State v. Rife , 133 Wash. 2d 140 ( 1997 )

Smith, J.

— Petitioner Travis Lee Rife seeks review of a decision of the Court of Appeals, Division I, which affirmed his conviction in the King County Superior Court for possession of heroin in violation of the Uniform Controlled Substances Act, RCW 69.50.401(d). We granted review. We reverse.

QUESTION PRESENTED

The question presented in this case is whether a pedestrian who has been stopped by a police officer for a routine traffic infraction ("jaywalking”) has been improperly seized when the police officer detains the pedestrian and conducts a warrant check and verification as a matter of course without reasonable suspicion the pedestrian has committed any other offense.¹

STATEMENT OF FACTS

On February 19, 1994 in Seattle at approximately 10:42 p.m. Officer Jason Chittenden of the Seattle Police Department observed Petitioner Travis Lee Rife, a pedestrian, alight from a public transit bus and cross Aurora Avenue near 85th Street² outside a crosswalk and against a traffic signal.³ The officer stopped Petitioner, informed him he was stopping him for jaywalking, obtained identification from him, and made a radio check for outstanding warrants. The officer did not present a notice of infraction to Petitioner for his signature. Nor was any notice even issued.

The officer testified the Seattle Police Department does not have a policy requiring officers to run a check for outstanding warrants for pedestrians or drivers stopped for traffic violations, but that he normally runs a check anyway. Petitioner was cooperative at all times after he was stopped by the officer.

The warrant check lasted five to ten minutes, with verification taking an additional five to ten minutes. Petitioner was not free to leave during this period. The officer did not cite him for the traffic infraction ("jaywalking”) for which he was stopped, but formally arrested him for two outstanding warrants determined in the warrant check.

At the police station, in a search incident to Petitioner’s arrest under the outstanding warrants, Officer Chittenden discovered a bindle of heroin in Petitioner’s pocket. Based upon this discovery, petitioner was charged by the King County Prosecuting Attorney in the King County Superior Court on February 24, 1994 with violation of the Uniform Controlled Substances Act, the Information reading:

That the defendant TRAVIS LEE RIFE in King County, Washington on or about February 19, 1994, unlawfully and feloniously did possess heroin, a controlled substance and narcotic drug;

Contrary to RCW 69.50.401(d), and against the peace and dignity of the State of Washington.[⁴]

At the CrR 3.6 hearing Petitioner moved to suppress the heroin, claiming the original pedestrian traffic stop was pretextual. His motion was denied. The case proceeded to trial upon stipulated facts. He was found "guilty” as charged. The trial court, the Honorable Janice Niemi, Judge Pro Tempore, concluded that because Petitioner committed the infraction of jaywalking, the officer had sufficient cause to stop him and request identification.⁵ The court also concluded the warrant check was not intrusive; the officer properly arrested Petitioner under the outstanding warrants; the heroin was found during a search incident to arrest; Petitioner’s constitutional rights were not violated by the officer; and the heroin found during the search was admissible at trial. The motion for suppression of evidence was denied.⁶

Petitioner appealed his conviction, arguing his detention following his stop for a pedestrian traffic infraction to allow the officer to run a warrant check constituted an unlawful seizure under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution. On April 15, 1996, the Court of Appeals rejected Petitioner’s argument and affirmed the trial court. The court held "an officer may detain a person stopped for a routine traffic infraction for a reasonable period of time, in order to check for outstanding warrants, and upon receiving a positive response, for the additional time it takes to verify the warrants.”⁷ The Court of Appeals denied reconsideration on May 21, 1996.

Petitioner filed in this Court a motion for discretionary review which was granted on November 13, 1996.

DISCUSSION

Under Washington statutes, a pedestrian offense is "designated as a traffic infraction and may not be classified as a criminal offense” unless the violation falls into one of the exceptions provided by the statute.⁸ The exceptions are not relevant to this case.

The duty to obey a police officer and the authority of the officer are expressed in RCW 46.61.021, which states:

(1) Any person requested or signaled to stop by a law enforcement officer for a traffic infraction has a duty to stop.

(2) Whenever any person is stopped for a traffic infraction, the officer may detain that person for a reasonable period of time necessary to identify the person, check the status of the person’s license, insurance identification card, and the vehicle’s registration, and complete and issue a notice of traffic infraction.

(3) Any person requested to identify himself to a law enforcement officer pursuant to an investigation of a traffic infraction has a duty to identify himself, give his current address, and sign an acknowledgment of receipt of the notice of infraction.[⁹]

Seattle Municipal Code 11.59.090 uses almost identical language to RCW 46.61.021 except it uses "peace officer” instead of "law enforcement officer.”¹⁰ Neither the statute nor the Seattle Municipal Code grants authority for a police officer to run a warrant check after stopping a person for a routine traffic infraction. Neither the Legislature nor the Seattle City Council has included that authority in the statute or the code.

Fourth Amendment of the United States Constitution

Petitioner argues detention of a person stopped for a pedestrian traffic infraction for an additional purpose and to run a warrant check without reasonable suspicion violates the Fourth Amendment of the United States Constitution. He further argues the warrant check expands the detention in scope and duration from what is necessary to address the traffic infraction and that it violates article I, section 7 of the Washington Constitution.

• Because of the decision we reach, we do not address the constitutional issues. Nor do we believe the circumstances of this case rise to constitutional magnitude.

State v. Rothenberger

The parties were specifically requested by this court to address the question whether State v. Rothenberger¹¹ provides authority relevant to this case. In Rothenberger the defendants appealed their King County conviction for burglary. This Court affirmed the conviction.

While driving through the State of Oregon, Ronald Dean Rothenberger and Samuel Eugene Pernar were stopped for a "routine check to determine if the driver was properly licensed to drive a motor vehicle . . . .”¹² The driver did not have a driver’s license, and was issued a citation for driving without a license. However, the passenger and owner of the automobile, upon showing his driver’s license and switching positions in the vehicle, was allowed to drive away. Shortly after they drove away, the police officer determined from the name on the driver’s license that the driver was wanted on felony charges. The officer radioed ahead. A roadblock was set up and the driver was arrested. The automobile was then searched and items relating to a burglary in Seattle were found. The King County charge followed. Defendants claimed the driver’s identity would not have been discovered if they had not been unlawfully stopped by the Oregon police. This Court concluded that even if the stop were unlawful, the officer "having discovered from an independent source that Rothenberger was wanted on a felony charge, not only had the right but the duty to pursue Rothenberger and arrest him, if that was practicable, or to get that information to officers who could intercept him.”¹³ The court did not suppress the evidence obtained in the search of the automobile.¹⁴

Respondent State argues in this case that, regardless of the validity of the seizure, the heroin should be admitted in evidence because it was found after the defendant was lawfully arrested on outstanding warrants. Respondent states that, based on the "independent source” test announced in State v. Warner, "if there are intervening independent factors in the chain of causation from the original illegality to the evidence in question, the evidence will not be suppressed,”¹⁵ the intervening independent factor in this case being the outstanding warrants found through the warrant check.

Citing United States v. Leon, Respondent states "[t]he primary purpose of the exclusionary rule is to deter police misconduct, not to provide a defendant with a sporting chance to dispose of incriminating evidence.”¹⁶ Respondent argues the inquiry should be directed to the conduct of the police officer and not to what the defendant may have done with the illegal substance if there had not been an improper stop or arrest.¹⁷ Respondent claims the officer was "acting in good faith.”¹⁸ But this court has not adopted that formulation of the exclusionary rule.

In State v. Boland,¹⁹ this court stated the "primary objectives underlying the exclusionary rule” are:

[Fjirst, and most important, to protect privacy interests of individuals against unreasonable governmental intrusions; second, to deter the police from acting unlawfully in obtaining evidence; and third, to preserve the dignity of the judiciary by refusing to consider evidence which has been obtained through illegal means.[²⁰]

Respondent argues that under the "inevitable discovery rule” which was adopted after Rothenberger, if the evidence in question would have been discovered from other than the tainted source, then it is admissible.²¹ Respondent argues that if the officer had allowed Petitioner to depart and then concluded his warrant search, it is reasonably probable that upon learning of the outstanding warrant the officer would later have arrested Mr. Rife and the search incident to arrest would have revealed the heroin.

Petitioner argues there was a direct nexus between the unlawful detention and the seized heroin.²² The heroin, he argues, was not revealed from an "independent source” but was directly connected to the unlawful detention.²³ Petitioner states the difference between his case and Rothenberger is that the defendants in that case were released after being illegally seized but that Petitioner Rife was not released. According to Petitioner:

This injected a significant intervening event into the equation, leading to speculation as to . . . whether the evidence would have even been rightfully discovered, but-for the unlawful stop. . . . The only speculation here is whether Mr. Rife would have possessed the heroin had Officer Chittenden properly released him without the warrant check, then after learning of the outstanding warrant, located and arrested him. . . . Unlike in Rothenberger, there was no attenuating time, events, or independent sources leading to the discovery of the heroin.[²⁴]

Respondent also argues that under Rothenberger, even if the detention was unduly long, the heroin would still be .admissible.²⁵ Rothenberger does not address the issue of detaining a person for an "unduly long” period of time. But in State v. Williams this Court stated "[a] citizen’s right to be free of governmental interference with [the citizen’s] movement means, at a minimum, that when such interference must occur, it be brief and related directly to inquiries concerning the suspect.”²⁶

Rothenberger is distinguishable from this case and provides no authority relevant to it. Most significantly, in this case Petitioner Rife was detained for the traffic infraction ("jaywalking”) but not released while the police officer ran the warrant search. In Rothenberger the defendants were released after the illegal seizure.

SUMMARY AND CONCLUSIONS

The Legislature through RCW 46.61.021(2) has authorized detention by a police officer investigating a traffic infraction for a "reasonable period of time necessary to identify the person, check the status of the person’s license, insurance identification card, and the vehicle’s registration, and complete and issue a notice of traffic infraction.” This is not totally applicable to a stop for a pedestrian traffic infraction of "jaywalking,” but seems obviously to apply to the driver of a vehicle. The Legislature did not grant police officers authority to search for outstanding warrants upon making a stop for a traffic infraction. The Seattle Municipal Code uses essentially the same language as the statute. Neither that code nor Seattle Police Department procedures authorizes police officers to run warrant checks on persons who have merely committed traffic infractions. The police officer in this case acknowledged he was following his own procedure which was not authorized by any ordinance, statute or regulation.

In this case the Washington Court of Appeals based its conclusion on the Fourth Amendment of the United States Constitution. In considering an almost identical issue of a warrant search following a routine traffic violation ("jaywalking”), the United States Court of Appeals for the Ninth Circuit held that, without reasonable grounds for suspicion of a crime, the continued detention was unreasonable and the evidence rightfully suppressed.²⁷ However, this Court is not obligated to follow that decision. Nor do we believe this case is of constitutional magnitude.

This Court has stated that, as a general rule, warrantless seizures are per se unreasonable. The Court has restricted warrantless seizures to those supported by consent, exigent circumstances, searches incident to valid arrest, inventory searches, plain view and Terry²⁸ investigative stops.

The search in this case was unwarranted because the police officer had no authority to conduct it. The heroin seized thus must be suppressed.

We reverse the Court of Appeals, Division I, which affirmed the King County Superior Court in admitting in evidence heroin seized from Petitioner Travis Lee Rife in a search incident to his arrest upon outstanding warrants discovered during a warrant search when he was stopped for a pedestrian traffic infraction, "jaywalking.”

Dolliver, Johnson, Alexander, and Sanders, JJ., concur.

1 ^here is no offense actually designated as "jaywalking” under the Revised Code of Washington or the Seattle Municipal Code. The parties and the court, however, referred to the event as "jaywalking.” Seattle Municipal Code 11.40.020 provides "Pedestrians shall be subject to traffic-control signals as provided in Chapter 11.50 and to the direction of officers discharging the duty of directing traffic. (RCW 46.61.020)”

2 Tr. of Trial at 10, 13. Petitioner lived at 926 North 86th Street, approximately one-and-a-half blocks from where he was stopped. See id. at 40 and 47.

3 Facts adapted from State v. Rife, 81 Wn. App. 258, 913 P.2d 850 (1996); see also Order on Stipulated Facts Trial—Findings of Fact and Conclusions of Law, King County Cause No. 94-1-01286-6.

4 information, King County Cause No. 94-1-01286-6.

RCW 69.50.401(d) states:

It is unlawful for any person to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his or her professional practice, or except as otherwise authorized by this chapter. Any person who violates this subsection is guilty of a crime, and upon conviction may be imprisoned for not more than five years, fined not more than ten thousand dollars, or both, except as provided for in subsection (e) of this section.

5 The date of the court’s finding is not clear from the record. The Judgment and Sentence filed July 6, 1994 was signed on June 23, 1994, but by a different judge. The Order on Stipulated Facts Trial—Findings of Fact and Conclusions of Law was signed by Judge Janice Niemi on January 4, 1995.

6 See Findings of Fact, Conclusions of Law Pursuant to CrR 3,6, King County No. 94-1-01286-6; see also Order on Stipulated Facts Trial—Findings of Fact and Conclusions of Law, No. 94-1-01286-6.

7 State v. Rife, 81 Wn. App. 258, 261, 913 P.2d 850 (1996).

8 RCW 46.63.020 (Violations as traffic infractions—Exceptions); see RCW 46.61.050 (Obedience to and required traffic control devices); see also Seattle Municipal Code (SMC) 11.31.010 (Violations as traffic infractions); SMC 11.31.060(C) ("The burden of proof is upon the City to establish the commission of the infraction by a preponderance of the evidence.”).

9 RCW 46.61.021 (emphasis added); see SMC 11.59.090.

10 SMC 11.59.090 (Duty to obey a police officer—Traffic infraction).

11 73 Wn.2d 596, 440 P.2d 184 (1968).

12 Id. at 597.

13 Id. at 599.

14 Jd. at 601.

15 125 Wn.2d 876, 888, 889 P.2d 479 (1995).

16 Supplemental Br. of Resp’t at 15 (citing United States v. Leon, 468 U.S. 897, 916, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984)).

17 /d.

18 Id. at 16.

19 115 Wn.2d 571, 800 P.2d 1112 (1990).

20 Id. at 581.

21 Supplemental Br. of Resp’t at 16 (citing State v. Warner, 125 Wn.2d 876, 889, 889 P.2d 479 (1995) ("Absolute inevitability of discovery is not required but simply a reasonable probability that evidence in question would have been discovered other than from a tainted source.”)).

22 Supplemental Br. of Pet’r at 22.

23 id.

24 id. at 22-23.

25 Supplemental Br. of Resp’t at 16.

26 102 Wn.2d 733, 741, 689 P.2d 1065 (1984).

27 United States v. Luckett, 484 F.2d 89 (9th Cir. 1973).

28 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).