67 Wn. App. 41, 834 P.2d 73, SEATTLE v. YEAGER

Aug. 1992

[No. 26034-1-I. Division One. August 17, 1992.]

SEATTLE v. YEAGER
THE CITY OF SEATTLE, Respondent, v. KENNETH E. YEAGER, Petitioner.

[1] Automobiles Operator's License Suspension Special Vehicle Tab Validity of Stop Standing To Challenge Scope. The scope of a defendant's constitutional challenge to RCW 46.16.710-.760, which require that a special tab be affixed to the license plates of vehicles owned by operators whose driving privileges have been suspended and which authorize police officers to stop such vehicles at any time to determine if they are being driven by licensed drivers, is limited to the statute as applied to the defendant's conduct, not to its facial validity.

[2] Constitutional Law Construction State and Federal Provisions Priority of Consideration. An appellate court will independently interpret and apply the state constitution before examining the federal constitution when a violation of rights under both constitutions is alleged.

[3] Constitutional Law Construction State and Federal Provisions Independent State Interpretation Factors Necessity. An analysis under State v. Gunwall, 106 Wn.2d 54 must be performed in determining if a provision of the state constitution provides greater protection in a given situation than does its federal constitutional counterpart.

[4] Constitutional Law Construction State and Federal Provisions Independent State Interpretation Preservation for Review. The issue of whether or not the state constitution provides grounds for relief independent of the federal constitution may be raised for the first time on appeal.

[5] Constitutional Law Construction State and Federal Provisions Independent State Interpretation Factors Limitation. Only those nonexclusive factors set forth in State v. Gunwall, 106 Wn.2d 54 which involve the specific circumstances of a given case need be examined in determining if Const. art. 1, 7 provides greater protection than the Fourth Amendment with respect to a search or seizure.

[6] Automobiles Regulation of Drivers Review Local or National Concern. The proper regulation of drivers on the highways of this state is a matter of local, not national, concern for purposes of determining whether such regulation should be reviewed on independent state constitutional grounds.

[7] Automobiles Operator's License Suspension Special Vehicle Tab Validity of Stop Review Independent State Interpretation. A challenge to the validity of RCW 46.16.710, which requires that a special tab be affixed to the license plates of vehicles owned by operators whose driving privileges have been suspended and which authorizes police officers to stop such vehicles at any time to determine if they are being driven by licensed drivers, is reviewable on independent state constitutional grounds.

[8] Constitutional Law Construction State and Federal Provisions Independent State Interpretation Factors Federal Court Decisions. Any federal court decisions bearing on a matter being reviewed on independent state constitutional grounds are useful as guidance but do not compel a particular result.

[9] Automobiles Arrest Detention for Questioning Articulable Suspicion Vehicle Compared to Pedestrian Stop. The level of articulable suspicion (i.e., the substantial possibility that criminal conduct has occurred or is about to occur) needed to justify a stop is the same regardless of whether the person stopped is in an automobile or on foot.

[10] Arrest Detention for Questioning Articulable Suspicion Ambiguous Acts. Acts which are consistent both with criminal and noncriminal activity may justify a brief detention.

[11] Automobiles Operator's License Suspension Special Vehicle Tab Validity of Stop Articulable Suspicion. The presence of the special tab required by RCW 46.16.710 on the license plates of a vehicle, indicating that the vehicle is owned by an operator whose driving privilege has been suspended, constitutes an articulable suspicion of criminal activity sufficient to justify, under both the Fourth Amendment and Const. art. 1, 7, a stop of the vehicle on the public highways at any time to determine if it is being driven by a licensed driver.     

Nature of Action: Prosecution for driving with a suspended license and for driving a vehicle with expired license tabs.

Municipal Court: The Seattle Municipal Court, Nos. 89-131-0847 and 89-131-0846, Barbara T. Yanick, J., on July 21, 1989, entered a judgment of guilty.

Superior Court: The Superior Court for King County, No. 89-1-04176-1, Norman W. Quinn, J., on March 26, 1990, affirmed the judgment.

Court of Appeals: Holding that the defendant's standing to challenge the validity of a statute empowering police officers to stop at any time a vehicle operating with license plates specially marked with license tabs indicating that the vehicle's owner had previously been cited for driving the vehicle without a valid driver's license was limited to the statute as applied to the defendant and that the special tab statute did not violate the defendant's privacy rights under either the state or federal constitution, the court affirms the judgment.

Anita Paulsen of Seattle-King County Public Defender Association, for petitioner.

Mark H. Sidran, City Attorney, and Richard E. Greene, Assistant, for respondent.

BAKER, J. We granted discretionary review of a superior court decision affirming the convictions of Kenneth E. Yeager in Seattle Municipal Court of driving with a suspended license and with expired license tabs. We affirm, concluding that RCW 46.16.710-.760, as applied herein, violate neither the Fourth Amendment nor Const. art. 1, 7.

The statute authorizes the stop of a vehicle for inquiry into the status of its operator's license to drive, based on a tab on the vehicle's license plate indicating that the owner of the car was previously cited for not having a valid driver's license. Yeager was driving a car which bore such a tab and which was stopped by a police officer pursuant to RCW 46.16.710(3). 1

1 RCW 46.16.710(3) provides:

Any officer who sees a vehicle being operated with marked license plates may stop the vehicle for the sole purpose of ascertaining whether the driver of the vehicle is operating it in violation of [statutes prohibiting operation of a vehicle without a valid license]. Nothing in this section prohibits the arrest of a person for an offense if an officer has probable cause to believe the person has committed the offense.

The license plates of a vehicle are marked with a unique tab when the registered owner is arrested for a violation of one of the statutes prohibiting driving without a valid license. RCW 46.16.710(1). A new owner of a vehicle or an arrested owner whose driver's license has been reinstated may apply for new vehicle license tabs pursuant to WAC 308-96A-470. This ability to replace the marked tab removes this case factually from those holding that a criminal record may not be used as grounds to conclude an individual is presently engaging in a crime. See, e.g., State v. Tocki, 32 Wn. App. 457, 464, 648 P.2d 99, review denied, 98 Wn.2d 1004 (1982).

Yeager was the owner of the vehicle. A radio check indicated he had a suspended license. He was subsequently cited for driving with a suspended license.

The Municipal Court upheld the stop and found Yeager guilty, and the Superior Court affirmed.

STANDING

The courts below ruled that Yeager lacked standing to challenge the stop. In this court, the City concedes that Yeager has standing to raise both facial and as-applied challenges to the statute.

[1] We do not agree that Yeager has standing to raise a facial challenge. Except in the limited area of electronic eavesdropping, see State v. Salinas, 119 Wn.2d 192, 829 P.2d 1068 (1992); State v. Kadoranian, 65 Wn. App. 193, 828 P.2d 45 (1992), or where First Amendment freedoms are involved, a reviewing court will generally consider only whether a statute is unconstitutional as applied to the facts of that case. State v. Sigman, 118 Wn.2d 442, 445-46, 826 P.2d 144 (1992) (declining to consider facial challenge; no First Amendment issue). 2

2 State v. Carver, 113 Wn.2d 591, 781 P.2d 1308, 789 P.2d 306 (1989) also states that recent United States Supreme Court cases do not appear to limit facial challenges strictly to the First Amendment area, and sets forth three limited circumstances under which the United States Supreme Court would allow consideration of a facial challenge of a criminal statute. Carver, 113 Wn.2d at 599 n.2; see also State v. White, 97 Wn.2d 92, 97 n.1, 640 P.2d 1061 (1982) (setting forth four possible constitutional challenges to a stop and identify statute). None of these circumstances apply here, however.

Thus Yeager's appeal is limited to an analysis of whether RCW 46.16.710-.760 are unconstitutional as applied herein.

WASHINGTON CONSTITUTION

[2, 3] When there is an alleged violation of rights under both the United States and Washington Constitutions, this court will first independently interpret and apply this state's constitution. Seattle v. Mesiani, 110 Wn.2d 454, 456, 755 P.2d 775 (1988). An analysis under State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986) is necessary when it must be determined whether, in a given situation, the Washington constitutional provisions afford greater protection than the minimum protection afforded by the federal constitution. State v. Reece, 110 Wn.2d 766, 778, 757 P.2d 947 (1988), cert. denied, 493 U.S. 812 (1989); Gunwall, 106 Wn.2d at 61.

[4] The Superior Court declined to consider the state constitutional claims because the defense presented no Gunwall analysis. Yeager contends that such an analysis is unnecessary because Gunwall applies only when the issue is whether the state constitution grants more protection than the federal constitution. He relies on Mesiani, in which it was determined that stops at fixed sobriety checkpoints violated both Const. art. 1, 7 and the Fourth Amendment. Yeager has, nonetheless, provided a Gunwall analysis to this court. We hold that Yeager's failure to brief Gunwall below will not preclude our determining whether an analysis of the issue on independent state grounds is necessary. See State v. McFadden, 63 Wn. App. 441, 445-46, 820 P.2d 53 (1991) (addressing state constitutional issues after receiving briefing), review denied, 119 Wn.2d 1002 (1992).

[5] We follow the holding in State v. Boland, 115 Wn.2d 571, 576, 800 P.2d 1112 (1990) that in the article 1, section 7 context it is necessary only to examine the fourth and sixth Gunwall factors as they apply to this case. See McFadden, 63 Wn. App. at 446.

The fourth factor is a consideration of preexisting state law. Although the precise issue facing the court in this case is one of first impression, our courts have examined related vehicle stop issues, such as fixed sobriety checkpoints. Seattle v. Mesiani, supra. Thus, our case law has demonstrated a concern of our state citizenry relating to privacy in vehicles that would support our reviewing the issue on state grounds.

[6] The sixth factor is whether the privacy interest here is a matter of particular state or local concern. The proper regulation of drivers on our state's highways is such a matter. There is no need for national uniformity on this issue. See Gunwall, 106 Wn.2d at 62.

[7, 8] We therefore conclude that we should review this matter on independent state grounds. Any federal cases cited are for guidance and do not compel our result.

Washington's Constitution, article 1, section 7, provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." The question presented is therefore whether the defendant was unreasonably disturbed in his private affairs by the stop based on the marked license plate.

[9] In order for an investigative stop to be valid under either our state or federal constitutions, the officer must have "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968) (applied to state constitutional analysis in State v. Kennedy, 107 Wn.2d 1, 5, 726 P.2d 445 (1986)). No greater level of articulable suspicion is required for a car stop than for a pedestrian stop. Kennedy, 107 Wn.2d at 6 (citing Delaware v. Prouse, 440 U.S. 648, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979)). Articulable suspicion is a substantial possibility that criminal conduct has occurred or is about to occur. State v. Kennedy, supra.

Mesiani held that fixed sobriety checkpoints at which all oncoming motorists were stopped without warrants or individualized suspicion of criminal activity violated both the United States and Washington Constitutions. Mesiani, 110 Wn.2d at 458. 3

3 The discussion as to the Fourth Amendment in Mesiani was dicta. Two years later, the United States Supreme Court upheld such a sobriety checkpoint under the Fourth Amendment in Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 110 L. Ed. 2d 412, 110 S. Ct. 2481 (1990).

[10, 11] This stop is distinguishable from the stops in Mesiani, however. Here, the presence of the special tab on the license plate was a specific and articulable fact from which the officer could reasonably infer that there was a substantial possibility the driver of the vehicle did not possess a valid license. There was no such individualized suspicion present in the blanket stops in Mesiani. Although it is true that a validly licensed driver may endure an unwarranted stop under this statute, acts which are consistent both with criminal and noncriminal activity may justify a brief detention. Kennedy, 107 Wn.2d at 6. Thus, the investigative stop here was permissible under article 1, section 7.

Our conclusion is supported by the decisions of other jurisdictions. See, e.g., Smith v. State, 574 So. 2d 300 (Fla. Dist. Ct. App. 1991) (investigatory stop of vehicle permissible after determination by radio check that registered owner did not possess valid driver's license; driver stopped was not the owner); People v. Barnes, 152 Ill. App. 3d 1004, 1006, 505 N.E.2d 427, 428 (1987) (stop appropriate after random computer check indicated that owner of vehicle had suspended license; "[w]hile other people may drive an owner's vehicle, it is clear that the owner will do the vast amount of driving"); State v. Mills, 458 N.W.2d 395 (Iowa Ct. App. 1990) (stop valid where check done indicated owner did not have valid license; reasonable to infer vehicle was being driven by owner given absence of contrary evidence); State v. Panko, 101 Or. App. 6, 8-9, 788 P.2d 1026, 1027 (1990) (stop justified since it was reasonable for officer to suspect that driver of car was registered owner).

FOURTH AMENDMENT

Under Terry v. Ohio, supra, certain investigative stops may be permitted under the Fourth Amendment without probable cause to support a full arrest. See State v. Belieu, 112 Wn.2d 587, 594, 773 P.2d 46 (1989) (interpreting Terry and setting forth criteria for permitting such stops); State v. Williams, 102 Wn.2d 733, 737-39, 689 P.2d 1065 (1984) (quoting Terry). A seizure has occurred within the meaning of the Fourth Amendment when, by means of physical force or a show of authority, one's freedom of movement is restrained, State v. Stroud, 30 Wn. App. 392, 394-95, 634 P.2d 316 (1981) (citing United States v. Mendenhall, 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980)), review denied, 96 Wn.2d 1025 (1982), even if the period of detention is brief and short of a traditional arrest. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975). This rule applies to the stopping of an automobile and the detention of its occupants. Prouse, 440 U.S. at 653.

Prouse held that stopping a vehicle to check the driver's license and automobile registration, where neither traffic or equipment violations nor suspicious activity preceded the stop, was unreasonable under the Fourth Amendment. Prouse, 440 U.S. at 663. On this basis, it was held in State v. Marchand, 104 Wn.2d 434, 437-38, 706 P.2d 225 (1985) that a "spot check" stop during which vehicles on a highway were stopped for the purpose of checking driver's licenses, vehicle registrations, and equipment violated the Fourth Amendment. The Marchand court discussed with disapproval dicta in Prouse that suggested blanket stops of all oncoming traffic might be permissible, and ultimately held that the Fourth Amendment requires that statutes authorizing vehicle stops must impose constraints such that the officer's discretion to make such stops is not unconstrained or unfettered. Marchand, 104 Wn.2d at 438-39.

RCW 46.16.710(3) complies with this requirement since it authorizes stops only of vehicles operated with license plates marked in the manner set forth in RCW 46.16.710(1). Further, the statute provides that the scope of the stop shall be limited to the sole purpose of ascertaining whether the driver has a valid license to operate the vehicle. Thus, an officer's initial decision to interfere with the suspect's freedom of movement, which is at issue here, see Williams, 102 Wn.2d at 739, is sufficiently constrained by the requirement that the vehicle stopped have the marked plate.

Recently, the United States Supreme Court held in Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 110 L. Ed. 2d 412, 110 S. Ct. 2481 (1990) that a highway sobriety checkpoint program, under which all vehicles passing through the checkpoint were stopped and the drivers examined for signs of intoxication, did not violate the Fourth Amendment. Sitz, at 451-52. The court applied a test balancing the individual's privacy expectations against the government's interests in deterring drunken driving. After determining the balance weighed in favor of the state program, the Court held the stops were consistent with the Fourth Amendment. Sitz, at 449-50, 455. Delaware v. Prouse, supra, was distinguished on the basis that the stops therein were random and that the State had presented no empirical data to demonstrate that the stops would be an effective means of promoting roadway safety. Sitz, at 454.

Based on Sitz, the Fourth Amendment basis for the holdings in Mesiani and Marchand are imperiled. 4

4 Mesiani will survive since it rested primarily on Const. art. 1, 7, as detailed above. See Mesiani, 110 Wn.2d at 458.

Nonetheless, the stop in this case is less intrusive than any fixed checkpoint stop because of the individualized suspicion created by the presence of the tab. Thus, the Fourth Amendment viability of the stop herein is not endangered by the debatable status of Mesiani or Marchand.

Our holding is consistent with Brignoni-Ponce, which prohibited under the Fourth Amendment stops of vehicles near the Mexican border to determine if the vehicle contained illegal aliens, where the only basis for the stop was the apparent Mexican ancestry of the vehicle occupants. Brignoni-Ponce, 422 U.S. at 885-86. On the other hand, such factors as erratic or evasive driving, or unusual aspects of the vehicle itself may provide reasonable suspicion sufficient to justify stopping a car in the border area. Brignoni-Ponce, 422 U.S. at 884-85. Similarly, here, it was an aspect of the vehicle itself, the license tab, that provided the basis for the officer's reasonable suspicion to stop the vehicle.

In conclusion, we hold that no state or federal constitutional guaranties of privacy were violated by the enforcement of RCW 46.16.710 in this case, and we therefore affirm.

PEKELIS and KENNEDY, JJ., concur.

Reconsideration denied October 28, 1992.

Review denied at 121 Wn.2d 1027 (1993).