State v. Ladson

Sanders, J.

— The issue is whether pretextual traffic stops violate article I, section 7, of the Washington Constitution. We find they do and, accordingly, reverse the Court of Appeals and reinstate the trial court’s suppression order.

The facts are basically undisputed. On October 5, 1995 City of Lacey police officer Jim Mack and Thurston County sheriffs detective Cliff Ziesmer were on proactive gang patrol. The officers explained they do not make routine traffic stops while on proactive gang patrol although they use traffic infractions as a means to pull over people in order to initiate contact and questioning. The trial court factually found:

While on gang patrol, officer Mack selectively enforces traffic violations depending on whether he believes there is the potential for intelligence gathering in such stops.

Clerk’s Papers (CP) at 21 (Findings of Fact in the Ruling of the Court Pursuant to Criminal Rule 3.6 (Apr. 12, 1996) [Findings of Fact] ¶ 1.23).

On the day in question Richard Fogle attracted the attention of officers Mack and Ziesmer as he drove by. Fogle and his passenger Thomas Ladson are both African-American. Although the officers had never seen Ladson before, they recognized Fogle from an unsubstantiated street rumor that Fogle was involved with drugs. The trial court found, “Officer Mack’s suspicions about Fogle’s reputed drug dealing was his motivation in finding a legal reason to initiate the stop of Fogle’s vehicle.” CP at 20 (Findings of Fact ¶ 1.20).

The officers tailed the Fogle vehicle looking for a legal justification to stop the car. They shadowed the vehicle while it refueled at a local filling station and then finally pulled Fogle over several blocks later on the grounds that Fogle’s license plate tabs had expired five days earlier. The officers do not deny the stop was pretextual.

The police then discovered Fogle’s driver’s license was suspended and arrested him on the spot. CP at 19 (Findings of Fact ¶¶ 1.10, 1.11). After securing Fogle in handcuffs in the squad car, the police conducted a full search of the car “incident to Fogle’s arrest.” CP at 20 (Findings of Fact ¶ 1.14). Then they turned their attention to the passenger, Thomas Ladson. They ordered Ladson to exit the vehicle, patted him down, and required him to stand against the car while they searched its interior. The police searched Ladson’s jacket which was in the passenger’s seat and found a small handgun. Ladson was placed under arrest and searched. On Ladson’s person and in his jacket the police found several haggies of marijuana and some $600 in cash.

Ladson was charged with unlawful possession of a controlled substance with intent to deliver while armed with a deadly weapon, and possession of a stolen firearm.

Ladson filed a pretrial motion to suppress the evidence on the grounds it was obtained during an unconstitutional pretextual traffic stop. The trial court agreed and granted the motion ruling, “Pretextual stops by law enforcement officers are violative of the Constitution.” CP at 21 (Conclusions of Law in the Ruling of the Court Pursuant to Criminal Rule 3.6 (Apr. 12, 1996) ¶ 2.1).

The State appealed, and shortly thereafter the United States Supreme Court decided Whren v. United States, 517 U.S. 806, 813-16, 116 S. Ct. 1769, 1774-76, 135 L. Ed. 2d 89 (1996), holding pretextual traffic stops do not violate the Fourth Amendment to the United States Constitution. Accordingly the Court of Appeals, relying on Whren, reversed the suppression order. State v. Ladson, 86 Wn. App. 822, 830, 939 P.2d 223 (1997). However, the Court of Appeals refused to address the state constitutional claim, stating Ladson inadequately briefed the issue. Ladson, 86 Wn. App. at 829.

Ladson then sought review by this court. His petition for review, which thoroughly addressed the state law issue, argued article I, section 7, of the state constitution provides broader protection than does the Fourth Amendment in the area of pretextual traffic stops and contended article I, section 7, renders pretextual traffic stops unconstitutional. We granted review of that discrete issue. State v. Ladson, 133 Wn.2d 1028, 950 P.2d 476 (1998).

Analysis

Absent controlling precedent, a party asserting a provision of the state constitution offers more protection than a similar provision in the federal constitution must persuade the court this is so by means of the analysis set forth in State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986). Under Gunwall, the court considers six nonexclusive factors. Id. at 61-62. Once this court has conducted a Gunwall-type analysis and has determined that a provision of the state constitution independently applies to a specific legal issue, in subsequent cases it is unnecessary to repeat the Gunwall-type analysis of the same legal issue. State v. White, 135 Wn.2d 761, 769, 958 P.2d 982 (1998); State v. Hendrickson, 129 Wn.2d 61, 69-70 n.1, 917 P.2d 563 (1996). It is already well established that article I, section 7, of the state constitution has broader application than does the Fourth Amendment of the United States Constitution. See, e.g., Hendrickson, 129 Wn.2d at 69-70 n.1; State v. Stroud, 106 Wn.2d 144, 148, 720 P.2d 436 (1986); Gunwall, 106 Wn.2d at 63-64; see also State v. Myrick, 102 Wn.2d 506, 510, 688 P.2d 151 (1984). In City of Seattle v. Mesiani, 110 Wn.2d 454, 755 P.2d 775 (1988), article I, section 7, was interpreted independently of the Fourth Amendment in the context of the same legal issue which is present in this case, namely warrantless stops of automobiles for the purpose of investigation. Mesiani, 110 Wn.2d at 457. Therefore, pursuant to established precedent governing this case, we appropriately turn directly to an examination of article I, section 7.

Washington Constitution article I, section 7

Washington Constitution article I, section 7, provides:

No person shall be disturbed in his private affairs, or his home invaded, without authority of law.

Article I, section 7, is explicitly broader than that of the Fourth Amendment1 as it “ ‘clearly recognizes an individual’s right to privacy with no express limitations’ ” and places greater emphasis on privacy. 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)). Further, while 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.” Myrick, 102 Wn.2d at 511 (emphasis added)).

We begin our analysis by acknowledging the essence of this, and every, pretextual traffic stop is that the police are pulling over a citizen, not to enforce the traffic code, but to conduct a criminal investigation unrelated to the driving. Therefore the reasonable articulable suspicion that a traffic infraction has occurred which justifies an exception to the warrant requirement for an ordinary traffic stop does not justify a stop for criminal investigation.

“ ‘As a general rule, warrantless searches and seizures are per se unreasonable.’ ” Hendrickson, 129 Wn.2d at 70 (quoting State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980)). They are, however, subject to “a few ‘ “jealously and carefully drawn” exceptions’ . . . which ‘provide for those cases where the societal costs of obtaining a warrant . . . outweigh the reasons for prior recourse to a neutral magistrate.’ ” Id. (emphasis added) (quoting Houser, 95 Wn.2d at 149 (quoting Arkansas v. Sanders, 442 U.S. 753, 759, 99 S. Ct. 2586, 2590-91, 61 L. Ed. 2d 235 (1979), abrogated on other grounds by California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991))).

Exceptions to the warrant requirement fall into several broad categories: consent, exigent circumstances, searches incident to a valid arrest, inventory searches, plain view, and Terry2 investigative stops. Hendrickson, 129 Wn.2d at 71 (citing Robert F. Utter, Survey of Washington Search and Seizure Law: 1988 Update, 11 U. Puget Sound L. Rev. 411, 528-80 (1988)). The burden is always on the state to prove one of these narrow exceptions. Hendrickson, 129 Wn.2d at 71.

The warrant requirement is especially important under article I, section 7, of the Washington Constitution as it is the warrant which provides the “authority of law” referenced therein. Mesiani, 110 Wn.2d at 457. Absent a warrant, “[w]e have recognized that well-established principles of the common law may in some cases be sufficient to provide the authority of law required by Const, art. 1, § 7.” City of Seattle v. McCready, 123 Wn.2d 260, 273, 868 P.2d 134 (1994). However, neither party argues a common-law exception to the overall warrant requirement for investigatory stops.

At issue in this case is a traffic stop. Whether pretextual or not, a traffic stop is a “seizure” for the purpose of constitutional analysis, no matter how brief. Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979); Whren, 517 U.S. at 809-10; Mesiani, 110 Wn.2d at 460 (Dolliver, J., concurring). An ordinary traffic stop has been analogized by federal courts to investigative detention subject to the criteria of reasonableness set forth in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) and United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir. 1995). Under the Fourth Amendment to the United States Constitution, such investigative detention is permissible only if (1) “the officer’s action was justified at its inception,” and (2) “it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 20. Although federal courts construing the Fourth Amendment have concluded pretextual traffic stops may be accomplished without a warrant, we are not bound by that result under our state constitution which provides unique and substantially greater protection.

We have observed that ultimately our state constitutional provision is designed to guard against “unreasonable search and seizure, made without probable cause.” State v. Fields, 85 Wn.2d 126, 130, 530 P.2d 284 (1975). However, the problem with a pretextual traffic stop is that it is a search or seizure which cannot be constitutionally justified for its true reason (i.e., speculative criminal investigation), but only for some other reason (i.e., to enforce traffic code) which is at once lawfully sufficient but not the real reason. Pretext is therefore a triumph of form over substance; a triumph of expediency at the expense of reason. But it is against the standard of reasonableness which our constitution measures exceptions to the general rule, which forbids search or seizure absent a warrant. Pretext is result without reason.

Such is the dissent’s ultimate dilemma: How can this court articulate an exception to the warrant requirement based upon reasonable necessity when the warrant is avoided, not for a reason which would justify the warrant-less investigatory stop, but upon a pretext of form lacking connection to a reasonable, articulable suspicion of criminal activity which would justify the exception to the warrant requirement in the first place? Essentially the dissent suggests the search is not justified by the pretextual stop but by the independent grounds discovered at the stop, claiming, “once the initial stop is made, there may be other justification to detain or search independent of the traffic or equipment violation which justified the initial stop.” Dissent at 363. Of course, the dissent presumes its conclusion by assuming the initial pretextual stop was justified which is exactly the problem raised in this case. Even under the Fourth Amendment an investigatory stop for a traffic infraction (Terry stop) is proper only under the Fourth Amendment if “the officer’s action was justified at its inception.” Terry, 392 U.S. at 20. Only after that do we consider scope. Therefore it is the dissent, not the majority, which “collapses the justification for a traffic stop into the question of scope.” Dissent at 360.

We reached the same result in Mesiani wherein the court unanimously held sobriety roadblocks violate article I, section 7. We found the roadblock at which motorists were stopped and briefly investigated amounted to a Terry stop, but, because the police lacked articulable suspicion of criminal activity to randomly stop drivers, we found the practice unconstitutional under article I, section 7, because it lacked the “authority of law” which would have been supplied by a warrant. Mesiani, 110 Wn.2d at 457; see also McCready, 123 Wn.2d at 271.3

The question, then, becomes whether the fact that someone has committed a traffic offense, such as failing to signal4 or eating while driving,5 justifies a warrantless seizure which would not otherwise be permitted absent that “authority of law” represented by a warrant. The State argues it does. The State asks this court to approve the use of pretext to justify a warrantless seizure. We decline the invitation. Article I, section 7, forbids use of pretext as a justification for a warrantless search or seizure because our constitution requires we look beyond the formal justification for the stop to the actual one. In the case of pretext, the actual reason for the stop is inherently unreasonable, otherwise the use of pretext would be unnecessary.

We adopted a strict no-pretext rule in State v. Michaels, 60 Wn.2d 638, 374 P.2d 989 (1962). There the defendant was stopped and arrested for failing to use a left-turn signal and was searched incidént to the arrest. Id. at 639-40. It was undisputed that the defendant failed to signal and that such failure constituted an arrestable offense; however the facts revealed the stop and arrest were mere pretexts for the officer’s desire to conduct a criminal search. Indeed, the search turned up gambling dice for which defendant was prosecuted. Id. at 640. The issue presented was whether a search incident to a pretextual traffic stop and arrest was valid. After discussing and citing the large body of Washington state law on automobile search and seizure, id. at 640-44, we rejected the justification of pretext and suppressed the evidence, squarely holding, “An arrest may not be used as a pretext to search for evidence.” Id. at 644 (citing United States v. Lefkowitz, 285 U.S. 452, 52 S. Ct. 420, 76 L. Ed. 877, 82 A.L.R. 775 (1932), and Taglavore v. United States, 291 F.2d 262 (9th Cir. 1961)). Just as an arrest may not be used as a pretext to search for evidence, a traffic infraction may not be used as a pretext to stop to investigate for a sufficient reason to search even further. Michaels controls.

The dissent attempts to distinguish Michaels by claiming (1) custodial arrests for minor traffic violations are now prohibited and (2) the search for gambling devices was not justified by a traffic infraction. The dissent also states a stop for a minor traffic violation does not, “in and of itself,” justify any further search or seizure beyond “the brief detention permitted to allow the officer to issue and serve a citation and notice.” Dissent at 368. These factual differenees, however, do not distinguish the principled holding in Michaels that a warrantless search may not constitutionally follow a facially valid but pretextual arrest from the same question posed here in the even less demanding context of a civil infraction traffic stop. In both cases the arrest (or stop) is permissible but for the fact it is a pretext to accomplish an impermissible ulterior motive. In Michaels the search was incident to a pretextual arrest whereas here the stop was a pretext for an investigation to discover grounds which would justify yet a further search. If the warrantless fruits of a pretextual arrest were properly suppressed, the same principle dictates that so too must be the warrantless fruits of a pretextual traffic stop.

In 1968 we again held police may not rely on a pretext to conduct a search or seizure. State v. Montague, 73 Wn.2d 381, 385, 438 P.2d 571 (1968) (“Neither would this court have any hesitancy in suppressing evidence of crime found during the taking of the inventory, if we found that either the arrest or the impoundment of the vehicle was resorted to as a device and pretext for making a general exploratory search of the car without a search warrant.”) (citing Michaels, 60 Wn.2d 638, and People v. Garrison, 189 Cal. App. 2d 549, 11 Cal. Rptr. 398 (1961)).6

In 1972 and 1973 the United States Supreme Court backed away from its earlier pretext rulings. In United States v. Robinson, 414 U.S. 218, 221 n.1, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973), the Supreme Court decided use of a “traffic violation arrest as a mere pretext for a narcotics search” is permissible under the Fourth Amendment so long as the motorist could have been arrested for the violation. Similarly, Gustafson v. Florida, 414 U.S 260, 266, 94 S. Ct. 488, 38 L. Ed. 2d 456 (1973), which was decided the following year, held that a search incident to a pretextual traffic arrest is valid even though admittedly pretextual.

But in State v. Hehman, 90 Wn.2d 45, 50, 578 P.2d 527 (1978), our first postincorporation divergence from federal precedent, we rejected Robinson and Gustafson and the Supreme Court’s abandonment of the no-pretext rule. In Hehman the issue was whether a search incident to an arrest for a minor traffic stop was valid. Hehman not only rejected the recent federal cases7 but reaffirmed the pretext rule in Washington and further held under state public policy minor traffic stops could not support an arrest at all because “ ‘the risk of pretext arrests is heightened.’ ” Hehman, 90 Wn.2d at 49 (quoting David C. Anson, Note, Criminal Procedure—Personal Search of Suspect Incident to Custodial Arrest Is Per Se “Reasonable” and Requires No Additional Justification—United States v. Robinson, 414 U.S. 218 (1973); Gustafson v. Florida, 414 U.S. 260 (1973), 49 Wash. L. Rev. 1123, 1142 (1974)).

Hehman was “intended to lessen the risk of minor offenses being used for pretextual arrests.” State v. Chrisman, 100 Wn.2d 814, 819, 676 P.2d 419 (1984). The Legislature then went even further to protect against pretextual traffic arrests by codifying Hehman and decriminalizing the traffic code. Laws of 1979, 1st Ex. Sess., ch. 136, § 2, codified at RCW 46.63.020; 46.64.015. See State v. Reding, 119 Wn.2d 685, 690, 835 P.2d 1019 (1992) (“[T]he amendments to RCW 46.64.015 were essentially designed to codify Hehman.”). One consideration in decriminalizing the traffic code was to prevent police from using traffic infractions to arrest the motorist as a pretext to search. On this point the Washington courts and Legislature agree. The police practice of using the decriminalized traffic code to stop motorists for Terry stops is no different. Hehman prohibits it.

All cases since Hehman and the decriminalization of the traffic code have forbidden pretext to circumvent the article I, section 7, warrant requirement or expand “jealously guarded” exceptions.8 For example, in State v. Simpson, another article I, section 7, case, this court affirmed the pretext rule in the context of automobile inventory searches, holding for a warrantless inventory search to be valid where the driver was already in jail, “the State must demonstrate that the impoundment was lawful, and that the inventory search was proper and not a mere pretext for an investigatory search.” 95 Wn.2d 170, 189, 622 E2d 1199 (1980) (emphasis added). Once again, warrants are the rule while exceptions are narrowly tailored to meet the reasonable necessity of the common-law ground which provides the authority of law to dispense with the warrant requirement. Pretext is no substitute for reason. Thus, this and other pretextual inventory search cases prove the rule that recognized exceptions to the warrant requirement are limited by the reason which called them into existence, not a pro forma device, as the dissent would have it, to undermine the “authority of law” warrant requirement enshrined in our state constitution.

In State v. Houser, also an article I, section 7, case, we held the search of a car glove compartment was justified to determine ownership of the car, but we held search of the car’s trunk as an inventory search was impermissible because it was grounded on a pretext to an exception to the warrant requirement which did not constitute legitimate probable cause to conduct a warrantless search. State v. Houser, 95 Wn.2d 143, 155, 622 P.2d 1218 (1980) (“In sanctioning such a[n inventory] search, however, we recognize the possibility for abuse and have required that the State show that the search was conducted in good faith and not as a pretext for an investigatory search.”). Houser explained that the police may validly exercise the community caretaking function of removing an abandoned vehicle but may not use that authority as a pretext to conduct unrelated criminal investigation. 95 Wn.2d at 151-52. Houser is on point. In the current case, the police may enforce the traffic code, a function similar to the community caretaking function addressed in Houser. They may not, however, use that authority as a pretext or justification to avoid the warrant requirement for an unrelated criminal investigation.

Our courts continue to follow the no-pretext rule in cases of warrantless searches pursuant to the emergency exception. For example, in State v. Angelos, the Court of Appeals held, “When the use of the emergency exception is challenged on appeal, the reviewing court must satisfy itself that the claimed emergency was not simply a pretext for conducting an evidentiary search. . . . The search must not be primarily motivated by intent to arrest and seize evidence.” State v. Angelos, 86 Wn. App. 253, 256-57, 936 P.2d 52 (1997) (citing State v. Nichols, 20 Wn. App. 462, 464, 581 P.2d 1371 (1978)), review denied, 133 Wn.2d 1034, 950 P.2d 478 (1998).9

The ultimate teaching of our case law is that the police may not abuse their authority to conduct a warrantless search or seizure under a narrow exception to the warrant requirement when the reason for the search or seizure does not fall within the scope of the reason for the exception.

But in this case the state asks us to abandon our commitment against pretext and significantly undermine the vitality of article I, section 7, in favor of the lower standard under the Fourth Amendment announced in Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996). Whren rests squarely on Robinson and Gustafson for the proposition that pretext does not run afoul of the Fourth Amendment. Whren, 517 U.S. at 813. But, “unlike the federal court, we place no importance in Robinson [and Gustafson\, since we already rejected its reasoning in Hehman.” State v. Chrisman, 100 Wn.2d 814, 820, 676 P.2d 419 (1984). And we have rejected Robinson and Gustafson precisely because of the risk of pretextual searches and seizures. For the same reason Whren does not define or limit our rights under independent state constitutional safeguards. Const, art. I, § 7.10

We conclude the citizens of Washington have held, and are entitled to hold, a constitutionally protected interest against warrantless traffic stops or seizures on a mere pretext to dispense with the warrant when the true reason for the seizure is not exempt from the warrant requirement. We therefore hold pretextual traffic stops violate article I, section 7, because they are seizures absent the “authority of law” which a warrant would bring. Const. art. I, § 7.

When determining whether a given stop is pretextual, the court should consider the totality of the circumstances, including both the subjective intent of the officer as well as the- objective reasonableness of the officer’s behavior. Cf. State v. Angelos, 86 Wn. App. 253, 256, 936 P.2d 52 (1997) (“When the use of the emergency exception is challenged on appeal, the reviewing court must satisfy itself that the claimed emergency was not simply a pretext for conducting an evidentiary search. To satisfy the exception, the State must show that the officer, both subjectively and objectively, ‘is actually motivated by a perceived need to render aid or assistance.’ ” (citations omitted) (quoting State v. Loewen, 97 Wn.2d 562, 568, 647 P.2d 489 (1982)). We recognize the Court of Appeals has held that the test for pretext is objective only. See State v. Chapin, 75 Wn. App. 460, 464, 879 P.2d 300 (1994). But an objective test may not fully answer the critical inquiry: Was the officer conducting a pretextual traffic stop or not?11 We cannot agree with Chapin and disapprove it to the extent it limits the query to objective factors alone.

When an unconstitutional search or seizure occurs, all subsequently uncovered evidence becomes fruit of the poisonous tree and must be suppressed. State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986). Under article I, section 7, suppression is constitutionally required. State v. White, 97 Wn.2d 92, 110-12, 640 P.2d 1061 (1982); State v. Boland, 115 Wn.2d 571, 582-83, 800 P.2d 1112 (1990). We affirm this rule today, noting our constitutionally mandated exclusionary rule “saves article 1, section 7 from becoming a meaningless promise.” Sanford E. Fitter, The Origin and Development of Washington's Independent Exclusionary Rule: Constitutional Right and Constitutionally Compelled Remedy, 61 Wash. L. Rev. 459, 508 (1986). Exclusion provides a remedy for the citizen in question and saves the integrity of the judiciary by not tainting our proceedings by illegally obtained evidence. State v. Crawley, 61 Wn. App. 29, 34-35, 808 P.2d 773 (1991).

Here, the initial stop, which is a seizure for constitutional purposes, was without authority of law because the reason for the stop (investigation) was not exempt from the warrant requirement. It is elementary that “[i]f the initial stop was unlawful, the subsequent search and fruits of that search are inadmissible . . . .” State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986). Suppression is required. Reversed.

Smith, Johnson, and Alexander, JJ, and Doluver, J. Fro Tern., concur.

1 The Fourth Amendment provides, “The right of the people to he secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . .

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

3 The dissent contends the “authority of law” required by article I, section 7, may be supplied by a statute in lieu of a warrant or recognized common-law exception to the warrant requirement, citing State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986), and State v. Salinas, 119 Wn.2d 192, 829 P.2d 1068 (1992). Dissent at 360, 361. However in Salinas we specifically recognized the “reach of the Legislature under article 1, section 7 or the interplay between the courts and the Legislature which might be required by the phrase ‘without authority of law’ ” in article I, section 7 had not been determined and would “await another case and another day.” Salinas, 119 Wn.2d at 203. That day came when we explained “[clases from the earliest days of statehood indicate search warrants were issued pursuant to statutory authorization.” City of Seattle v. McCready, 123 Wn.2d 260, 274, 868 P.2d 134 (1994). That is to say, “statutory authorization” references a statute authorizing a court to issue a warrant, not a statute dispensing with the warrant requirement. Id. See also In re Personal Restraint of Maxfield, 133 Wn.2d 332, 345-46, 945 P.2d 196 (1997) (Madsen, J., concurring) (“Except in the rarest of circumstances, the ‘authority of law’ required to justify a search pursuant to article I, section 7 consists of a valid search warrant or subpoena issued by a neutral magistrate. This court has never found that a statute requiring a procedure less than a search warrant or subpoena constitutes ‘authority of law’ justifying an intrusion into the ‘private affairs’ of its citizens. This defies the very nature of our constitutional scheme and would set a precedent of legislative deference that I am unwilling to accept in our state’s constitutional jurisprudence. It is the court, not the Legislature, that determines the scope of our constitutional protections.” (Citation and footnotes omitted.)).

4 See RCW 46.61.305(2) (making it an infraction to change lanes or turn without first signaling continuously for 100 feet prior to turning).

5 Tacoma’s municipal code warns drivers, “It is unlawful for any person to operate any vehicle upon the public highways of the City of Tacoma while eating any food or drinking any beverage.” Tacoma Municipal Code § 11.05.130 (1993).

6 While Montague may have Fourth Amendment roots, it is part of a long line of cases which has been instrumental in shaping the privacy rights held by Washingtonians. Such case law takes on state significance when we ask what privacy rights Washingtonians have held.

7 See State v. Hehman, 90 Wn.2d 45, 49, 578 P.2d 527 (1978):

While United States v. Robinson, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973) and Gustafson v. Florida, 414 U.S. 260, 94 S. Ct. 488, 38 L. Ed. 2d 456 (1973) do not require the result reached herein, they do not in any way prevent our reaching this result. Decisions of the United States Supreme Court establish the minimum rights which may be accorded a defendant and yet comply with the guaranties of the United States Constitution.

8 See, e.g., State v. Bonds, 98 Wn.2d 1, 10, 653 P.2d 1024 (1982) (“An important reason for suppressing evidence from unlawful misdemeanor arrests is to discourage ‘pretext’ arrests for misdemeanors in order to search for evidence of more serious offenses.”) (citing Hehman, 90 Wn.2d 45); State v. Orcutt, 22 Wn. App. 730, 737, 591 P.2d 872 (1979) (“Furthermore, the officer’s failure to question the defendant about his observation in the glove box strongly suggests the discovery of the marijuana provided a pretext, rather than probable cause to search the vehicle.”) (citing Hehman, 90 Wn.2d 45).

9 Compare Justice Tahnadge’s dissent (in which Justice Durham concurred) in State v. Rife which argued, “Rife’s release and subsequent arrest are not necessary where, as in this case, the original stop was not pretextual . . . .” State v. Rife, 133 Wn.2d 140, 158-59, 943 P.2d 266 (1997) (Talmadge, J., dissenting), holding superseded by statute as stated in State v. King, 89 Wn. App. 612, 623, 949 P.2d 856 (1998). The logical corollary is that if the original stop was pretextual then it would be illegal.

10 We note if we were to depart from our holdings and allow pretextual traffic stops, Washington citizens would lose their privacy every time they enter their automobiles. The traffic code is sufficiently extensive in its regulation that “[wjhether it be for failing to signal while changing lanes, driving with a headlight out, or not giving ‘full time and attention’ to the operation of the vehicle, virtually the entire driving population is in violation of some regulation as soon as they get in their cars, or shortly thereafter.” Peter Shakow, Let He Who Never Has Turned Without Signaling Cast the First Stone: An Analysis of Whren v. United States, 24 Am. J. Crim. L. 627, 633 (1997) (footnote omitted). Thus, nearly every citizen would be subject to a Terry stop simply because he or she is in his or her car. But we have repeatedly affirmed that Washingtonians retain their privacy while in the automobile and we will do so today. See City of Seattle v. Mesiani, 110 Wn.2d 454, 456-57, 755 P.2d 775 (1988) (“From the earliest days of the automobile in this state, this court has acknowledged the privacy interest of individuals and objects in automobiles.”) (citing State v. Gibbons, 118 Wash. 171, 187, 203 P 390 (1922)).

Additionally, we note a fundamental difference between the detention of a citizen by gang patrol officers aimed at discovering evidence of crimes, which is usually “hostile,” and a community caretaking stop aimed at enforcement of the traffic code. Mesiani, 110 Wn.2d at 458. Indeed, being ticketed for speeding is very different from being stopped by the gang patrol for full scale investigation.

11 “Pretext is, by definition, a false reason used to disguise a real motive. Thus, what is needed is a test that tests real motives. Motives are, by definition, subjective.” Patricia Leary & Stephanie Rae Williams, Toward a State Constitutional Check on Police Discretion to Patrol the Fourth Amendment’s Outer Frontier: A Subjective Test for Pretextual Seizures, 69 Temp. L. Rev. 1007, 1038 (1996).