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Thursday, May 22, 2008

Hands Off Washington

posted by on May 22 at 17:38 PM

Originally posted at 1:52 p.m.

This just in: Police can’t frisk people just for being high and freaky.

In another nod to the Washington Constitution’s broad privacy protections, the state Supreme Court has thrown out the drug conviction of a man who was searched by police solely because of his weird behavior.

Thursday’s unanimous decision reinforces the rules for simple pat-downs under state law, which offers stronger safeguards against police searches than the U.S. Constitution.

Without a search warrant or probable cause to make an arrest, police in Washington may frisk someone for weapons only if an officer has reason to believe the person is armed and dangerous.

In reaching their decision the judges noted, “At most, the record shows that Setterstrom was under the influence; this is not a crime in itself….”

UPDATE: So, what will this ruling change? Doug Klunder, an attorney and director of the ACLU of Washington’s Privacy Project, says, “I think this means that officers will go back to doing fewer frisks. Over the years a number of officers and courts… have said that if you have suspicion to do a stop, we’re not going to ask about cause for a frisk.”

Will we see fewer wild-eyed guys getting patted down for drugs on Second Avenue? “We might see that less often, but we may not,” says Klunder. Although believing someone has drugs on their person or has committed a crime could be probable cause for arrest (and search), simply being high is not in itself a crime in Washington (and thus not probable cause for arrest and search), amazingly. “Now [officers] will only do the frisk when there’s a fear of danger,” he says. However, an officer’s perceived danger could hinge on the location of the stop. Klunder notes that judges said the suspect in this case wasn’t considered a threat, in part, because he wasn’t in a dangerous dark alley. Instead, he was sitting in an office of the Department of Health and Human Services, where strange-acting people on drugs are ordinary.

“It comes down to whether Second Avenue is more like a dark alley or more like a DSHS office,” says Klunder. “I’m sure we’ll see those cases come up.”

RSS icon Comments


I always thought being under the influence was technically citable?

Posted by Dougsf | May 22, 2008 1:56 PM

There is a reason it is called "drunk and disorderly" the status of being intoxicated has to be accompanied by an offensive action. It isn't constitutional to criminalize a status, possession can be criminal however.

Posted by vooodooo84 | May 22, 2008 2:23 PM

Ahhhh, makes sense.

Posted by Dougsf | May 22, 2008 3:06 PM

What about DWB?

Posted by Will in Seattle | May 22, 2008 3:52 PM

Let's just stop handcuffing police!

Posted by Bob | May 22, 2008 5:52 PM

Isn't being obviously high reason to believe you have drugs on your person hence probable cause for a search?

Posted by w7ngman | May 22, 2008 5:56 PM

doesn't the DSHS office make 2nd avenue even sketchier than a dark alley?

Posted by doink | May 22, 2008 7:57 PM

Whew, what a relief! For a while there I was worried the police might do something about the junkies and muggers on on Second.

Posted by Stinky | May 23, 2008 10:45 AM

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