COURT REVERSALS ON SEARCH-AND-SEIZURE NARROW POLICE POWER

In two divided decisions that narrow search-and-seizure powers of police
officers, the state Supreme Court yesterday ruled that two drug arrests,
including one by Seattle police, were unlawful.

Justice Charles Smith, who wrote the majority decision for the nine justice
court, said that two Seattle police officers overstepped their authority
March 3, 1998, when they stopped a 16-year-old girl who was later found to
be carrying cocaine.

But in the dissenting opinion, Justice Philip Talmadge, wrote that the
Seattle case could cause "untold damage to law enforcement's traditional
community caretaking function."

Seattle officers stopped the girl about 10 p.m. in an area known for drug
trafficking while walking with a man the officers knew from previous
drug-related contacts.

According to court documents, "when the officers hailed (the girl), she put
her head down and continued to walk away." But "(she) was restrained by the
officers."

Officers did not believe the diminutive girl was 16, thinking she was much
younger. In court testimony, the officers said they thought she was "an
at-risk youth."

They detained the girl and, while patting her down, asked her to hold open
her coat. At that point, they discovered flecks of white rock on the coat
lining.

After a field test showed the flecks to be cocaine, the girl admitted she
was carrying more in her bra, and she was arrested. She was convicted of
possession of a controlled substance and was sentenced to 2 1/2 years in
detention. The state Court of Appeals later upheld her conviction.

In throwing out the drug conviction, Justice Smith wrote, "The community
caretaking function . . . may not be used as a pretext for a criminal
investigation."

In cases where individual freedom and police power are weighted against each
other, "the balance should be struck on the side of privacy, because the
policy of the Fourth Amendment is to minimize governmental intrusion into
the lives of citizens," Smith wrote.

Lis Wiehl, a professor at the University of Washington School of Law and a
former federal prosecutor, said the Supreme Court overturned the Appeals
Court decision because justices found the girl had been unlawfully detained.

"What the court had trouble with was the seizure" - when the officers
stopped and detained the girl. "She didn't feel that she could walk away
when they stopped her."

After it was found that the girl had been detained unlawfully, "anything
they find off of her is fruit of the poisonous tree" and is not admissible
in court, Wiehl said.

But Talmadge argued that the decision will have "an immediate and
devastating effect" on a police officer's ability to provide for the
public's safety.

In the second case, the justices ruled 7-2 that in 1995 two Pierce County
deputies conducted an unlawful search when - without a warrant - they walked
up a Pierce County man's driveway late at night to look into a tip about a
marijuana-growing operation.

They smelled marijuana from the driveway, obtained a warrant and arrested
the man, Gary Ross.

A Pierce County judge ruled investigators "were on legitimate business,
investigating an allegation of a crime."

But the state Court of Appeals said the initial search before obtaining a
warrant was unlawful because the deputies "exceeded the scope of an implied
invitation" because they entered Ross' property acting on a tip that there
were drugs there, late at night and through a side entrance.

The Supreme Court affirmed the lower court's decision.