Washington State Supreme Court Still Focused On Citizen’s Privacy.

Washington State Supreme Court Still Focused On Citizen’s Privacy.

Although July 4th is a nationally recognized holiday celebrating the freedom and civil liberties of those within the land, July 1, 2010, the State Supreme court celebrated early.  In the recently issued case of, State v. Afana, the State Supreme Court followed the US Supreme Court reasoning in Gant (police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search) and then added another...


Although July 4th is a nationally recognized holiday celebrating the freedom and civil liberties of those within the land, July 1, 2010, the State Supreme court celebrated early.  In the recently issued case of, State v. Afana, the State Supreme Court followed the US Supreme Court reasoning in Gant (police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search) and then added another layer of protection to driver’s in the state of Washington.  This protection is state-wide.  While this was a non-DUI case, it has important ramifications to those seized and arrested for a Washington DUI because a search of the vehicle when the person is in the back of a police cruiser can lead to the discovery of other items.

These items may be as trivial as a “switchblade” knife, a small amount of marijuana residue in a “smoking device,” or as serious as a firearm that the person has no license for.  Regardless of what our belief systems about these items are, the law is now settled:  A discovery of items post-arrest when the person is handcuffed and locked away in the police cruiser is unlawful. Rather than find an excuse to ignore precedent, the Court clearly recognized the dangers associated with ignoring the historical protection given to citizens as evidenced by the following:

“In effect, the State asks us to make an exception to the exclusionary rule for illegally obtained evidence by analogy to cases in which the evidence was obtained legally. This we will not do. We reject the State’s argument that the “good faith” exception…and hold that it is incompatible with the nearly categorical exclusionary rule under article I, section 7.  Article I, section 7 of our state constitution “clearly recognizes an individual’s right to privacy with no express limitations.” Unlike the Federal protection under the 4th amendment the court focused its attention to the more protective state Constitution, article I, section 7 emphasizes “protecting personal rights rather than on curbing governmental actions.” This understanding of that provision of our state constitution has led us to conclude that the “right of privacy shall not be diminished by the judicial gloss of a selectively applied exclusionary remedy.” Thus, while our state’s exclusionary rule also aims to deter unlawful police action, its paramount concern is protecting an individual’s right of privacy. Therefore, if a police officer has disturbed a person’s “private affairs,” we do not ask whether the officer’s belief that this disturbance was justified was objectively reasonable, but simply whether the officer had the requisite “authority of law.” If not, any evidence seized unlawfully will be suppressed. With very few exceptions, whenever the right of privacy is violated, the remedy follows automatically.”

What this means is that the legality of the seizure or arrest is not the issue, rather the issue is whether the officer had the authority to search the vehicle after arrest once the person is safely removed and handcuffed in the rear of a police vehicle.  All too often, officers engage in a fishing expedition of the arrested person’s vehicle in hopes of finding incriminating evidence so that additional charges can be stacked on top of the primary offense of DUI.  In almost every arrest, where the person was previously in a vehicle, police officers open personal items simply because it is subsequent to an arrest.  They often have no indications that they may find additional items, yet searched simply because they could. Such searches are no longer lawful.  Driver’s and citizens alike no longer have to be embarrassed, or forced to plead guilty to charges that would otherwise be reduced because of something else found in their vehicle.  Sometimes the items are known to the driver, other times they are not.

Consider the driver who is arrested for DUI and his/her passenger has marijuana on them and once stopped sees fit to stash it in the console, under the seat, or in the glove compartment.  Or consider a scenario where the newly graduated High Schooler who is the designated driver giving his under-age friends who have been drinking a safe way home.  The friends have bottles of alcohol with them and hide them in the car when the officer is not looking.  One thing inevitably leads to another and the traditional scenario plays out where the driver now faces new or additional charges because the car was searched-his/her privacy was violated.  It may seem like this is a farfetched defense lawyer hypothetical, but in reality, the hypothetical is ALWAYS inspired by real life and true scenarios that are often times much worse.

As a result of this ruling, the person facing a Washington DUI, will most likely never again see additional charges of Possession of a marijuana pipe, or possession of a “springblade” knife, possession of a marijuana less than 40 grams.  This is important because the defense can be focused on the primary charge: DUI.

Since a Washington DUI is a very serious offense, and an accused driver needs a dedicated and knowledgeable DUI lawyer to be focused and challenge the allegations that use aging and obsolete breath testing devices, or improperly administered sobriety tests that are nothing more than exercises equivalent to patting the head and rubbing the tummy couched in scientific language.  Such are the tools used by the State agents to ferret out and attempt to prove DUI beyond a reasonable doubt.

As a result, never having to deal with other unlawfully obtained evidence pursuant an unlawful search that places a driver in a poor light, means that a person will remain to be truly “presumed innocent,” unless/until the charges are proven beyond a reasonable doubt, and those charged with the honorable and monumental task of providing a defense will have a more level playing field.