Fourth Amendment analysis in Washington

2019Lee's concession is consistent with our Supreme Court's recognition in State v. Z.U.E. that "[i]n a challenge to the validity of a Terry stop, article I, section 7 generally tracks the Fourth Amendment analysis."27 The standards for a Terry stop, including the appropriate scope of such a stop, are well established in Washington.28 We analyze such stops on a case-by- case basis.29 "[C]ourts must review an officer's actions under the totality of the circumstances to determine if a [Tern/ stop] seizure is made with the authority of law and is of reasonable scope and duration."3° "Similar to the a

2019Lee's concession is consistent with our Supreme Court's recognition in State v. Z.U.E. that "[i]n a challenge to the validity of a Terry stop, article I, section 7 generally tracks the Fourth Amendment analysis."27 The standards for a Terry stop, including the appropriate scope of such a stop, are well established in Washington.28 We analyze such stops on a case-by- case basis.29 "[C]ourts must review an officer's actions under the totality of the circumstances to determine if a [Tern/ stop] seizure is made with the authority of law and is of reasonable scope and duration."3° "Similar to the a

2009Gant, 129 S. Ct. at 1723-24 . 3 ¶12 At the trial court, Gant moved to suppress evidence seized by police during their warrantless search of his car and, thus, the Supreme Court did not address whether it would review his Fourth Amendment claim absent such a motion.

2009Gant, 129 S.Ct. at 1723-24 . [3] ¶ 12 At the trial court, Gant moved to suppress evidence seized by police during their warrantless search of his car and, thus, the Supreme Court did not address whether it would review his Fourth Amendment claim absent such a motion.

2005FAIRHURST, J. (concurring). ¶ 23 Like the majority, I would find the search invalid, but I use our established Fourth Amendment analysis to determine that Pam Dangel did not have authority to consent to the search of Robert Morse's apartment. ¶ 24 We have expressly adopted the federal analysis under the Fourth Amendment for consent to search questions. [1] State v. Mathe, 102 Wash.2d 537, 543 , 688 P.2d 859 (1984) (citing United States v. Matlock, 415 U.S. 164, 170-71 , 94 S.Ct. 988 , 39 L.Ed.2d 242 (1974)).

2005FAIRHURST, J. (concurring). ¶ 23 Like the majority, I would find the search invalid, but I use our established Fourth Amendment analysis to determine that Pam Dangel did not have authority to consent to the search of Robert Morse's apartment. ¶ 24 We have expressly adopted the federal analysis under the Fourth Amendment for consent to search questions. [1] State v. Mathe, 102 Wash.2d 537, 543 , 688 P.2d 859 (1984) (citing United States v. Matlock, 415 U.S. 164, 170-71 , 94 S.Ct. 988 , 39 L.Ed.2d 242 (1974)).

2017“The only relevant question is whether article I, section 7 affords enhanced protection in the particular context.”3 Id. 3 State v. Gunwall, 106 Wn.2d 54 , 720 P.2d 808 (1986). 7 No. 48540-1-II Our Supreme Court has previously declined to engage in a Fourth Amendment analysis when article I, section 7 is found to protect the asserted privacy interest.

2017“The only relevant question is whether article I, section 7 affords enhanced protection in the particular context.”3 Id. 3 State v. Gunwall, 106 Wn.2d 54 , 720 P.2d 808 (1986). 7 No. 48540-1-II Our Supreme Court has previously declined to engage in a Fourth Amendment analysis when article I, section 7 is found to protect the asserted privacy interest.

2007United States v. White, 401 U.S. 745, 751 , 91 S.Ct. 1122, 1126 , 28 L.Ed.2d 453 (1971). "[A] defendant who has no constitutional right to exclude the informer's unaided testimony" has no "Fourth Amendment privilege against a more accurate version of the events in question." White, 401 U.S. at 753 , 91 S.Ct. at 1127 .

2007United States v. White, 401 U.S. 745, 751 , 91 S.Ct. 1122, 1126 , 28 L.Ed.2d 453 (1971). "[A] defendant who has no constitutional right to exclude the informer's unaided testimony" has no "Fourth Amendment privilege against a more accurate version of the events in question." White, 401 U.S. at 753 , 91 S.Ct. at 1127 .

2009The lead opinion recognized that this rule as to the scope of a permissible search was based on heightened privacy concerns under article I, section 7 and was more protective than the Fourth Amendment rule articulated in New York v. Belton, 453 U.S. 454 , 101 S. Ct. 2860 , 69 L.

2009The lead opinion recognized that this rule as to the scope of a permissible search was based on heightened privacy concerns under article I, section 7 and was more protective than the Fourth Amendment rule articulated in New York v. Belton, 453 U.S. 454 , 101 S. Ct. 2860 , 69 L.

2005FAIRHURST, J. (concurring). ¶ 23 Like the majority, I would find the search invalid, but I use our established Fourth Amendment analysis to determine that Pam Dangel did not have authority to consent to the search of Robert Morse's apartment. ¶ 24 We have expressly adopted the federal analysis under the Fourth Amendment for consent to search questions. [1] State v. Mathe, 102 Wash.2d 537, 543 , 688 P.2d 859 (1984) (citing United States v. Matlock, 415 U.S. 164, 170-71 , 94 S.Ct. 988 , 39 L.Ed.2d 242 (1974)).

2005FAIRHURST, J. (concurring). ¶ 23 Like the majority, I would find the search invalid, but I use our established Fourth Amendment analysis to determine that Pam Dangel did not have authority to consent to the search of Robert Morse's apartment. ¶ 24 We have expressly adopted the federal analysis under the Fourth Amendment for consent to search questions. [1] State v. Mathe, 102 Wash.2d 537, 543 , 688 P.2d 859 (1984) (citing United States v. Matlock, 415 U.S. 164, 170-71 , 94 S.Ct. 988 , 39 L.Ed.2d 242 (1974)).

2017In Franks, the Supreme Court held that the Fourth Amendment requires a hearing be held at the defendant's request where the "defendant makes a substantial preliminary showing that a false statement[or omission] knowingly and intentionally, or with reckless disregard for the truth, was included in a warrant affidavit," and the "allegedly false statement is necessary to the finding of probable cause." Franks, 438 U.S. at 156 ; United States v. Carneiro, 861 F.2d 1171, 1176 (9th Cir. 1988).

2005State v. Vickers, 148 Wn.2d 91, 114 , 59 P.3d 58 (2002) (footnote omitted) (second alteration in original) (quoting State v. Garrison, 118 Wn.2d 870, 872 , 827 P.2d 1388 (1992) (quoting Franks v. Delaware, 438 U.S. 154, 171 , 98 S. Ct. 2674 , 57 L.

2003The majority readily concedes (and rightfully so), “ ‘Article I, section 7 provides greater protection of a person’s right to privacy than the Fourth Amendment,’ ” majority at 642 (quoting State v. O’Neill, 148 Wn.2d 564, 584 , 62 P.3d 489 (2003)); accord State v. Jackson, 150 Wn.2d 251, 259 , 76 P.3d 217 (2003) (“It is now settled that article I, section 7 is more protective than the Fourth Amendment.”), meaning the Simpson majority necessarily concluded Simpson’s state constitutional rights were violated since the Fourth Amendment violation was expressly found.

2003The majority readily concedes (and rightfully so), “ ‘Article I, section 7 provides greater protection of a person’s right to privacy than the Fourth Amendment,’ ” majority at 642 (quoting State v. O’Neill, 148 Wn.2d 564, 584 , 62 P.3d 489 (2003)); accord State v. Jackson, 150 Wn.2d 251, 259 , 76 P.3d 217 (2003) (“It is now settled that article I, section 7 is more protective than the Fourth Amendment.”), meaning the Simpson majority necessarily concluded Simpson’s state constitutional rights were violated since the Fourth Amendment violation was expressly found.

2003The majority readily concedes (and rightfully so), “ ‘Article I, section 7 provides greater protection of a person’s right to privacy than the Fourth Amendment,’ ” majority at 642 (quoting State v. O’Neill, 148 Wn.2d 564, 584 , 62 P.3d 489 (2003)); accord State v. Jackson, 150 Wn.2d 251, 259 , 76 P.3d 217 (2003) (“It is now settled that article I, section 7 is more protective than the Fourth Amendment.”), meaning the Simpson majority necessarily concluded Simpson’s state constitutional rights were violated since the Fourth Amendment violation was expressly found.

2003The majority readily concedes (and rightfully so), “ ‘Article I, section 7 provides greater protection of a person’s right to privacy than the Fourth Amendment,’ ” majority at 642 (quoting State v. O’Neill, 148 Wn.2d 564, 584 , 62 P.3d 489 (2003)); accord State v. Jackson, 150 Wn.2d 251, 259 , 76 P.3d 217 (2003) (“It is now settled that article I, section 7 is more protective than the Fourth Amendment.”), meaning the Simpson majority necessarily concluded Simpson’s state constitutional rights were violated since the Fourth Amendment violation was expressly found.

2014We do not reach the Fourth Amendment inquiry as we resolve this case under our state constitution, which “ ‘ clearly recognizes an individual’s right to privacy with no express limitations’.” State v. Young, 123 Wn.2d 173, 180 , 867 P.2d 593 (1994) (quoting State v. Simpson, 95 Wn.2d 170, 178 , 622 P.2d 1199 (1980)). ¶8 When presented with arguments under both the state and federal constitutions, we start with the state constitution.

2014We do not reach the Fourth Amendment inquiry as we resolve this case under our state constitution, which “ ‘ clearly recognizes an individual’s right to privacy with no express limitations’.” State v. Young, 123 Wn.2d 173, 180 , 867 P.2d 593 (1994) (quoting State v. Simpson, 95 Wn.2d 170, 178 , 622 P.2d 1199 (1980)). ¶8 When presented with arguments under both the state and federal constitutions, we start with the state constitution.

2011Rather, to ensure that police had not exploited the Fourth Amendment violation, the Court reaffirmed the attenuation analysis of Wong Sun v. United States, 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963): "In order for the causal chain, between the illegal arrest and the statements made subsequent thereto, to be broken, Wong Sun requires not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be `sufficiently an act of free will to purge the primary taint.'" Brown, 422 U.S. at 602 , 95 S.Ct. 2254 (quoting Wong Sun, 371 U.S. at 486 , 83 S.Ct. 407 ). ¶ 15

2011Rather, to ensure that police had not exploited the Fourth Amendment violation, the Court reaffirmed the attenuation analysis of Wong Sun v. United States, 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963): "In order for the causal chain, between the illegal arrest and the statements made subsequent thereto, to be broken, Wong Sun requires not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be `sufficiently an act of free will to purge the primary taint.'" Brown, 422 U.S. at 602 , 95 S.Ct. 2254 (quoting Wong Sun, 371 U.S. at 486 , 83 S.Ct. 407 ). ¶ 15

2009In so ruling, the Rountree court followed Stone v. Powell, 428 U.S. 465 , 96 S. Ct. 3037 , 49 L.

2009In so ruling, the Rountree court followed Stone v. Powell, 428 U.S. 465 , 96 S. Ct. 3037 , 49 L.

2001"Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." Id.

2001“Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Id.

1987Oliver v. United States, 466 U.S. 170, 188 , 80 L.Ed.2d 214 , 104 S.Ct. 1735 (1984); Smith v. Maryland, 442 U.S. 735, 740 , 61 L.Ed.2d 220 , 99 S.Ct. 2577 (1979). [3] Because Const. art. 1, § 7 focuses on privacy interests, rather than police conduct, this factor is not as important as if under a Fourth Amendment analysis.

1987Oliver v. United States, 466 U.S. 170, 188 , 80 L.Ed.2d 214 , 104 S.Ct. 1735 (1984); Smith v. Maryland, 442 U.S. 735, 740 , 61 L.Ed.2d 220 , 99 S.Ct. 2577 (1979). [3] Because Const. art. 1, § 7 focuses on privacy interests, rather than police conduct, this factor is not as important as if under a Fourth Amendment analysis.

2019App. 2d 154, 160, 425 P.3d 920 (2018) (quoting State v. Williams, 102 Wn.2d 733, 740 , 689 P.2d 1065 (1984)). 32 State v. Acrev, 148 Wn.2d 738, 747 , 64 P.3d 594 (2003). 8 No. 77038-1-1/9 end.33 An officer may lawfully extend the stop's scope and duration based on information obtained by officers during the traffic stop.34 "There is no rigid time limitation on Terry stops."35 Washington courts also recognize that officers may conduct routine law enforcement procedures during traffic stops "as long as they do not unreasonably extend the initial valid stop."36 For example, officers may request a

2019App. 2d 154, 160, 425 P.3d 920 (2018) (quoting State v. Williams, 102 Wn.2d 733, 740 , 689 P.2d 1065 (1984)). 32 State v. Acrev, 148 Wn.2d 738, 747 , 64 P.3d 594 (2003). 8 No. 77038-1-1/9 end.33 An officer may lawfully extend the stop's scope and duration based on information obtained by officers during the traffic stop.34 "There is no rigid time limitation on Terry stops."35 Washington courts also recognize that officers may conduct routine law enforcement procedures during traffic stops "as long as they do not unreasonably extend the initial valid stop."36 For example, officers may request a

2017“The only relevant question is whether article I, section 7 affords enhanced protection in the particular context.”3 Id. 3 State v. Gunwall, 106 Wn.2d 54 , 720 P.2d 808 (1986). 7 No. 48540-1-II Our Supreme Court has previously declined to engage in a Fourth Amendment analysis when article I, section 7 is found to protect the asserted privacy interest.

2017“The only relevant question is whether article I, section 7 affords enhanced protection in the particular context.”3 Id. 3 State v. Gunwall, 106 Wn.2d 54 , 720 P.2d 808 (1986). 7 No. 48540-1-II Our Supreme Court has previously declined to engage in a Fourth Amendment analysis when article I, section 7 is found to protect the asserted privacy interest.