State v. Carney

¶15 (concurring) — I concur with the majority’s result. However, I write separately to attempt to clarify an issue that many police officers must address: “When and for how long may a witness to a crime be detained to obtain evidence relating to that crime?”

Penoyar, J.

¶16 My view is that this officer’s show of authority prior to the records check—pulling behind the black car with emergency lights on and requesting identification— was a constitutional warrantless seizure. However, once the officer obtained Carney’s identification, the justification for her detention ended and she should not have been detained for a records check. Thus the evidence seized as a result of the records check should be suppressed.

¶17 Article I, section 7 of the Washington Constitution provides that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” A warrantless seizure is considered per se unreasonable 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 seizure occurred. State v. O’Neill, 148 Wn.2d 564, 574, 62 P.3d 489 (2003).

¶18 A seizure occurs when, considering all the circumstances, an individual’s freedom of movement is restrained and the individual would not believe that 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; see State v. Rankin, 151 Wn.2d 689, 695, 92 P.3d 202 (2004). The test is purely an objective one, looking to the actions of the law enforcement officer. State v. Young, 135 Wn.2d 498, 501, 957 P.2d 681 (1998).

f 19 Here, Deputy Kendall pulled up behind the sedan with emergency lights flashing, approached the vehicle, commanded the women to show their hands, and then *206asked for their identification. Objectively, these actions restrained Carney’s freedom of movement and convinced her that she was not free to leave. Thus, a warrantless seizure did occur.

¶20 Generally, warrantless searches and seizures are per se unreasonable. State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980). Nonetheless, there are a few “ ‘jealously and carefully drawn’ exceptions” to the warrant requirement, which “ ‘provide for those cases where the societal costs of obtaining a warrant, such as danger to law officers or the risk of loss or destruction of evidence, outweigh the reasons for prior recourse to a neutral magistrate.’ ” Houser, 95 Wn.2d at 149 (internal quotation marks omitted) (quoting Arkansas v. Sanders, 442 U.S. 753, 759, 99 S. Ct. 2586, 61 L. Ed. 2d 235 (1979)). The Washington Supreme Court has set out five separate circumstances which could be “exigent”—(1) hot pursuit, (2) fleeing suspect, (3) danger to arresting officer or to the public, (4) mobility of the vehicle, and (5) mobility or destruction of the evidence. State v. Counts, 99 Wn.2d 54, 60, 659 P.2d 1087 (1983) (citing United States v. Kreimes, 649 F.2d 1185, 1192 (5th Cir. 1981)).

¶21 Here, Deputy Kendall had information from dispatch and from his own observation that the motorcycle driver was driving recklessly and endangering the public.4 However, he did not effect a seizure of the motorcyclist, in which case all five of the exigent circumstances above would have applied. Instead, he chose to detain the two women in the vehicle, whom he believed had information regarding the identity of the reckless driver.

¶22 Several courts have adopted a slightly different definition of “exigent circumstances” where the officer is detaining a witness, rather than a suspect. “[A]n officer may detain a witness only when: a serious crime occurred *207recently; the officer reasonably believes that the witness’s information will materially assist in the investigation; and the detention is necessary.” City of Kodiak v. Samaniego, 83 P.3d 1077, 1083 (Alaska 2004). Clarifying the “serious crime” requirement, the Alaska Supreme Court noted with approval language from the Model Code: “‘[t]he officer [must have] reasonable cause to believe that a misdemeanor or felony, involving danger or forcible injury to persons or of appropriation of or danger to property, has just been committed.’ ” Samaniego, 83 P.3d at 1083-84 (some alterations in original) (quoting Am. Law Inst., A Model Code of Pre-Arraignment Procedure § 110.0(l)(b) (1975)). If the officer has reasonable cause to believe that a witness has knowledge material to his investigation, he may take “such action [as] is reasonably necessary to obtain or verify the identification of [the witness].” Samaniego, 83 P.3d at 1084 (quoting Am. Law Inst., A Model Code of Pre-Arraignment Procedure § 110.0(l)(b)).

¶23 Here, the motorcyclist’s reckless driving posed a danger of injury to persons or property in the area. Therefore, Deputy Kendall’s actions were reasonable insofar as they were necessary to obtain or verify the identification of witnesses to the crime. Because the women were in an apparently mobile car, he risked losing them (and their possible evidence) if he did not make a show of force to convince them to stay where they were. In turning on his emergency lights and approaching the vehicle, he took reasonable actions in order to preserve evidence and question the witnesses.

¶24 However, once Deputy Kendall had the women’s names and birthdates, he had no further justification to hold them. His continued detention of Carney in order to run the records check constituted an unconstitutional seizure. Moreover, the connection between this illegal seizure and the consequent arrest and search was not sufficiently attenuated to clear the taint—in fact, the seizure directly and immediately resulted in Carney’s arrest. See State v. Ellwood, 52 Wn. App. 70, 74-75, 757 P.2d 547 (1988); cf. *208State v. Rothenberger, 73 Wn.2d 596, 600-01, 440 P.2d 184 (1968). I concur in the majority’s result.

While it was likely that Carney had information regarding the identity of a driver violating RCW 46.61.500 (reckless driving), I am not sure that there was evidence of all of the elements of RCW 46.61.024 (attempting to elude a police vehicle), as the dissent contends.