No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.1
The Fourth Amendment of the U.S. Constitution is a bedrock in the Bill of Rights that was intended to fiercely guard an individual's private affairs and to provide protection from unwarranted government seizures such as the highly invasive searches made by British customs officials in England.
At its most basic level, the Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."2 Initially, this was interpreted to require probable cause of criminal activity, which exists when the "facts and circumstances within [an officer's] knowledge and of which they had reasonably trustworthy information sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed."3
Terry v. Ohio
In Terry, the Supreme Court broadened the circumstances under which police could stop an individual. It began to erode the requirement of probable cause in all circumstances by holding that a person could be "seized" for an investigatory stop with only "specific and articulable facts which, taken together with rational inferences from those facts" make an officer believe that his safety or the safety of others is in danger.4
The Terry stop and arrest occurred when an officer believed two African-American men were "casing" a store. When the officer approached the men, he turned Terry around, patted down the outside of his clothing and discovered a pistol.5
Terry asserted that the stop violated his right to be free from search or seizure without probable cause. The Court held that police may search someone for weapons upon a reasonable belief that the person is armed and dangerous, even in the absence of probable cause to arrest the person for a crime.6
The decision in Terry has evolved substantially from the factual holding. Today, a "Terry stop" is a well-known term that allows police officers to stop any individual so long as they have a reasonable and articulable suspicion of criminal activity.
Terry under Washington law
The scope and use of Terry stops in Washington is more limited because the Washington Constitution generally grants broader privacy protection than the Fourth Amendment,7 providing that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law."8
This provision is "explicitly broader" than the Fourth Amendment, according to the Washington Supreme Court, "as it clearly recognizes an individual's right to privacy with no express limitations" and places greater emphasis on privacy.9 Similar to the federal law on investigatory stops, the Washington courts have made clear that a Terry stop is justified only upon "articulable suspicion" that amounts to "a substantial possibility that criminal conduct has occurred or is about to occur."10
In State v. Duncan, the court found that while a Terry stop for a civil traffic infraction is permissible, the Washing-ton constitution forbids investigatory stops for other civil infractions where the officer has not witnessed the infraction.11
Washington law also varies with respect to pretextual stops. In Whren v. United States, the U.S. Supreme Court held that an officer need not have pure intentions to instigate a stop, so long as the stop is ultimately legally justified.12 The Washington Supreme Court explicitly rejected this expansion of Terry, holding that the state's broader privacy protections prevent police from using pretextual traffic stops in order to conduct a criminal investigation.13
Although the U.S. Supreme Court has found that race or ethnicity cannot be the sole factor in justifying a stop, it can be considered as a relevant factor.14 Washington courts have carved out a specific exception that "[r]acial incongruity, defined as a person of any race being allegedly Ôout of place' in a particular geographic area, is never a sufficient basis for forming a suspicion of criminal activity."15 Thus, race or ethnicity can be a factor in forming reasonable suspicion in Washington, but cannot be the sole reason justifying the stop.16
While the scope of both federal and state investigatory stops has been expanded considerably in the era since Terry, the Washington Constitution places stricter limitations on the use of a Terry stop within this state. As the courts have repeatedly found, the Washington Constitution provides greater privacy protection than the Fourth Amendment of the United States Constitution. n
Jaime Drozd Allen is an associate in the Litigation Department at Ogden Murphy Wallace P.L.L.C. She can be reached at jallen@omwlaw.com.
1 Union Pac. R.R. Co. v. Botsford, 141 U.S. 250 (1891).
2 U.S. Const. Am. 4.
3 Brinnegar v. United States, 338 U.S. 160, 175-76 (1949).
4 Terry v. Ohio, 392 U.S. 1, 21 (1968).
5 Id. at 5.
6 Id. at 27.
7 State v. Duncan, 146 Wn.2d 166, 177, 43 P.3d 513 (2002).
8 Wash. Const. Art. I, ¤ 7.
9 State v. Ladson, 138 Wn.2d 343, 348-49, 979 P.2d 833 (1999).
10 State v. Kennedy, 107 Wn.2d 1, 6, 726 P.2d 445 (1986).
11 See generally Duncan, 146 Wn.2d 166.
12 517 U.S. 806, 812 (1996).
13 Ladson, 138 Wn.2d at 358.
14 United States v. Brigoni-Ponce, 422 U.S. 873, 886-87 (1975).
15 State v. Gleason, 70 Wn. App. 13, 17, 851 P.2d 731 (1993) (overruled on other grounds); State v. Barber, 118 Wn.2d 335, 823 P.2d 1068 (1992).
16 Barber, 118 Wn.2d at 347-48.
