State v. Simpson

Horowitz, J.

(dissenting) — I must dissent. As the majority acknowledges, after the United States Supreme Court's *196recent decision in United States v. Salvucci, 448 U.S. 83, 65 L. Ed. 2d 619, 100 S. Ct. 2547 (1980), the defendant does not have automatic standing to complain under the federal constitution of the search of a vehicle that he possessed knowing it to he stolen. Salvucci struck down the automatic standing rule that allowed a defendant to assert the Fourth Amendment rights of the true owner when the defendant was charged with possession of an item allegedly illegally searched or seized. Salvucci's holding should end the inquiry into the violation of Fourth Amendment rights alleged by the defendant Simpson in this case. For the reasons stated belpw, I cannpt agree with the majority's unwarranted extension of our state constitutional provisions to preclude use of evidence arising from the police search against the defendant.

Article 1, section 7 of the Washington Constitution affords defendants protection identical to that of the federal Fourth Amendment. In the past, this court has always interpreted the federal and state search and seizure requirements identically. For instance, only 3 years ago in State v. Smith, 88 Wn.2d 127, 133, 559 P.2d 970 (1977), we stated:

It is apparent that the fourth amendment to the United States Constitution and article 1, section 7 of the Washington State Constitution are comparable and are to be given comparable constitutional interpretation and effect. Accordingly, in this opinion, reference will be made only to the Fourth Amendment.

State v. Michaels, 60 Wn.2d 638, 374 P.2d 989 (1962), in which this court first acknowledged the doctrine of automatic standing, relies solely on the federal constitutional analysis of Jones v. United States, 362 U.S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725, 78 A.L.R.2d 233 (1960). There can be no question that the original justification and support for the automatic standing rule in this state was in its original promulgation by the United States Supreme Court as a matter of federal Fourth Amendment law.

*197In this case, for the first time, however, the majority suggests that differences between the federal Fourth Amendment and article 1, section 7 of the Washington Constitution compel a break from federal analysis.10 The majority first recites the language of the respective constitutional sections, noting that the state constitutional framers must have intended a provision that "varied" from the existing federal Fourth Amendment because they chose different language. The majority does not explain why this state provision was subjected to interpretation identical to that given the Fourth Amendment during the first 91 years of its existence in our state constitution. Instead, the majority moves on to explain its "continuing policy basis" for automatic standing. As will be demonstrated below, this justification is analytically faulty and has nothing to do with any actual differences between the Fourth Amendment and Const, art. 1, § 7.

The majority states that it retains the automatic standing rule because the self-incrimination dilemma that originally formed part of the justification for the doctrine in Jones still remains. I cannot agree. In Jones, the United States Supreme Court adopted automatic standing in part because at that time, the defendant's testimony at the suppression hearing that he was in possession could be used as substantive evidence to prove the crime of possession at trial. The defendant could not be forced to incriminate himself, to offer evidence of the crime with which he was charged, in order to assert Fourth Amendment protection, and so the automatic standing doctrine was developed. In Simmons v. United States, 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968), however, this self-incrimination *198dilemma was eliminated. The defendant's admission at the suppression hearing that he had possession can no longer be used for the substantive purpose of establishing an element of the crime. This justification for the automatic standing rule, relied on by the majority, thus no longer exists.

The peripheral question of whether or not the defendant's admission can be used to impeach his testimony at trial is irrelevant to the reasoning undertaken in Jones that was eliminated by Simmons. The impeachment issue has no place in the decision to extend or abandon the automatic standing rule. As noted by the United States Supreme Court in Salvucci:

Principally, respondents assert that the prosecutor may still be permitted to use the defendant's testimony to impeach him at trial. This Court has not decided whether Simmons precludes the use of a defendant's testimony at a suppression hearing to impeach his testimony at trial. But the issue presented here is quite different from the one of whether "use immunity" extends only through the Government's case-in-chief, or beyond that to the direct and cross-examination of defendant in the event he chooses to take the stand. That issue need not be and is not resolved here, for it is an issue which more aptly relates to the proper breadth of the Simmons privilege, and not to the need for retaining automatic standing.

(Footnotes omitted. Italics mine.) United States v. Sal-vucci, supra at 93-94. The automatic standing doctrine was never intended as a "license to lie" for the defendant; it was not developed to allow the defendant to perjure himself without sanction or consequence. Jones contains no discussion of the impeachment problem, as the majority in this case itself acknowledges:

The principle was established to ensure in addition that a defendant claiming possession in order to acquire standing in the suppression hearing would not have this evidence used against him at trial on the issue of possession.

(Italics mine.) Majority opinion, at 175-76. The challenge to the veracity of the defendant as a witness is a procedural *199matter which is irrelevant to the establishment of his substantive Fourth Amendment rights under the automatic standing doctrine.

The majority attempts to rely on analysis which has never formed a justification for the doctrine as a matter of federal law under Jones or state law under Michaels in order to uphold the rule of automatic standing after its federal rejection in Saluucci. Its belated attempt to include the possibility of impeachment as a reason for the doctrine is unpersuasive. Not only is it analytically faulty, but the attempt rests on mere speculation that the defendant Simpson would testify at his suppression hearing and at his trial, and further that his testimony would be contradictory.

I am not suggesting that our state constitution should never be given an interpretation different from that afforded the federal constitution. But I must strenuously object to differing analysis which appears to be based solely on the state court's unhappiness with the result reached by the United States Supreme Court:

Even respected state courts occasionally have exercised their right to independent interpretation in a result-oriented way that undermines confidence in the judiciary and aggravates the uncertainties inherent in constitutional litigation. Because of this preoccupation with results, neither side has confronted adequately the problem of how independent interpretation should be employed. Advocates of independent interpretation, for example, simply insist on the state courts' undeniable right to interpret their own constitutions without interference from the Supreme Court. As a result, the opinions that purportedly interpret the state constitution often give scant attention to the provisions themselves or why those provisions require a result different from that reached by the United States Supreme Court.

(Footnotes omitted.) Note, The New Federalism: Toward a Principled Interpretation of the State Constitution, 29 Stan. L. Rev. 297, 300 (1977). If we are to interpret our state constitution in a manner inconsistent with the United *200States Supreme Court's interpretation of the federal constitution, we must do so on the basis of principles, not results. An examination of relevant criteria11 will demonstrate why independent establishment of the automatic standing rule under our state constitution in this case is inappropriate.

First, the differences between the federal and state constitutions must be considered, with the emphasis being on independent interpretations mandated by the language of the state provision. The majority's error in relying on impeachment as justification for the automatic standing rule is compounded by the fact that the basis for its decision to break from this court's adherence with the United States Supreme Court's establishment of the parameters of constitutional protections against unreasonable searches and seizures is wholly unconnected with any actual differences in the language of the Fourth Amendment and Const, art. 1, § 7. Nothing in our state constitution suggests that concern over the "dilemma of self-incrimination," that the majority now perceives in the possibility of impeachment, is better expressed or more overtly important in our state constitution than in the concomitant federal provisions. In the past, this court has gone beyond the United States Supreme Court's constitutional interpretation only when the provisions of our constitution itself suggest that the additional protection of individual rights was contemplated. See, e.g., Darrin v. Gould, 85 Wn.2d 859, 540 P.2d 882 (1975) (construing amendment to state constitution explicitly concerning sex discrimination). The language of Const, art. 1, § 7 does not in itself suggest the justification for the automatic standing rule relied on by the majority in this case.

*201Second, we should look for state precedents which justify a result differing from the United States Supreme Court's. In this case, State v. Michaels, supra, arguably provides independent justification for the automatic standing rule. But Michaels itself relies solely on Jones, a federal case that was expressly overruled by Salvucci. The precedential value of Michaels thus must be lessened. Michaels reflects concerns that were largely alleviated in the later case of Simmons v. United States, supra. We must consider Michaels' continuing importance in light of the growth and change in related areas of constitutional doctrine.

Third, the existence of unique local conditions might prompt the state court to independently interpret its state constitution. There is no suggestion in this case that any such peculiarities of this state compel us to interpret our constitution differently from the Fourth Amendment. Indeed, the fact that this case deals with the exclusionary rule, which has as its purpose influencing police conduct, operates in favor of uniformity:

The very purpose of the exclusionary rule, to deter unlawful police searches . . . requires that there be certainty in the ground rules of search and seizure. The more courts feel free to adopt ground rules unpersuaded by contrary decisions of other courts, the greater the likelihood there is of uncertainty in those ground rules.

People v. Norman, 14 Cal. 3d 929, 941, 538 P.2d 237, 246, 123 Cal. Rptr. 109 (1975) (Clark, J., dissenting).

Finally, we must consider the position on this issue taken by the United States Supreme Court. The Supreme Court has definitively and persuasively spoken on this issue only weeks ago in the case of United States v. Salvucci, 448 U.S. 83, 65 L. Ed. 2d 619, 100 S. Ct. 2547 (1980). Nothing distinguishes Salvucci factually from the case before us here. The majority's decision to embrace independent state grounds to obtain a result so recently rejected by the United States Supreme Court is unfortunate, for no compelling justification for the split with federal precedent has been or can be given. This is the type of decision making *202that has quite justifiably "resulted in charges that state courts are evading Supreme Court doctrine and engaging in unprincipled, result-oriented use of their state constitutions." Note, Principled Interpretation, supra at 297.

The majority has created a dangerous precedent. It has opened the door to independent interpretation of article 1, section 7 of our state constitution without providing any guidelines for the use of this new tool of constitutional analysis. It has made the task of the lower courts in this state more difficult by providing them no method of predicting when this court may place a different gloss on an area of constitutional law that is already difficult for the legal profession, much less the police that must abide by our rules of conduct, to understand or follow. The benefits the majority may hope to achieve through adoption of this sort of constitutional analysis cannot possibly be worth the uncertainty and confusion its actions must cause.

I would reject the defendant's claim that he has automatic standing to challenge the police' actions in this case. Although I also have strong reason to object to the majority's holdings that police examination of the VIN and use of the car key was unlawful, I will not further consider these issues in view of my conclusion that the defendant has failed to show any right to raise these questions.12 I therefore dissent on the basis that the automatic standing rule *203has no place in our law after the United States Supreme Court's decision in United States v. Salvucci, supra.

Dolliver, J., and Cochran, J. Pro Tem., concur with Horowitz, J.

State v. Hehman, 90 Wn.2d 45, 578 P.2d 527 (1978), which the majority cites as precedent for broader interpretation of our state constitution, does not rely on article 1, section 7 for its analysis and conclusion. Hehman merely states that "[decisions of the United States Supreme Court. . , do not limit the right of state courts to accord to defendants greater rights", Hehman, supra at 49, and on that basis held that "a custodial arrest is not proper for a minor traffic violation." (Italics mine.) Hehman, supra at 50.

These four criteria are set forth after an analysis of California cases considering independent interpretation of the California constitution in Note, The New Federalism: Toward a Principled Interpretation of the State Constitution, 29 Stan. L. Rev. 297, 318-19 (1977).

I would note, however, that the concurring opinion's position that the seizure of the truck's key from the police property box violated the Fourth Amendment is contrary to the holdings of most courts that considered an arrestee's expectation of privacy in a police property box and in the VIN of his vehicle. Viewing of the VIN through any reasonable means is not a search subject to Fourth Amendment probable cause requirements; there can be no expectation of privacy in the vehicle identification number. See United States v. Ware, 457 F.2d 828, 829 (7th Cir. 1972); United States v. Powers, 439 F.2d 373, 375 (4th Cir. 1971); United States v. Polk, 433 F.2d 644, 647 (5th Cir. 1970); Cotton v. United States, 371 F.2d 385 (9th Cir. 1967). In addition, the vast majority of courts hold that review of the defendant's personal effects after arrest and booking does not violate the Fourth Amendment. See, e.g., United States v. Edwards, 415 U.S. 800, 39 L. Ed. 2d 771, 94 S. Ct. 1234 (1974); United States v. Lacey, 530 F.2d 821 (8th Cir. 1976); United States v. Jenkins, 496 F.2d 57 (2d Cir. 1974).