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A hunch ain't much

Posted by attorney Casey Arbenz

The Washington Supreme Court has once again rejected the notion that police can seize individuals without a warrant based on an officer's hunch that an individual is involved in criminal activity. In State v. Doughty, 2010 Wash. LEXIS 820, the defendant approached a suspected drug house at 3:20 AM, stayed for two minutes, and then drove away. Based on this evidence alone, Mr. Doughty's vehicle was stopped by police for "suspicion of drug activity" and a search of his vehicle revealed contraband. Both the trial court and Division III of the Court of Appeals concluded that the Terry stop was not a violation of either the 4th Amendment or Article I ? VII of the Washington Constitution. The Supreme Court reversed and, in a well reasoned opinion, Justice Richard Sanders once again affirmed that exceptions to the warrant requirement in Washington are "jealously and carefully drawn," and that police intrusions upon constitutionally guaranteed rights are forbidden on the basis of "inarticulate hunches." In support of the decision, the Court relied on the facts in State v. Richardson, 64 Wn.App. 693, 825 P.2d 754 (1995) and State v. Gleason, 70 Wn.App.13, 851 P.2d 731 (1993).

In Richardson, police observed the defendant, at 2:50 AM, walking with a suspected drug dealer "in a high crime area." The Court in that case rejected the police seizure of Mr. Richardson because police could not point out the "specific and articulable facts" necessary to suggest a substantial likelihood of criminal activity. Because the police relied on generalities and "hunches," the seizure was unconstitutional. In Gleason, the Court rejected a seizure of a person merely for exiting an apartment complex that had a history of drug sales. Gleason, 70 Wn.App. at 18. The Court reasoned that "this was the first time the defendant had been seen in the area, the officers did not know what occurred inside the apartment and neither officer saw him involved in the purchase of drugs. Further, there was no evidence Mr. Gleason was acting suspiciously, he was not carrying any unusual objects." Id. The Doughty Court identified the obvious similarities between the police observations in Gleason and the case before them, and stated the following: The Terry-stop threshold was created to stop police from this very brand of interference with people's everyday lives. The Supreme Court embraced the Terry rule to stop police from acting on mere hunches. Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction. On these facts, [police] acted on a hunch alone. Doughty, 2010 Wash at 6. Regardless of whether a person is in a "high crime area," "out late at night," or "associating with known drug dealers," police in the State of Washington are not allowed to invade an individual's private affairs without specific and articulable facts suggesting criminal activity. Anything less is just a hunch, and according to our Supreme Court, a hunch ain't much.

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