Is Passenger Search Incident to Driver’s Arrest Unlawful in Washington?

By Henry W. Wiggins, III; Jan 2000

     A search incident to the driver’s arrest does not automatically extend to the “private affairs” of passengers who are not under arrest, including personal belongings and possessions police know or should know belong to individuals not under arrest, a majority of the Supreme Court of Washington held November 4 in three consolidated cases.  The court decided the cases under the Washington State Constitution.  State v. Parker, #66147-II etc.  Johnson, J., 11/4/99.

     Article I, Section 7 of the Washington State Constitution provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.”  As has been established in prior case law the court held that Article I, Section 7 differs from the Fourth Amendment to the United States Constitution in that it “clearly recognizes an individual’s right to privacy with no express limitations.”  The court has long held that the right to be free from unreasonable governmental intrusions into a person’s “private affairs” encompasses automobiles and their contents.  See, e.g. State v. Mendez, 137 Wn.2d 208, 970 P.2d 722 (1999); State v. Gibbons, 118 Wash. 171, 203 P. 390 (1922).

     In Mendez, the court rejected a proposition that the authority to order a driver to remain in or exit a vehicle to insure officer safety following a traffic stop automatically extended to passengers. The court held that officers must “articulate an objective rationale” to support their actions with regard to a passenger in order to prevent “groundless police intrusions on passenger privacy.”

     The State, in Parker, submitted that the warrantless searches at issue fell within the search incident to arrest exception of State v. Stroud, 106 Wn.2d 144, 720 P.2d 436 (1986).  Pursuant to Stroud, officers may lawfully search a vehicle passenger compartment incident to the arrest of the driver and, may assume all containers in the vehicle are likewise subject to search.  Thus, here the State argued that when the police arrest a driver, the personal possessions of a passenger are merely “containers” within the vehicle, and are legitimately subject to search whether or not they belong to the arrested individual.

     The court disagreed.  “Merely associating with the persons suspected of criminal activity does not strip away individual constitutional protections,” it said.

     The court expressly adopted the test created by the Wyoming Supreme Court in Houghton v. State, 956 P.2d 363, (Wyoming 1998), reversed 526 U.S. 295 (1999) and rejected by the U.S. Supreme Court last term.  

     “The word `automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears,” the court said, quoting Coolidge v. New Hampshire, 403 U.S. 443, 461-62 (1971). “Nor do the heightened protections of Article I, Section 7 fade away or disappear within the confines of an automobile.”

     Therefore, the court concluded, under Stroud, an officer may assume that all containers in the passenger compartment of a vehicle are subject to search incident to arrest of the driver.

     “If, however, officers know or should know certain containers within the vehicle belong to non-arrested occupants, such containers may not be searched absent an independent, objective basis to believe the containers hold a weapon or evidence,” the court said.