State v. Fields

Rosellini, J.

(dissenting) — The majority concedes that CrR 2.3(b) has extended the authority of the courts to issue search warrants beyond that which was previously *131 granted by statute. In promulgating this rule, the court, in my opinion, has exceeded its constitutional powers. Whether the right to privacy be regarded as substantive or procedural, I do not think that the people intended that laws permitting governmental invasion of one’s home should be established by court rule.

Const. art. 1, § 7 (not quoted in the majority opinion) provides:

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

What did the people mean when they used the phrase “authority of law”? Did they have reference to rules adopted by judges for the expedition of the court’s business, or were they thinking of acts of the legislature, enacted in response to the will of the people? I cannot doubt that they had in mind the latter.

Wherever one finds the term “law” used in the state constitution, it is with reference to laws passed by the legislature. See Const. art. 1, §§ 8, 12, 23 and 34. See also Const. art. 1, § 25, providing that prosecutions shall be by information or indictment, as prescribed by law. Article 2 established the legislature as the lawmaking body of the state, the right of initiative and referendum being reserved to the people. Section 18 provides:

The style of the laws of the state shall be: “Be it enacted by the Legislature of the State of Washington.” And no laws shall be enacted except by bill.

Article 4, establishing the judiciary, does not confer upon it the power to make laws, but only the power to adjudicate cases. No mention of the rulemaking power of this court can be found in the constitution. With these facts in mind, how can it reasonably be concluded that the people have conferred upon the court the power to make the laws governing the issuance of search warrants?

The right to be secure in one’s private affairs, and in his home, is an essential of a free society. It is not surprising, therefore, that the framers of the constitution, in recogniz *132 ing the necessity for the invasion of that privacy under certain circumstances, declared that the conditions under which such invasions should take place should be prescribed by law. Laws passed by the legislature are presumably enacted in response to the will of the people. If they are oppressive, the people can demand their repeal. They can exercise the powers of initiative and referendum. But if they are dissatisfied with a rule of court, what recourse have they? None, as I understand the majority opinion, as it deems it to be the inherent power of the court, and the legislature and citizens are powerless to change the rule. True, they can ask the legislature to take away the court’s power to make a rule with regard to search and seizure, but such a remote remedy seems hardly adequate to protect a right deemed by the people to be so precious as the right of privacy.

As the majority has indicated in its opinion, abuse of the power of search and seizure has been one of the most useful instruments of oppression in the hands of despots. If the warrant can be obtained to search for evidence of any misdemeanor, no matter how trivial, it invites abuse by unprincipled persons in positions of power. There are literally thousands of state laws, county and city ordinances, all of which are misdemeanors and declared to be criminal. The legislature, in enacting statutes authorizing the issuance of the warrant, was careful to limit its use to instances of serious crime. This legislative action was no doubt responsive to the will of the constituents. The court, on the other hand, has made a rule so broad that it authorizes the invasion of a man’s home for the most insignificant offense. This is understandable, since the court does not have the range of viewpoint and commitment which can be found in the legislature, nor does it have the time to study, the problem of where the line should be drawn. It should not be surprising that it has avoided the problem by drawing no line at all.

But whether it is wiser and better that the legislature should make judgments of this kind, or that the court *133 should make them is not a matter which concerns us, except to the extent that it may throw some light upon the intent of the framers of the constitution. In this instance, it does supply a sound reason for the intent expressed in article 1, section 7, that the conditions under which the privacy of the individual could be invaded should be prescribed by legislative enactment.

This ground alone is sufficient to sustain the judgment. I would affirm.

Petition for rehearing denied March 13,1975.