{"id":1440,"date":"2008-01-03T14:28:36","date_gmt":"2007-10-15T06:05:19","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2007-10-15T06:05:19","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1440","title":{"rendered":"WA: Terry<\/em> stop cannot be conducted from a parking infraction"},"content":{"rendered":"

A Terry stop for a parking infraction is not justified under the Washington Constitution. State v. Day<\/a>, 161 Wn.2d 889, 168 P.3d 1265 (2007):<\/p>\n

\u00b610 A Terry<\/em> investigative stop only authorizes police officers to briefly detain a person for questioning without grounds for arrest if they reasonably suspect, based on \u201cspecific, objective facts\u201d that the person detained is engaged in criminal activity or a traffic violation. Duncan<\/em>, 146 Wn.2d at 172-74 (citing Terry v. Ohio<\/em><\/a>, 392 U.S. 1, 21, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The Terry investigative stop exception was first adopted under the Fourth Amendment to the United States Constitution, which forbids \u201cunreasonable\u201d searches and seizures, implicitly recognizing the State’s police power to conduct \u201creasonable\u201d ones. Terry<\/em>, 392 U.S. at 20; Johnson<\/em>, supra, at 598. It was later (largely) accepted as an exception under article I, section 7 of the Washington Constitution. State v. Hobart<\/em>, 94 Wn.2d 437, 441, 617 P.2d 429 (1980); State v. Lesnick<\/em>, 84 Wn.2d 940, 942-43, 530 P.2d 243 (1975).<\/p>\n

\u00b611 Article I, section 7, does not use the words \u201creasonable\u201d or \u201cunreasonable.\u201d Instead, it requires \u201cauthority of law\u201d before the State may pry into the private affairs of individuals. Const. art. I, \u00a7 7. Washington’s adoption of the Terry investigative stop exception is grounded upon the expectation of privacy. Our constitution protects legitimate expectations of privacy, \u201cthose privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.\u201d Myrick<\/em>, 102 Wn.2d at 511. Whether the Fourth Amendment or article I, section 7 of the Washington Constitution is in issue, a detaining officer must have \u201ca reasonable, articulable suspicion, based on specific objective facts, that the person seized has committed or is about to commit a crime.\u201d Duncan<\/em>, 146 Wn.2d at 172 (citing Terry<\/em>, 392 U.S. at 21). Under the Fourth Amendment, whether the officer had grounds for a Terry stop and search is tested against an objective standard. Johnson<\/em>, supra, at 598. See also Whren v. United States<\/em>, 517 U.S. 806, 813-16, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996) (pretextual traffic stops do not violate the Fourth Amendment). By contrast, under article I, section 7, we consider the totality of the circumstances, including the officer’s subjective belief. See State v. Ladson<\/em>, 138 Wn.2d 343, 358-59, 979 P.2d 833 (1999); Kennedy<\/em>, 107 Wn.2d at 6. Our constitution does not tolerate pretextual stops. Ladson<\/em>, 138 Wn.2d at 352.<\/p>\n

\u00b612 Terry<\/em> has also been extended to traffic infractions, \u201cdue to the law enforcement exigency created by the ready mobility of vehicles and governmental interests in ensuring safe travel, as evidenced in the broad regulation of most forms of transportation.\u201d State v. Johnson<\/em>, 128 Wn.2d 431, 454, 909 P.2d 293 (1996) (footnote omitted)(citing United States v. Ross<\/em>, 456 U.S. 798, 806-07, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982)). However, we see no reason to extend it even further to parking infractions. The reasons underlying extending Terry<\/em> to traffic violations simply lose force in the parking context.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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