The Pre-textual Stop

Article 1, Section 7 of the Washington Constitution states that "[N]o person shall be disturbed in his private affairs, or his home invaded, without authority of law."

Because the language of this constitutional provision is different from the Fourth Amendment of the United State's Constitution, it is more protective of an individual's privacy interests.

A pre-textual stop occurs where a traffic stop is made, not to enforce the traffic code, but to conduct a criminal investigation. Normally the level of suspicion required to made a traffic stop is a reasonable and articulable suspicion that a traffic infraction occurred. Thus, it is relatively easy to conduct a traffic stop. The problem occurs where the police suspect another crime, but are using a traffic infraction as a reason to stop the person and conduct a criminal investigation.

In State v. Ladson, 138 Wn.2d 343, (1999), the Washington Supreme Court wrote that allowing pretext stops to continue would be a "triumph of form over substance." It would be a "triumph of expediency at the expense of reason." It ruled that pre-textual stops were illegal in Washington.

In a subsequent decision in 2012, State v. Arreola, 176 Wn.2d 284 (2012), the Washington Supreme Court re-addressed the issue of pre-text stops where an officer got a report of a DUI, located the vehicle suspected of DUI, followed it, noticed it had a muffler violation, and pulled it over for the muffler violation. The officer testified that he was primarily motivated in stopping the vehicle because of the DUI call but also that the muffler violation was an "actual reason for the stop." Well, that sure sounded like a pre-text. At least that is what the Court of Appeals thought.

Astoundingly, six Justices found that this was not a pre-textual stop, but was actually a "mixed-motive stop." One justice concurred in the result only. Two Justices dissented.

The most interesting part was that Arreola did not overrule Ladson. In fact, the Court expressly held that Ladson was still the law and the pre-textual stops were illegal. The Court devoted a significant potion of its decision to point out that the traffic code is extensive and complicated, and “virtually the entire driving population is in violation of some regulation as soon as they get in their cars, or shortly thereafter" citing Ladson and an article that Ladson quoted by Peter Shakow. The Arreola court also noted that "there are concerns that some officers will simply misrepresent their reasons and motives for conducting traffic stops" citing Samuel Walker's "Taming the System".

Despite all this, the Court held that if a legitimate reason for a traffic stop was secondary and the officer was primarily motivated by a hunch or illegitimate reason to conduct a stop, that the stop was now a "mixed-motive" stop and was justified.   

Only two Justices pointed out the obvious that the reasoning applied by the majority "is for all practical purposes indistinguishable from the reasoning [the] court rejected in Ladson."

Better financially for police to kill suspects rather than wound them?

Recently, a Kern County Sheriff was recorded as saying that it makes more sense financially to kill someone than to wound them. The recording can be viewed on Facebook.

While most police would not engage in a shoot first, ask questions later policy, there have been an alarming number of incidents where police have shot suspects. Many of these shootings are completely unnecessary.

A collection of shootings from 2015 can be viewed here (WARNING: these are graphic videos).

Many police forces began equipping their officers with non-lethal options such as tasers. However, no one seems to know if implementing these tools have reduced shootings. Training and emphasis still seems to be on the use of firearms. How many officers are spending their weekends at the taser range versus the gun range?

Keeping the number of shootings down is important not just from a life saving standpoint, but sometimes these shootings lead to riots. And it should be pretty obvious that riots are not good for the economy.

It is a questionable premise to think the society can police away crime. Generally, most people do not commit crimes because they want to. Many are addicts who are stealing to fuel their habits. Some were raised in households that engaged in domestic violence and are not mimicking what they see as adults. Some crimes occur in the heat of the moment (sometimes with alcohol involved). Some are homeless and some of their actions are criminalized. Many that get involved in the criminal justice system are mentally ill. The crimes that are actually carefully planned out are pretty few and far between.

These problems are better dealt with education, treatment, and a limited amount of assistance to get a roof over their head and food. Obviously, it is expensive and difficult to supple these resources to the many who need them. But providing these resources makes more sense financially and from a societal standpoint than killing someone, as they might if the Kern County Sheriff has any say in the matter.

What the Fourth Amendment Means to You

The Fourth Amendment to the United States Constitution is a part of the Bill of Rights. It reads:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

This is the right that controls your everyday interactions with the police. Getting pulled over for a ticket, the police knocking on your door to talk to your son, the police setting up a roadblock, or any government agent conducting any search and seizure of any person or object.

First, it is important to consider that the right is personal. This means that if the police search your neighbors house illegally and find incriminating evidence about you that you accidentally left there, you probably cannot challenge the search of your neighbors house in court. There are some exceptions to this rule, but this is just an example of how the right is personal. Generally, you can only challenge a search or seizure of your own person or property. This is called "standing" to challenge the search or seizure.

Another important thing to consider is that the courts will "suppress" any evidence that is obtained as a result of an illegal search or seizure that you have "standing" to challenge. Suppression means that the government cannot use the illegally obtained evidence, or even anything that resulted from the illegally obtained evidence. So, if the police pull your car over for no reason and then get a search warrant for your car and later find drugs in it, if the initial detention of your car is illegal, the finding of the drugs can be suppressed even though they got a warrant for the second search.

As the right states it prevents the government from conducting "unreasonable" searches or seizures. Reasonableness is decided by the courts, but the general standards of proof that the courts make these decisions on are "reasonable suspicion" and "probable cause."

A "reasonable suspicion" is a relatively low standard which means that the police must have more than a hunch, but a reasonable and articulable suspicion of criminal activity. Criminal activity can include activity infractions, like speeding or failing to signal. Reasonable suspicion will allow the police to make a brief detention to either confirm or deny their suspicions in order to establish "probable cause."

"Probable cause" exists where there is a reasonable belief that a person has committed a crime or that evidence of a crime will be found in the place sought to be searched. Probable cause for an arrest in Washington is usually up to the officer's discretion and does not require a warrant. Probable cause for a search typically does require a warrant; however, there are several large exceptions to this general warrant requirement.

The general exceptions to the warrant requirement are (1) search incident to arrest; (2) consent; (3) plain view; (4) Terry frisk; (5) community caretaking; (6) hot pursuit; (7) exigent circumstances. These exceptions will be discussed further in later blogs.

Also, if the police have not "detained" you in some way, then the Fourth Amendment does not kick in. Thus, if the police just come up to you and shine a flash light and tell you to answer some questions, you may not actually be "detained" within the meaning of the law and your Fourth Amendment rights are not in play. In this situation, you should ask the officer if you are being detained or are free to leave. If you are free to leave, you should just leave. See my other blog post on why talking to the police is usually not a good idea. 

If you are detained, ask to speak with a lawyer and exercise your right to remain silent. As soon as practicable, consult with that attorney regarding the charges.