725098MAJ

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Supreme Court of the State of Washington

Opinion Information Sheet

Docket Number: 72509-8
Title of Case: State of Washington V. James Bruce Rankin
V State of Washington V. Kevin D. Staab
File Date: 06/10/2004
Oral Argument Date: 01/23/2003


SOURCE OF APPEAL
----------------
Appeal from Superior Court,
County


JUSTICES
--------
Authored by Gerry L Alexander
Concurring: Charles W. Johnson
Richard B. Sanders
Susan Owens
Tom Chambers
Mary Fairhurst
Dissenting: Faith Ireland
Barbara A. Madsen
Bobbe J Bridge


COUNSEL OF RECORD
-----------------
Counsel for Petitioner(s)
Sharon J. Blackford
Washington Appellate Project

Eric J. Nielsen
Nielsen, Broman & Koch P.L.L.C.


Counsel for Respondent(s)
Daniel Jason Clark
King County Prosecuting Attorney
W554 King County Courthouse
516 3rd Ave Ste W554
Seattle, WA 98104-2362

Prosecuting Atty King County
King County Prosecutor/appellate Unit
1850 Key Tower
700 Fifth Avenue
Seattle, WA 98104

Amicus Curiae on behalf of Washington Association Of Criminal D
Tom P Conom
Attorney at Law
Edmonds Bay Bldg
51 W Dayton St
Edmonds, WA 98020-4111


IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
) No. 72509-8
Respondent, )
)
v. ) En Banc
)
JAMES BRUCE RANKIN, )
)
Petitioner. )
)
STATE OF WASHINGTON, )
)
Respondent, )
)
v. )
)
KEVIN D. STAAB, )
)
Petitioner. )
) Filed June 10, 2004

ALEXANDER, C.J.--The principal issue we are asked to resolve in this
consolidated case is this: whether a police officer violates article I,
section 7 of the Washington Constitution when the officer requests
identification from a passenger in a lawfully stopped vehicle but lacks an
articulable suspicion that the passenger has engaged in criminal activity.
The Court of Appeals concluded that although an officer in such a
circumstance cannot demand identification from a passenger, an officer does
not violate the state constitution by merely requesting that the passenger
produce identification. We disagree with the Court of Appeals, concluding
that the aforementioned constitutional provision affords automobile
passengers a right of privacy that is violated when an officer requests
identification from a passenger for investigative purposes, absent an
independent basis for making the request. The Court of Appeals must,
therefore, be reversed in both cases before us.
I.
State v. Rankin
On September 17, 1999, a vehicle driven by Karena Gunn was stopped by a
Snohomish County sheriff's deputy. The deputy did so because he observed
Gunn's vehicle 'roll over a marked stop line,' a noncriminal traffic
offense. Rankin's Clerk's Papers at 5. James Rankin was a passenger in
Gunn's vehicle. Although the deputy did not observe Rankin engaged in any
criminal activity on this occasion, he recalled that he had arrested Rankin
approximately a month earlier for possession of a stolen vehicle and
possession of controlled substances.
The deputy requested Gunn's driver's license, and then asked Rankin if
he had any identification on his person. Rankin and Gunn each responded by
providing the deputy with identification cards. The deputy used the
personal information from the cards to run a check to see if there were
warrants outstanding for either of the individuals. He learned that there
were no warrants for Gunn but that there was an outstanding warrant for
Rankin's arrest for allegedly violating a no-contact order. Consequently,
he placed Rankin under arrest. During a search incident to the arrest, the
deputy discovered a knife and about one ounce of methamphetamine on Rankin.
Rankin was charged in Snohomish County Superior Court with possession of a
controlled substance. Rankin then moved to suppress the evidence that was
seized from him at the time of his arrest. The trial court granted the
motion and suppressed the evidence, concluding that the encounter was a
seizure. It then dismissed the case, concluding that the State possessed
insufficient evidence to maintain the charges against Rankin.
State v. Staab
On March 3, 1999, an officer from the Tukwila Police Department stopped a
vehicle for the traffic offense of not having a license plate light. The
officer asked the driver and his passenger, Kevin Staab, to produce their
driver's licenses. Staab testified that the officer 'was not politely
asking when he wanted to see my driver's license,' an assertion that the
officer did not deny. Staab Report of Proceedings at 41. When Staab
reached into his shirt pocket for his identification card, a clear plastic
bag containing a white chalky substance fell out. Staab then put the bag
back in his pocket and told the officer his name. After determining that
there were no outstanding warrants for Staab, the officer arrested Staab
based on his belief that the plastic bag contained cocaine. Staab admitted
to the officer that the bag contained approximately three grams of cocaine.
Staab was thereafter charged in King County Superior Court with a violation
of the Uniform Controlled Substances Act, chapter 69.50 RCW. At a
subsequent hearing on the admissibility of the cocaine, the trial court
determined that an officer may ask a passenger for identification even if
the officer lacks a reasonable suspicion that the passenger is engaged in
criminal activity. Consequently, it denied Staab's motion to suppress the
cocaine. Staab was later found guilty of the charge.
At the Court of Appeals
Staab appealed his conviction to Division One of the Court of Appeals.
The State appealed the order suppressing evidence in Rankin's case to that
same court. The Court of Appeals consolidated the appeals and held that
while an officer may not require a passenger to provide identification,
unless there are independent grounds to question the passenger, the officer
may request identification. State v. Rankin, 108 Wn. App. 948, 951, 954,
33 P.3d 1090 (2001), review granted, 147 Wn.2d 1014, 56 P.3d 991 (2002).
It, therefore, affirmed Staab's conviction and reversed the trial court's
suppression of evidence in Rankin's case, remanding the latter case for
trial.
II.
Rankin and Staab both contend that the officers' requests for
identification violated article I, section 7 of the Washington
Constitution. The determination of whether undisputed facts constitute a
violation of that provision of the Washington Constitution is a question of
law, which is reviewed de novo. State v. Thorn, 129 Wn.2d 347, 351, 917
P.2d 108 (1996), overruled on other grounds by State v. O'Neill, 148 Wn.2d
564, 62 P.3d 489 (2003). Here, the determinative facts of this case are
not in dispute. Our review, therefore, is de novo.
'It is well settled that article I, section 7 of the Washington
Constitution provides greater protection to individual privacy rights than
the Fourth Amendment to the United States Constitution.' State v. Jones,
146 Wn.2d 328, 332, 45 P.3d 1062 (2002). Therefore, we need not engage in
an analysis under State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).
State v. White, 135 Wn.2d 761, 769, 958 P.2d 982 (1998).
The Washington Constitution provides that '{n}o person shall be disturbed
in his private affairs, or his home invaded, without authority of law.'
Const. art. I, sec. 7. This provision protects '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). Indeed, a warrantless search or
seizure is considered per se unconstitutional unless it falls within one of
the few exceptions to the warrant requirement. State v. Ladson, 138 Wn.2d
343, 349, 979 P.2d 833 (1999). When analyzing police-citizen interactions,
we must first determine whether a warrantless search or seizure has taken
place, and if it has, whether the action was justified by an exception to
the warrant requirement. O'Neill, 148 Wn.2d at 574. Here, the State does
not contend that the encounters were justified by any exception to the
warrant requirement. The State argues only that no seizure occurred.
'{N}ot every encounter between a police officer and a citizen is an
intrusion requiring an objective justification.' United States v.
Mendenhall, 446 U.S. 544, 553, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980).
However, a seizure occurs, under article I, section 7, when considering all
the circumstances, an individual's freedom of movement is restrained and
the individual would not believe he or she is free to leave or decline a
request due to an officer's use of force or display of authority. O'Neill,
148 Wn.2d at 574. This determination is made by objectively looking at the
actions of the law enforcement officer. State v. Young, 135 Wn.2d 498,
501, 957 P.2d 681 (1998). Moreover, it is elementary that all
investigatory detentions constitute a seizure. State v. Armenta, 134 Wn.2d
1, 10, 948 P.2d 1280 (1997).
An automobile passenger is not seized when a police officer merely stops
the vehicle in which the passenger is riding. State v. Mendez, 137 Wn.2d
208, 222, 970 P.2d 722 (1999). Under article I, section 7, however,
passengers are unconstitutionally detained when an officer requests
identification 'unless other circumstances give the police independent
cause to question {the} passengers.' State v. Larson, 93 Wn.2d 638, 642,
611 P.2d 771 (1980). In Larson, officers observed several individuals
sitting in an illegally parked automobile. As the officers drove up to the
parked automobile, the driver of the automobile began to drive it away.
The officers then activated their emergency lights and stopped the
automobile. Upon confronting the driver and his passengers, the officers
'asked' for their identification. Id. at 640. When one of the passengers
attempted to comply with the request by opening her purse to locate her
identification, an officer observed a plastic bag of marijuana in the
purse. After the passenger was arrested for possession of a controlled
substance, she moved to suppress the evidence that was obtained as a result
of 'the request for identification.' Id.
The trial court ordered suppression, reasoning that the police officers did
not have any legal justification for 'requesting' identification from the
passenger. State v. Larson, 21 Wn. App. 506, 507, 587 P.2d 171 (1978).
The Court of Appeals reversed the trial court's decision, determining that
'the police may ask for identification from passengers as well as the
driver.' Id. at 509 (emphasis added). This court reversed the Court of
Appeals, concluding
that the police officer who detained the petitioner for the purpose of
requiring her to identify herself did so in violation of the fourth
amendment to the United States Constitution and Const. art. 1, sec. 7,
because none of the circumstances preceding the officer's detention of
petitioner justified a reasonable suspicion that she was involved in
criminal conduct.

Larson, 93 Wn.2d at 645. Although in Larson we referred to the officer's
interaction as a 'demand' in some sections of the opinion, the decision
must be read in light of the facts of that case, which were that the
officer merely 'asked' the passenger for the identification.1 Id. at 640-
41. Moreover, we determined that the officer's request for identification
amounted to a 'detention' of the passenger for investigative purposes. Id.
at 645. As noted above, all investigative detentions2 constitute seizures.
Armenta, 134 Wn.2d at 10.
The dissent3 relies heavily on Young where we held that asking for
identification from a pedestrian does not constitute a seizure. Young, 135
Wn.2d at 511. Significantly, Young did not overrule or even mention our
decision in Larson. We think there are good reasons for making a
distinction between pedestrians and passengers. As we have said, ''many
{individuals} find a greater sense of security and privacy in traveling in
an automobile than they do in exposing themselves by pedestrian or other
modes of travel.'' City of Seattle v. Mesiani, 110 Wn.2d 454, 457, 755
P.2d 775 (1988) (quoting Delaware v. Prouse, 440 U.S. 648, 662, 99 S. Ct.
1391, 59 L. Ed. 2d 660 (1979)). Indeed, a passenger faced with undesirable
questioning by the police does not have the realistic alternative of
leaving the scene as does a pedestrian. As the noted commentator Professor
LaFave observed, the passenger is forced to abandon his or her chosen mode
of transportation and, instead, walk away into a frequently foreign
location thereby risking the departure of his or her ride while away. See
Wayne R. LaFave, The Present and Future Fourth Amendment, 1995 U. Ill. L.
Rev. 111, 114-15. Despite the dissent's suggestions to the contrary,
Larson is consistent with Young.
Washington is not alone in holding that a mere request for
identification from a passenger for investigatory purposes constitutes a
seizure unless there is a reasonable basis for the inquiry. In
Commonwealth v. Alvarez, 44 Mass. App. Ct. 531, 692 N.E.2d 106 (1998), the
Massachusetts Court of Appeals held that an unlawful seizure occurs when a
law enforcement officer interrogates 'passengers in {a} car unless the {law
enforcement officer} has a 'reasonable suspicion, grounded in specific,
articulable facts,' that a particular passenger in the car is involved in
criminal activity or 'engaged in other suspicious conduct.'' Alvarez, 692
N.E.2d at 108 (quoting Commonwealth v. Torres, 424 Mass. 153, 158, 674
N.E.2d 638 (1997)). The court reasoned there that 'a random request for
identification papers constitutes--the sort of request uncomfortably
associated with authoritarian societies and most commonly made of persons
belonging to a racial or ethnic minority.' Id. at 109; see also State v.
Johnson, 645 N.W.2d 505, 510 (Minn. Ct. App. 2002) (holding 'a reasonable
person would feel that he was neither free to disregard the police
questions nor free to terminate the encounter' when a police officer
requests identification from a passenger); Hornberger v. Am. Broad. Cos.,
351 N.J. Super. 577, 613, 799 A.2d 566 (2002) (determining a passenger does
not feel free to refuse an officer's request for identification); State v.
Affsprung, 87 P.3d 1088, 1093 (N.M. Ct. App. 2004) (concluding 'we do not
believe that a reasonable passenger would feel free to leave the area and
refuse the officer's request for identification'), cert. denied, 88 P.3d
262 (N.M. 2004).
Not all jurisdictions are in agreement on this issue. The Supreme
Court of Colorado, for instance, has determined that there is no seizure
under the Fourth Amendment when an officer requests identification from an
automobile passenger. See People v. Paynter, 955 P.2d 68, 75 (Colo. 1998).
However, as noted above, the Washington Constitution affords individuals
more protection than the Fourth Amendment, and we must always remain
vigilant in guarding these civil rights and refrain from hastily discarding
them. Jones, 146 Wn.2d at 332.
{W}hile the Fourth Amendment operates on a downward ratcheting mechanism of
diminishing expectations of privacy, article I, section 7, holds the line
by pegging the constitutional standard to 'those privacy interests which
citizens of this state have held, and should be entitled to hold, safe from
governmental trespass absent a warrant.'

Ladson, 138 Wn.2d at 349 (quoting Myrick, 102 Wn.2d at 511). In our view,
there is no reason to abandon a right that passengers have enjoyed in this
state since at least 1980 when such requests for identification from
passengers were deemed by this court to be in violation of article I,
section 7 of our state constitution. In the absence of a compelling
justification for stripping this right from the people, our constitutional
jurisprudence requires us to uphold this right. Id. Therefore, we
conclude that under article I, section 7, law enforcement officers are not
permitted to request identification from a passenger for investigatory
purposes unless there is an independent basis to support the request.4
In each of the cases before us, a police officer asked a passenger for
identification for the sole purpose of conducting a criminal investigation,
notwithstanding the fact that the officer lacked any articulable suspicion
of criminal activity. Applying Larson, we conclude that both individuals
were seized as a matter of law when the officers made the request or demand
for identification. Because both individuals were seized without the
benefit of a warrant and the State does not contend that the seizures were
justified by any exception to the warrant requirement,5 the evidence
obtained as a result of the seizures must be suppressed.
III.
In conclusion, we hold that the freedom from disturbance in 'private
affairs' afforded to passengers in Washington by article I, section 7
prohibits law enforcement officers from requesting identification from
passengers for investigative purposes unless there is an independent reason
that justifies the request. This is not to imply that officers may not
engage passengers in conversation. They may do this. However, once the
interaction develops into an investigation, it runs afoul of our state
constitution unless there is justification for the intrusion into the
passenger's private affairs. Because the Court of Appeals concluded
otherwise, we reverse its decision to overturn the suppression of the
evidence seized from Rankin as well as its affirmance of Staab's
conviction.

WE CONCUR:

1Even the dissenters in Larson read the majority opinion as prohibiting
officers from requesting identification without an independent reason.
Larson, 93 Wn.2d at 654 (Horowitz, J., dissenting). The dissenters stated:
'Petitioner contends that even if the officers had sufficient grounds to
stop the car and ask the driver for his identification, they had no grounds
to ask {the defendant-passenger} for her identification. The majority
agrees with this contention. I cannot.' Id. (emphasis added).
2'Detention' is defined as '{t}he act or fact of holding a person in
custody; confinement or compulsory delay.' Black's Law Dictionary 459 (7th
ed. 1999).
3Dissent at 12.
4As we indicated, Larson was decided under the fourth amendment to the
United States Constitution as well as the state constitution. Larson, 93
Wn.2d at 645. Because article I, section 7 resolves this case, we need not
apply the Fourth Amendment.
5Under the particular facts before us, the requests for identification were
not reasonably related to officer safety. If there were issues of officer
safety, the result might have been different. See State v. Hudson, 124
Wn.2d 107, 112, 874 P.2d 160 (1994).
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