Warrantless Searches Justified in Horrible Appeals Court RulingJonathan Rands
Search and Seizure law just took another turn from a constitutional exception to now being protected by the Constitution. Recently, the Washington State Supreme Court reaffirmed the role of Terry Searches. Prior to this case, State Of Washington v. Russell, the Court of Appeals, Division 1-issued a horrendous ruling and analyses in State v. Mecham.
Search and Seizure law just took another turn from a constitutional exception to now being protected by the Constitution. Recently, the Washington State Supreme Court reaffirmed the role of Terry Searches.
Prior to this case, State Of Washington v. Russell, the Court of Appeals, Division 1-issued a horrendous ruling and analyses in State v. Mecham. I recently wrote about Mecham and expressed disappointment in the Division One’s opinion. At the time of the last blog the Russell case had been issued which is where much criticism came from. The decision in Russell, post-Mecham is great indicator of what the Supreme Court will do if/when they review Mecham. Division One analyzed and permitted roadside field sobriety tests under the concept that they were a Terry search.
The court was correct that they are indeed a search, but rather than analyze and review whether they occurred under an exception to the warrantless search rule, they avoided the question all together and do improper analyses to get the answer the Court desired. The Russell case is an important case to show why the Court of Appeals was wrong.
The Supreme’s began their ruling with the following:
In certain situations, a police officer may briefly frisk a person to search for weapons that might pose a risk to officer and bystander safety. When justified, these protective frisks do not violate the constitutional prohibition against unreasonable invasions of individual privacy. In this case, we are asked to further define the permissible scope of these protective frisks.
The facts of the Russell case were:
An officer stopped Russell for violating several minor traffic laws. The officer recognized Russell from a previous encounter where Russell had told officers he was not armed, when in fact he had a small gun in his pocket. Fearing for his safety, the officer frisked Russell for weapons and felt a small box in Russell's pants pocket. The officer removed the box, opened it, and found a syringe filled with methamphetamine. Though he testified that he performed the search to ensure that the box did not contain a gun, the Officer admitted "that the syringe weighed only a fraction of what the pistol weighed."
The problem was not with the pat down of Mr. Russell; the problem was that the pat down revealed something that was not consistent the purpose of the search was for. Meaning, if you are searching for a gun, the warrantless search is valid because it was reasonable in this case to believe the person had a gun, but an officer is constrained to search only for the gun or like weapons. Finding a small light box that is obviously not a gun, and obviously not big enough to hold a gun, and not weighing enough to think a gun is inside went beyond the “scope” of the search.
The search under a Terry rational is to be brief, quick, and essentially as non-intrusive as possible. It is deemed to be a valid, yet warrantless search, because the brief delay an inconvenience to the person is outweighed by the interest of officer safety. This search rule was reviewed by the Court and it wrote:
As a general rule, warrantless searches and seizures are per se unreasonable, in violation of the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution. There are several narrowly drawn exceptions to that rule, and the State bears a heavy burden to prove by clear and convincing evidence that a warrantless search falls within one of those exceptions.
One exception to the warrant requirement is the so-called Terry stop and frisk that was first articulated by the Supreme Court of the United States in Terry v. Ohio. It allows an officer to conduct a limited pat-down of the outer clothing of a person in an attempt to discover weapons that could cause harm. A protective frisk is justified when an officer can point to 'specific and articulable facts' which create an objectively reasonable belief that a suspect is 'armed and presently dangerous.
The purpose of Terry frisks is to protect officer and bystander safety. An officer need only identify specific and articulable facts that create an objectively reasonable belief of danger. We would undermine the purposes of Terry and create unjustifiable risks if we hold that an officer in the field must ignore specific facts that indicate potential danger.
However, the search is not limitless, and certainly not a never-ending search in hope of finding something, as that would not be brief nor non-intrusive. As a consequence the Supreme Court revisited the holding on the Allen case and wrote, that "once it is ascertained that no weapon is involved, the government's limited authority to invade the individual's right to be free of police intrusion is spent."
The limited right to invade is spent! This is the cornerstone of the 4th Amendment right to be let alone, and there is simply no expanding it, but yet that is what the Mecham court did-they justified a warrantless search that had nothing to do with officer safety, and everything to do with DUI prosecution, and called it Terry!
At a minimum Mecham will be reversed due to using the wrong standard of review. Mecham should have been analyzed under the 4th Amendment and Article 1, Section 7 that prohibits warrantless searches without consent-with an exception. So when one reviews the current analysis of Mecham it makes even non-lawyers shake their head in wonder as to how the Court even considered such an analyses.
This is even clearer when you read the following portion from the Supremes:
Terry frisks are limited, external pat-downs to ensure safety. Any further intrusion must end as soon as an officer discovers that the suspect does not have a weapon. An officer may not search through a detainee's personal effects under the unreasonable belief that they may contain a weapon. We hold that the search of the container violated Russell's constitutional rights. We hold that the initial protective frisk was justified to protect officer safety, but the warrantless search of the container was not because it exceeded the permissible scope of a protective frisk.
Given this simple, yet strong language of the limits, how will this same Court ever uphold Mecham? It is unlikely it will.
What is fairly interesting from this is what the Supreme Court will do when faced with the issue in a Mecham of consent and refusing to provide consent to the search in the form of sobriety tests. The foreshadowing of this issue comes from the following analyses from Russell:
Police do not need a warrant for searches if they have valid consent. The State has the burden to show that the consent was voluntarily given. Whether consent is freely given is a question of fact dependent upon the totality of the circumstances. A court considers several factors, including
- whether Miranda warnings had been given prior to obtaining consent;
- the degree of education and intelligence of the consenting person; and
- whether the consenting person had been advised of his right not to consent.
The State has not met its burden to prove that Russell voluntarily consented to the search. In fact, the record does not show that Russell consented at all.
In the Mecham case, the person refused to provide consent, was not informed of the 3 criteria, and yet that refusal to allow a roadside search of him is now admissible. Yet, it should not be.
Only time will tell but the Russell case is perfect example of why the levels of court are important, and just how future decisions can be shaped. This is also a decision that is in keeping with the Riley case from the United States Supreme Court where it held that a warrantless cell phone search was unlawful. Both of these cases comes down to privacy - The right to be let alone and free of governmental intrusion in the form of law enforcement. The pendulum has swung back to the position where individual privacies are paramount and their protection requires a recognition of their connection to the 4th Amendment.