Warrantless Seizures and Race
The Washington State Supreme Court recently authored a decision which the legal community is continuing to digest called State v Sum.The case is centered around the issue of warrantless seizures and how the race of the seized person may control whether or not the exchange constitutes a constitutional violation or not.
To understand Sum, some legal search and seizure background is required.
THE LAW OF SEIZURES
Under the Fourth Amendment to the United States Constitution and Article I, section 7 of the Washington State Constitution, a police officer generally cannot seize a person without a warrant supported by probable cause. State v. Garvin, 166 Wn.2d 242, 249, 207 P.3d 1266 (2009). When analyzing police-citizen interactions, the Court must first determine whether a warrantless search or seizure has taken place, and if it has, whether the action was justified by an exception to the warrant requirement. State v. Rankin 151 Wn.2d 689, 695, 92 P.3d 202, 205 (2004).
Not every encounter between a police officer and a citizen is an intrusion requiring an objective justification. United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). However, a seizure occurs, under Article I, Section 7, when considering all the circumstances, an individual’s freedom of movement is restrained and the individual would not believe he or she is free to leave or decline a request due to an officer’s use of force or display of authority. Rankin at 205. This determination is made by objectively looking at the actions of the law enforcement officer. State v. Young, 135 Wash.2d 498, 501, 957 P.2d 681 (1998). Moreover, it is elementary that all investigatory detentions constitute a seizure. State v. Armenta, 134 Wn.2d 1, 10, 948 P.2d 1280 (1997). Whether an individual was seized turns not on the officer’s perceptions of what occurred but on the defendant’s reasonable evaluation of the situation. State v. Barnes, 96 Wn. App. 217, 223-24 (1999). Further, an officer “seizes the citizen not only when the citizen feels compelled to remain still but also when the citizen deems himself obliged to respond to the officer’s requests.” State v Carriero, 439 P.3d 679, 687 (2019). The officer’s subjective beliefs or intentions in this regard are immaterial unless communicated to the defendant. Barnes 223-34.
Applying this standard, Washington courts have found that permissive encounters “ripen into seizures when an officer commands the defendant to wait, retains valuable property, or blocks the defendant from leaving.” State v. Coyne, 99 Wn. App. 566, 573 (2000). Similarly, it has been said that “[w]here an officer commands a person to halt or demands information from the person, a seizure occurs” but “no seizure occurs where an officer approaches an individual in public and requests to talk…or requests identification, so long as the person involved need not answer and may walk away.” State v. O’Neill, 148 Wn.2d 564, 62 P.3d 489 (2003).
The FACTS of SUM
In April of 2019, Palla Sum – who is registered as Asian/Pacific Islander – was found sleeping in his car in the parking lot of a church with a passenger similarly asleep beside him. Investigating Pierce County Sheriff Deputy Mark Rickerson spotted Sum’s vehicle while on patrol and decided to investigate as the area had been designated a “problem spot” and there were vague complaints from people who supposedly lived in the neighborhood about cars parking where they didn’t belong. Five months prior a colleague of Deputy Rickerson had recovered a stolen vehicle in this same parking lot so Deputy Rickerson thought that perhaps the vehicle Mr. Sum was sleeping in might be stolen too.
Without waking Mr. Sum up, Deputy Rickerson ran his vehicle’s VIN number and the results showed it was not reported stolen, but the records also failed to show who the current owner of the vehicle was. So Deputy Rickerson elected to wake Mr. Sum and his passenger up, both of whom – it is implied from the Court’s record – appeared under the influence of something. Deputy Rickerson asked Mr. Sum what he was doing in the parking lot and he replied “waiting for a friend.” Deputy Rickerson then asked Mr. Sum who owned the car he was sitting in and Mr. Sum said it was not his but he knew the lawful owner and had permission to drive it. However, it appears he couldn’t give the full name of the vehicle owner. At that point Deputy Rickerson asked Mr. Sum for his identification and Mr. Sum inquired as to why he wanted it. The deputy responded that he wanted to see their ID because they were sitting in an area “known for stolen vehicles” – (one, five months prior) – and because Mr. Sum did not appear to know who the vehicle he was sitting in belonged to. At that point, Mr. Sum gave Deputy Rickerson a false name for who he was.
As Deputy Rickerson was returning to his vehicle to run the fake name, Mr. Sum made the poor choice of starting up the car and fleeing the scene. After a high-speed-chase and a crash, Mr. Sum was taken into custody. It turned out he was the legal owner of the car but in the process of searching him for eluding a pursuing police officer, an illegal pistol was found on his person.
In addition to the gun crime and eluding, Mr. Sum was charged with giving a false or misleading statement to a public servant. His defense attorney attempted to suppress the statement arguing that the officer had seized him when he demanded to know his name. The Pierce County Superior Court ruled that because Deputy Rickerson didn’t physically retain Mr. Sum’s identification, that he was not seized when asked to identify himself.
THE HOLDING OF SUM BY THE SUPREME COURT
This is where things get confusing. Objectively speaking Mr. Sum was seized when he was told by an officer that he wanted to know his name because he was suspected of being involved of possessing a stolen car. No reasonable person would believe they were free to go if an officer told them that. Thus the question should have shifted to the issue of whether or not the investigating officer had reasonable suspicion at that point to detain someone.
But on appeal, Mr. Sum argued that the Court had failed to consider his race – Asian/Pacific Islander – in the calculus of determining whether or not he had been seized and this is what the Court choose to fixate on. The Court declared
“Our precedent has always required that the seizure inquiry be made in light of the totality of the circumstances, and we have never stated that race and ethnicity cannot be relevant circumstances. However, we have not explicitly held that in interactions with law enforcement, race and ethnicity matter. We do so today. Furthermore, to ensure that all the circumstances of a law enforcement encounter are properly considered, including race and ethnicity, we take this opportunity to clarify the seizure inquiry as a matter of independent state law, taking guidance from GR 37.”
The Court went on to say “To aid courts in the application of this test, we now clarify that a person is seized for purposes of article I, section 7 if, based on the totality of the circumstances, an objective observer could conclude that the person was not free to leave, to refuse a request, or to otherwise terminate the encounter due to law enforcement’s display of authority or use of physical force. For purposes of this analysis, an objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in disproportionate police contacts, investigative seizures, and uses of force against Black, Indigenous, and other People of Color (BIPOC) in Washington.”
Justice Mary Yu, writing for a unanimous court, then went on to say many things which may be dicta or may be controlling authority, and which at times seemed contradictory. Among the things that were said which I found particularly interesting include:
1) A person’s race and ethnicity are relevant to the question of whether they were seized by law enforcement for the purposes of Article 1, section 7. But it is “one of many relevant factors” that must be considered in determining whether a seizure occurred.
2) “We express no opinion as to whether race and ethnicity might be relevant in determining whether a particular warrantless seizure was justified by reasonable suspicion or some other exception to the warrant requirement.”
3) “History is not a static factor in our analysis. Every decision of this court makes new history, in which we are constantly striving for better.”
4) “We do not disavow our precedent and we do not suggest that any particular case would have had a different outcome pursuant to the clarification we announce today.”
5) The Defendant need not establish a propensity in the area law enforcement for discrimination for his race to be considered a factor, nor must they demonstrate that there was an explicit statement or action perpetrated by the investigating officer that demonstrates actions were motivated by race.
6) “Statistical evidence and media reports may increase the weight that should be given to race or ethnicity in a particular seizure analysis, but the lack of such evidence does not make a person’s race or ethnicity irrelevant.”
7) “Thus [for us to hold] that a person’s race and ethnicity are irrelevant unless the person produces statistics showing a pattern of targeted police discrimination or violence would reinforce the same systemic inequalities that prevent such statistics from being reliably complied in the first instance.” (For the record, I would like the Court to show greater skepticism for statistic-based reports in the criminal justice system in general as they are extremely flawed regardless of race).
8) Even if the officer who commits the seizure is unaware of what the defendant’s race is, the defendant’s race must still be considered because the standard is not what the officer’s subjective intent is but rather an objective one. (Presumably then, the fact that an investigating officer is a racial minority themself would still require a defendant’s race to be considered in the seizure analysis because it is not the race of the officer that controls but the cultural impact law enforcement has had on BIPOC).
9) “Washington’s seizure test is intended to be “‘a purely objective one’” based on what a hypothetical “reasonable person” in the defendant’s position would have believed under the same circumstances. O’Neill, 148 Wn.2d at 574 (quoting Young, 135 Wn.2d at 501). However, without more specific guidance, the perspective of a “reasonable person” is measured from the perspective of the judicial decision-maker. Judicial officers are especially well situated to know their legal rights and may also be unusually likely to expect that their rights, if asserted, will be respected by law enforcement. This commonsense observation is not to suggest that judicial perspectives are unreasonable; we merely acknowledge that it is unrealistic to equate the perspective of a judicial officer with the perspective of a “reasonable person” in this context.”
Just how big a deal the Sum decision is remains to be seen. According to the Court, Washington is now the second state in America (after New Hampshire) to expressly declare that race is a factor in determining whether a defendant was seized, but in New Hampshire the court “may” consider the Defendant’s race whilst in Washington the court “must.” Yet it is implied by the Court that even though race was never officially a factor prior to Sum, it was never officially not a factor either in the Court’s calculus.
It was also never really explained how Mr. Sum’s race effected the Court’s determination that he specifically was unlawfully seized or how they would have interpreted this incident differently if the Mr. Sum had been White. The Court also noted that establishing discrimination against Mr. Sum’s demographic was difficult to do for a complex series of reasons including language barriers, systemic problems with data collection and an expansive term for what “Asian” people are that includes everyone from Native Hawaiians to people of Pakistani and Japanese descent which created misleading realities on the ground for the nuances of this demographic.
And of course, the eluding and firearm convictions were upheld (as an unlawful seizure is not a defense to attempting to elude a pursuing police officer).
Prior to Sum, there was something of an understanding that when a police officer “asks” for your ID, it is a social contact, not a seizure. If they “demand” or “retain” your ID, however, you are seized. This was/is, obviously, a problematic standard especially when the weight of the officer’s testimony often controls whether the Court believes there was a request vs a demand. Some attorneys now interpret Sum as saying that if a police officer asks a BIPOC what their name is or to show them their ID, then they are seized per this decision, but with a White defendant this may still be a “social contact.” This seems overly broad.
RCW 46.61.020 reads that “It is unlawful for any person while operating or in charge of any vehicle to refuse when requested by a police officer to give his or her name and address and the name and address of the owner of such vehicle….a violation of this section is a misdemeanor.” It isn’t disputed that when a police officer pulls your car over you are seized. The issue is what happens when you are already stopped, and parked, and the officer initiates contact you while in “charge” of a motor vehicle. If during that contact the officer asks/demands/requests you to give him your name, it is not a social contact because you are not legally free to decline (absent a fifth amendment issue). So regardless of Mr. Sum’s race, the Court’s decision should – and presumably would – have been the same.
So what has changed? Well, the Court has formally recognized that in interactions with law enforcement race and ethnicity matter and thus courts must consider the race and ethnicity of the seized person as part of its totality of the circumstances calculus when determining whether a reasonable person in the defendant’s position would feel they were free to leave. What that will mean in practice remains to be seen.
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