WA: State search incident power narrower than Fourth Amendment

Washington holds that its state constitutional search incident power is narrower than the Fourth Amendment. State v. Moore, 161 Wn.2d 880, 169 P.3d 469 (Wash. 2007):

¶7 Search Incident to Arrest. The Washington Constitution mandates that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Wash. Const. art. I, § 7. In contrast to the Fourth Amendment to the United States Constitution, the article I, section 7 provision “recognizes a person’s right to privacy with no express limitations.” O’Neill, 148 Wn.2d at 584. A warrantless search is per se unreasonable unless it falls within one of the few narrowly drawn exceptions. State v. Parker, 139 Wn.2d 486, 496, 987 P.2d 73 (1999).

¶8 “[T]he search incident to arrest exception to the warrant requirement is narrower” under article I, section 7 than under the Fourth Amendment. O’Neill, 148 Wn.2d at 584. Under the Washington Constitution, a lawful custodial arrest is a constitutional prerequisite to any search incident to arrest. Id. at 587. The lawfulness of an arrest stands on the determination of whether probable cause supports the arrest. State v. Potter, 156 Wn.2d 835, 840, 132 P.3d 1089 (2006). Probable cause exists when the arresting officer has “knowledge of facts sufficient to cause a reasonable [officer] to believe that an offense has been committed” at the time of the arrest. Id.

¶9 In the instant case, officers searched Moore without a warrant, incident to his arrest for having a dangerous dog outside of an enclosure and for refusal to give information/cooperate with an officer. The State does not challenge the trial court’s finding that probable cause does not support either of these bases for Moore’s arrest. The State nonetheless argues that Officer French had additional probable cause to support an arrest of Moore for violating former RCW 46.61.021(3), which provides in pertinent part that “[a]ny person requested to identify himself or herself to a law enforcement officer pursuant to an investigation of a traffic infraction has a duty to identify himself or herself.” (Emphasis added.)

¶10 The record does not support the State’s argument that Officer French conducted an “investigation” of the seatbelt violation. The crime of failing to correctly identify one’s self under RCW 46.61.021(3) requires more than the mere observation of a traffic infraction and an unrelated request for identification. Rather, the officer must ask the individual for identification pursuant to an investigation of a traffic infraction. Officer French did not cite any passengers for the seatbelt violation and only mentioned her observation that the passengers were not wearing seatbelts in a supplemental report. Officer French also clarified at a subsequent hearing that she did not ask Moore for his name pursuant to an investigation of the seatbelt infraction. RP (Apr. 9, 2004) at 41, 45-46. Based on the objective fact that Officer French was not investigating the seatbelt infraction, a reasonable officer would not have concluded that Moore violated former RCW 46.61.021(3) by failing to correctly identify himself pursuant to an investigation of a traffic infraction. Accordingly, we conclude that probable cause does not support Moore’s arrest.