Any stop of an automobile by the police is a “seizure” under both state and federal constitutional analysis. State v. Ladson, 138 Wn. 2d 343, 350, (1999) citing Wash. Const. Art. I, § 7; U.S. Const. Amend. 4; U.S. v. Colin, 314 F. 3d 439 (9th Cir. 2002) (citing United States v. Arvizu, 534 U.S. 266, 275, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002)); United States v. Sigmond-Ballesteros, 285 F.3d 1117, 1121 (9th Cir.2002), reh'g en banc denied by 309 F.3d 545 (9th Cir.2002). Any vehicle stop must be made in harmony with both the Fourth Amendment and Const. Art. I, § 7 proscriptions against unreasonable searches and seizures. State v. Chisholm, 39 Wn. App. 864, 866, (1985). A seizure occurs when an officer “activates his emergency lights.” State Vandover, 63 Wn. App. 754 (1992);State v. Reeb, 63 Wn. App. 672 (1992);State v. DeArman, 54 Wn. App. 621 (1989).
In State v. Tonelli-Prado, the officer observed the defendant’s vehicle cross over an eight-inch white lane divider in the exit lane of I-5 at Cherry Street in Seattle by approximately two tire widths. The cross over was described as lasting for about one second. The officer determined that this was sufficient to stop the defendant for violation of RCW 46.61.140 which requires in part that:
Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply: (1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.
In its response to the defense challenge to the stop, the Court of Appeals in Tonelli-Prado looked specifically to the language “as nearly as practicable” contained in the statute. It reasoned that the Legislature included this language because it recognized that brief incursions over the lane lines will happen and consequently the statute does not require a driver to remain exclusively in a single lane. The Court went on to conclude that “a vehicle crossing over the line for one second by two tire widths on an exit lane was a permitted brief incursion over the lane line" and fell within the exception to exclusive lane travel anticipated by the statute. Consequently, the stop in Tonelli-Prado was found to be unlawful. State v. Tonelli-Prado, 186 P.3d 1186 (2008).
Tonelli-Prado merely codifies an established legal precedent regarding lane travel that has been previously addressed and settled. Colin,supra; U.S. v. Smith, 799 F. 2d 704 (11th Cir. 1986); U.S. v. Gregory, 79 F.3d 973 (10th Cir. 1996). The Ninth Circuit addressed facts more expansive than Tonelli-Prado when deciding that a stop was not legal and ruling to suppress the discovered narcotic evidence. Colin, supra. InColin, a police officer stopped the defendant’s vehicle as it traveled along a multi-laned highway because:
He observed the car drift onto the solid white fog line on the far side of the right lane and watched the car's wheels travel along the fog line for approximately ten seconds… the car drift to the left side of the left lane where its left wheels traveled along the solid yellow line for approximately ten seconds.
The officer pulled the car over for possible violations of California Vehicle Code § 21658(a) (lane straddling) and California Vehicle Code § 23152(a) (driving under the influence). Colinat 441. The relevant California Vehicle Code provision, § 21658(a), is nearly identical to RCW 46.61.140.
Whenever any roadway has been divided into two or more clearly marked lanes for traffic in one direction, the following rules apply: (a) A vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from the lane until such movement can be made with reasonable safety.
California Vehicle Code, § 21658(a).
In Colin, the court ruled that the stop was unlawful. Id. at 442. Under Fourth Amendment analysis, the court concluded that the officer lacked a reasonable suspicion to stop the defendant for either lane straddling or DUI. Id. at 446. The Court found that even if a portion of the vehicle was technically over the line, a driver has satisfied the requirement that they drive as “nearly as practical” within their lane. Id. at 444. Since the stop was illegal, all resulting evidence, including the methamphetamine drug, was suppressed. Id. at 447.
Similarly, In Smith the Eleventh Circuit Court of Appeals determined that the weaving and lane crossing actions of a vehicle are not a legal basis to stop a vehicle. Florida statute F.S.A. § 316.089(1) reads like the California statute in Colin and like RCW 46.61.140. Id. at 709. The Florida statute states that “A vehicle shall be driven as nearly as practicable entirely within a single lane.”Id.
The Officer testified that while following the vehicle, he saw the car "weaving."
“I observed the right side of the wheels of that vehicle cross over the white painted edge line approximately six inches into the emergency lane.The vehicle was then brought back into the center of the white [right?] northbound lane. Then the car drifted over to the white painted center line. However, the wheels did not touch or cross over the center line. The vehicle then weaved an additional two times before it was stopped.” Id.at 706.
Considering these facts, the 11th Circuit ruled the stop illegal and suppressed all the Meth found in defendant’s possession. Id.
Lastly, and most on point, consider Gregory where the statute again reads almost identical to the RCW at issue in this case. Gregory, supra. Therein, the Utah statute provides:
“On a roadway divided into two or more clearly marked lanes for traffic the following provisions apply: (1) A vehicle shall be operated as nearly as practical entirely within a single lane and may not be moved from the lane until the operator has determined the movement can be made safely.” Utah Code Ann. § 41-6-61(1) (1988).
In Gregory the 10th Circuit suppressed all evidence from the illegal stop where Mr. Gregory had driven his U-haul truck onto the right shoulder of the interstate. In fact the court noted that “since the movement of the vehicle occurred toward the right shoulder, other traffic was in no danger of collision.” Id. at 978. The court found that a vehicle crossing into the emergency lane of a roadway is not a violation of lane travel requirements. Id. at 978. The ten kilograms of cocaine and additional marijuana found in the truck was all suppressed. Id. at 980.
“If the initial stop was unlawful, the subsequent search and fruits of that search are inadmissible...." State v. Kennedy, 107 Wash. 2d 1, 4, (1986). . All evidence obtained following the unlawful stop should be suppressed (and the case should be dismissed).