THE AUTOMOBILE SEARCH IN WASHINGTON AND OREGON: WHICH STATE WOULD YOU FEEL SAFER IN? 

THE AUTOMOBILE SEARCH IN WASHINGTON AND OREGON: WHICH STATE WOULD YOU FEEL SAFER IN? 

In the Pacific Northwest, as an attorney for all these years now, I have learned the subtle differences in the states of Oregon and Washington as to the safety from government I am in a vehicle.  The two states are quite different, and in other respects the same.

            For example, sobriety checkpoints are illegal in both Washington and Oregon.  In Washington, they are illegal based on case law  Seattle v. Mesiani; 1988. In Oregon, sobriety checkpoints are illegal by their Constitution.   Nelson v. Lane County 743 P.2d 692 (1987). Article 1 Section 9 of the Oregon Constitution.

            The two states are night and day difference from each other. The culture in Washington, is more of anti government control free thinking society who is always on the forefront of new social experiments. Oregon, is an other wise double mind set of a very conservative populace that surrounds and even more liberal population in Portland and Eugene (ok, maybe Ashland too!).   Therefore, Oregon is liberal but has a conservative side that really wants justice (For example: Measure 11 and its mandatory sentences; 2) legendary lawman Virgil Wyatt Earp is buried in the state of Oregon at River View Cemetery.).

               Article I, section 7of the Washington Constitution is more protective of individual privacy than the Fourth Amendment, and we turn to it first when both provisions are at issue. State v.Ortega, 177 Wn.2d 116, 122, 297 P.3d 57  (2013) (citing State v. Walker, 157 Wn.2d 307,313, 138 P.3d 113 (2006)); State v. Afana, 169 Wn.2d 169, 176,233 P.3d 879 (2010).       Under article I, section 7, a warrantless search is per se unreasonable unless the State proves that one of the few “carefully drawn and jealously guarded exceptions” applies. Ortega, 177 Wn.2d at 122 (citing Afana, 169 Wn.2d at 176-77; State v. Patton, 167 Wn.2d 379, 386,219 P.3d 651 (2009)).Recently in Washington, the Washington state Supreme Court ruled that police must obtain a search warrant to search a vehicle even if they believe it contains evidence of the crime for which the person was arrested.  State vs. Snapp   275 P.3d 289 (Washington 2012). This stems from the culture of Washington, and the state’s Supreme Court following in that cultural trend, to want too much government intrusion in their lives.                  In Oregon, they play a trick on the public by using different wordage for quasi crimes that, in Washington, would only be an infraction.  They still call an “infraction”, actual “crimes” in Oregon.  Therefore,  The Oregon Supreme Court stated that Infrac­tions are crim­i­nal and search warrant may issue for their investiga­tion (in Oregon state). State v. Weist, 79 Or App 435, 720 P2d 753 (1986), affd 302 Or 379, 730 P2d 25 (1986.  )      Seriously, if you are speeding and have something illegal in your vehicle, which state would you feel safer in?  In Washington for example, they only have infractions for things like Speeding, improper parking, following too closely, illegal turns, etc.)  This is merely civil in the Washington system.  So, in the case of State vs. Ladson, the Supreme Court of Washington ruled someone who has committed a traffic offense, such as failing to signal  or eating while driving, does not justify a warrantless seizure which would not otherwise be permitted absent that “authority of law” represented by a warrant.   This confirmed previous decisions of the court of a strict no-pretext rule in State v. Michaels, 60 Wash.2d 638, 374 P.2d 989 (1962).   In Oregon, if you are pulled over speeding, they consider this a “crime” and can search your entire vehicle, without a warrant.  In Washington, they cannot search your vehicle without probable cause and, arguably under most circumstances, your vehicle.  Seriously, which state would you feel safer in?  I think this message is getting clear now.   In Oregon, think Wyatt Earp, and in Washington, think independence and freedom from government intrusion.

In Washington state, “ ‘As a general rule, warrantless searches and seizures are per se unreasonable.’ ”  State v. Hendrickson, 129 Wash.2d 61, 70, 917 P.2d 563 (1996) (quoting State v. Houser, 95 Wash.2d 143, 149, 622 P.2d 1218 (1980)).   They are, however, subject to “a few ‘ “jealously and carefully drawn” exceptions’ ․ which ‘provide for those cases where the societal costs of obtaining a warrant ․ outweigh the reasons for prior recourse to a neutral magistrate.’ ”  Id. (emphasis added) (quoting Houser, 95 Wash.2d at 149, 622 P.2d 1218 (quoting Arkansas v. Sanders, 442 U.S. 753, 759, 99 S.Ct. 2586, 2590-91, 61 L.Ed.2d 235 (1979), abrogated on other grounds by California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991))).

Exceptions to the warrant requirement fall into several broad categories:  consent, exigent circumstances, searches incident to a valid arrest, inventory searches, plain view, and Terry ² investigative stops.  Hendrickson, 129 Wash.2d at 71, 917 P.2d 563 (citing Robert F. Utter, Survey of Washington Search  and Seizure Law:  1988 Update, 11 U. Puget Sound L.Rev. 411, 528-80 (1988)).   The burden is always on the state to prove one of these narrow exceptions.  Hendrickson, 129 Wash.2d at 71, 917 P.2d 563.

The warrant requirement is especially important under article I, section 7, of the Washington Constitution as it is the warrant which provides the “authority of law” referenced therein.  Mesiani, 110 Wash.2d at 457, 755 P.2d 775.   Absent a warrant, “[w]e have recognized that well-established principles of the common law may in some cases be sufficient to provide the authority of law required by Const. art. 1, § 7.” City of Seattle v. McCready, 123 Wash.2d 260, 273, 868 P.2d 134 (1994).

            In Oregon, you have some protection from a search with items that are locked and closed after a search of your person. If the item is closed or locked and on your person, the warrantless search of the box is illegal. Search incident to arrest for driving while suspended can justify removal of box from defendants pocket, but without sugges­tion that box contains evidence of crime for which defendant was arrested, opening box and inspecting contents is unlawful. State v. Jones, 103 Or App 316, 797 P2d 385 (1990) Basically, if the item is in the vehicle and locked, not on the person being searched, and the police are looking for drugs, they can search everywhere in the vehicle. However, if they are looking for stolen full screen TV, they cannot search the glove box for it. Page 17.https://www.aclu.org/files/FilesPDFs/ALPR/oregon/Washington%20County%20Sheriff%27s%20Office/30012-30050%20Search%20and%20Seizure%20Field%20Guide.pdf .

Again in Washington, you need the warrant to search items in the vehicle even if the arrest of the individual was valid.  Again, which state would you feel safer in?

So, as a final thought, the next time you drive into Oregon, where the fastest speed on the freeway is still around 55 mph, and the police usually use dash cameras in all their vehicles, and you have your stash in the back glove compartment, think about what the police can do once they pull you over.  If you make it to Washington state, where you can drive up to 70 with no problem in most areas, I think from what you read above, you will find that, with the air of Washington, you can breathe a big sigh of relief.  You are going to be alright.    You are going to make it.

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Gregory Scott Hoover’s primary area of legal practice is in the form of civil automobile accident litigation and criminal litigation and assisting those involved in EB-5 transactions. Mr. Hoover is licensed in both Oregon and Washington, and New York, U.S.A., and England and Wales. Mr. Hoover is also a skilled negotiator, mediator and arbitrator. As a skilled negotiator and litigator, Mr. Hoover can skillfully resolve your situation through effective negotiations or, if necessary, aggressively represent your matter in court.

Hoover Law Group

815 S. Weller Street Suite 105, Seattle, WA 98104

Hoover Law Group

1001 SW 5th Avenue Suite 1100, Portland, OR 97204