Easier police searches? Not here
July 3, 2008 · Updated 12:15 PM
"Even though the United States Supreme Court says they can, Island County and any other Washington law enforcement officers still cannot search passengers in automobiles during traffic stops except in the rarest of circumstances. Last month, a 6-3 decision by the high court reinterpreted national search and seizure law and gave law enforcement the authority to search not only drivers who commit traffic violations and appear to be violating other laws, but their passengers as well. That is, except in Washington state. While the Supreme Courts decision applies directly to a Wyoming case in which an officer found drug paraphernalia in the purse of a passenger in a car, it probably will not override the Washington State Constitution in similar cases in this state. Washington has some of the strongest privacy protection statutes in the nation, especially when it comes to traffic stops. Freeland defense attorney Terry Smith said the court did more than it had to in this case. The decision may cause some confusion in Washington courts for a while, but he believes state citizens will be well protected against illegal searches. They didnt have to go as far as they did, said Smith. The officer had enough evidence to search the whole car (under existing law). Smith points to Article 1, Section 7 of the state Constitution, which places no express limitations on a persons right to privacy. That snippet of the law protects the passengers in a car from being searched under most circumstances, said Terry, and it is supported by recent case law. But, he said passengers who believe the driver of the car they are riding in is going to be arrested for a crime beyond a traffic violation can and should do two things to protect themselves from illegal searches. Get out of the car with your purse (or other personal belongings). Then walk away if you are not being arrested, said Smith. Island County Sheriff Mike Hawley said he does not expect to be able to take advantage of the courts interpretation of search and seizure law because of the states constitutional protection. But, in most cases, he said his deputies and detectives dont need to. Most drivers or passengers in cars who are using drugs or alcohol do not have the forethought to hide the evidence of their illegal activities, making searches easy and legal for law enforcement. Most of our busts happen because something is in plain view anyway. Drug paraphernalia is usually just sitting there in the open, said Hawley. The same goes for firearms. Traffic stops turn up dozens of guns every year and, fortunately for the officers, they are usually on the seat or the floorboards. Every third or fourth stop, theres going to be a gun, said Hawley. Island County Prosecuting Attorney Greg Banks said he believes law enforcement agencies would embrace the new federal interpretation if they could, if only to protect their officers from guns. His office is currently working against an appeal filed by an Island County woman who was searched while she was a passenger in a car. The woman and her husband were stopped by a Washington State Patrol officer for a traffic violation in March 1997. The man driving the car left the highway when signaled by the trooper and stopped his car on a dark side road. The trooper, concerned for his own safety, searched the wifes purse and found a loaded revolver. The trooper arrested both husband and wife, and the woman was later convicted on a weapons charge in Island County Superior Court. In that case, Banks said the conviction of the wife on the weapons charge could be overturned if the appellate court finds that her privacy was violated by the search. Although officers have the right to control a scene to ensure their personal safety, they must under the state constitution respect the personal privacy rights of an automobile passenger. Unfortunately, this can place an officers life in peril, he said. This is exactly the kind of case the Supreme Court is talking about, said Banks. "