100 Wn.2d at 690 (“In construing Const, art. 1, § 7 we look initially to its origins and to the law of search and seizure at the time our constitution was adopted.”).
¶32 When article I, section 7 was adopted, the common law permitted warrantless arrests for a felony on probable cause and for misdemeanors committed in the presence of the officer. Ringer, 100 Wn.2d at 691; see also Charles W. Johnson, Survey of Washington Search and Seizure Law: 2005 Update, 28 Seattle U. L. Rev. 467, 591 (2005). The warrant requirement is designed to reduce the “dangers of unlimited and unreasonable arrests of persons who are not at the moment committing any crime.” Trupiano v. United States, 334 U.S. 699, 705, 68 S. Ct. 1229, 92 L. Ed. 1663 (1948), overruled in part on other grounds by United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653 (1950). But in some circumstances, the public good of investigating, stopping, or preventing crime outweighs the risk to the individual of erroneous arrest. In the case of felonies, the seriousness of the crime weighs more heavily on the side of the public good. See, e.g., Carroll v. United
¶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 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 his own eyes”); Trupiano, 334 U.S. at 705 (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).
¶36 The development of Washington law since adoption of article I, section 7 generally reflects this principle. Except for the relatively recent cannabis exception,
¶37 I would hold that the statute permitting warrantless arrest for cannabis related misdemeanors not occurring in the officer’s presence violates article I, section 7. The substantial risk of erroneous arrest exists because the alleged crime did not take place in the presence of the arresting officer. There was no breach of the peace because cannabis related crimes, such as possession and use of marijuana, are not violent crimes. See State v. Ramirez, 49 Wn. App. 814, 820-21, 746 P.2d 344 (1987).
¶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.
Sanders and J.M. Johnson, JJ., concur with Chambers, J.
The statute was first enacted in 1969. See Laws of 1969, 1st Ex. Sess., ch. 198, § 1.