State v. Simpson

Utter, C.J.

(concurring) — Our prior cases indicate that we will rely on the provisions of our state constitution, rather than their counterparts in the federal constitution, only to provide additional protection to citizens of this state. See, e.g., State v. Hehman, 90 Wn.2d 45 , 578 P.2d 527 (1978); Darrin v. Gould, 85 Wn.2d 859 , 540 P.2d 882 (1975); Carter v. University of Wash., 85 Wn.2d 391 , 536 P.2d 618 (1975). Because the evidence in this case is suppressible by reason of the Fourth Amendment, the majority unnecessarily applies Washington Const, art. 1, § 7.

The Fourth Amendment bars the police, once the booking search and seizure is completed, from invading a police property box without probable cause. 8 People v. Smith, 103 *193 Cal. App. 3d 840 , 163 Cal. Rptr. 322 (1980); State v. Harrington, 284 N.W.2d 244 (Iowa 1979); People v. Trudeau, 385 Mich. 276 , 187 N.W.2d 890 (1971). Although arrestees have no privacy interest which can prevent a booking seizure of their personal effects, they do have a residual privacy interest in not having those belongings randomly and continuously searched during the entire period of incarceration. People v. Smith, 163 Cal. Rptr. at 325; Farrie v. State, 255 Ind. 681 , 266 N.E.2d 212 (1971) (dissent).

The United States Supreme Court has consistently recognized the distinction between one's privacy interest in not having goods seized and in not having them searched, once seized. See, e.g., Arkansas v. Sanders, 442 U.S. 753 , 61 L. Ed. 2d 235 , 99 S. Ct. 2586 (1979). United States v. Chadwick, 433 U.S. 1 , 53 L. Ed. 2d 538 , 97 S. Ct. 2476 (1977). We, too, have recently acknowledged that distinction. In State v. Houser, 95 Wn.2d 143, 622 P.2d 1218 (1980), we held that the legal seizure of a toiletry bag does not automatically allow for a search of its contents.

Respondent's Fourth Amendment rights as to his effects in the property box did not vanish simply because they were handled by the police. People v. Smith, supra; Farrie v. State, supra (dissent). A citizen does not permanently lose his or her expectation of privacy in an area or goods simply because at some prior time it was legally exposed to the authorities. See Michigan v. Tyler, 436 U.S. 499 , 56 L. Ed. 2d 486 , 98 S. Ct. 1942 (1978) (even though firemen have *194 been legally within a house, their subsequent entries may require a warrant); United States v. Hoffman, 607 F.2d 280 (9th Cir. 1979).

Nor does the fact that respondent has no protected privacy interest in the key, see United States v. Salvucci, 448 U.S. 83 , 65 L. Ed. 2d 619 , 100 S. Ct. 2547 (1980), mean that he completely lacks standing to challenge the manner in which it was seized and used. Salvucci stated that if the respondents in that case could prove that they had a legitimate expectation of privacy in the areas in which the stolen goods were seized, then the evidence derived from the seizure of those goods would be suppressible. Salvucci, 448 U.S. at 95 , 65 L. Ed. 2d at 630 . The property box is one such area in which arrestees do have a protected privacy interest, People v. Smith, supra, and thus its contents cannot be removed without probable cause. 9 See People v. Smith, supra; United States v. Edwards, 415 U.S. 800 , 39 L. Ed. 2d 771 , 94 S. Ct. 1234 (1974); cf. Reeves v. State, 599 P.2d 727 (Alaska 1979) (relying on Alaska's constitution).

Besides protecting a legitimate expectation of privacy, imposing the probable cause requirement on property box searches has several salutary effects. To permit a detailed postbooking search through the arrestee's effects to see if he or she can be linked with some other offense would bestow upon the police an undeserved windfall. 2 W. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 11.3, at 320 (1978). It would also provide the police with a temptation to make subterfuge arrests. As *195 stated by the dissenting judge in Farrie v. State, supra at 687:

I cannot accept an interpretation of the Fourth Amendment which would permit the police to search an arrestee, let us say arrested and in the process of being incarcerated for a minor traffic offense, and seize the contents of his pockets, briefcase and car for safekeeping purposes, and then to use these items in a general investigation for evidence of criminal conduct unrelated to the offense for which the person was arrested.

Finally, delayed searches without probable cause may constitute a denial of equal protection, as such a search can occur only as to defendants who do not have the financial means to obtain their release on bail. Cf. Brenneman v. Madigan, 343 F. Supp. 128 (N.D. Cal. 1972); Mackell v. Palermo, 59 Misc. 2d 760 , 300 N.Y.S.2d 459 (1969).

This case is particularly appropriate for application of the rule, for all of the above elements are present. The police were able to seize the VIN evidence because respondent was incarcerated on an unrelated charge. Their removal of the key permitted them to conduct an exploratory search for the VIN upon the mere hunch that the vehicle was stolen and under the pretext of impoundment. Also, the removal of the key did not further the justification for permitting them initially to take it from respondent. If anything, their actions increased the likelihood that the key would be lost.

When the rule is applied to the present case, it appears that respondent's Fourth Amendment rights were violated. The police lacked probable cause to believe that the key was evidence of a crime. Therefore, the search of respondent's property box to obtain the key violated the Fourth Amendment. As a consequence of that violation, the VIN evidence should have been suppressed. See Wong Sun v. United States, 371 U.S. 471 , 9 L. Ed. 2d 441 , 83 S. Ct. 407 (1963).

Some courts have concluded otherwise. See, e.g., United States v. Jenkins, 496 F.2d 57 (2d Cir.), cert. denied, 420 U.S. 925 , 43 L. Ed. 2d 394 , 95 S. Ct. 1119 (1975); United States v. Smith, 340 F. Supp. 1023 (D. Conn. 1972). However, in many of those cases there was probable cause for the search and, more importantly, the seized items were on their face evidence of a crime. See, e.g., United States v. Jenkins, supra; United States v. Smith, supra. This is important, for the rationale of those cases is that since the police already saw the items, a second look did not create any greater intrusion into the suspect's privacy. But that rationale fails when, as in this case, the seizure from the box requires additional searching and further intrusions into the suspect's privacy before the evidentiary value of the seized item is determined. See Smith, at 1027.

Furthermore, dicta in United States v. Edwards, 415 U.S. 800 , 39 L. Ed. 2d 771 , 94 S. Ct. 1234 (1974), indicate that probable cause remains a condition precedent for postbooking searches of an arrestee's personal effects. In Edwards , the United States Supreme Court upheld a warrantless search and seizure of the clothes worn by an incarcerated suspect. It, however, cautioned:

Holding the Warrant Clause inapplicable in the circumstances present here does not leave law enforcement officials subject to no restraints. This type of *193 police conduct "must [still] be tested by the Fourth Amendment's general proscription against unreasonable searches and seizures." Terry v. Ohio, 392 U. S. 1, 20 [ 20 L. Ed. 2d 889 , 88 S. Ct. 1868 ] (1968). But the Court of Appeals here conceded that probable cause existed for the search and seizure of respondent's clothing, and respondent complains only that a warrant should have been secured.

Edwards , at 808 n.9. More specifically, the court stated:

When it became apparent that the articles of clothing were evidence of the crime for which Edwards was being held, the police were entitled to take, examine, and preserve them for use as evidence, just as they are normally permitted to seize evidence of crime when it is lawfully encountered.

(Italics mine.) Edwards , at 806.

The seizure of the key from respondent's property box cannot be justified by the rationale which allowed the police initially to remove the key from respondent. There are two justifications for permitting booking searches to be conducted without probable cause or a warrant. See Reeves v. State, 599 P.2d 727, 735 (Alaska 1979). The first is the institutional interest in prohibiting the introduction of weapons, illegal drugs, and other contraband into the jail environment. The second is the protection of the arrestee's property and the jail administration from claims that such property was lost or damaged while under its control. Neither of these justifications is served by a police intrusion into a properly inventoried property box. See Reeves v. State, supra; State v. Kaluna, 55 Haw. 361 , 520 P.2d 51 (1974).