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State v. Harlow

April 3, 1997

STATE OF WASHINGTON, RESPONDENT,
v.
BEVERLY E. HARLOW, PETITIONER.



Appeal from Superior Court of Yakima County. Docket No: 95-2-00214-7. Date filed: 09/14/95. Judge signing: Hon. John G. Burchard Jr.

As Corrected.

Authored by John A. Schultheis. Concurring: Philip J. Thompson, Frank L. Kurtz.

The opinion of the court was delivered by: Schultheis

SCHULTHEIS, A.C.J. Omak Police Officer Andrew Ditzel kept a list of city residents who were believed to have suspended drivers' licenses.

Officer Ditzel stopped Beverly Harlow when he saw her driving and remembered her name was on the list. She was arrested and booked into jail for driving while her license was suspended. Her motion to dismiss the citation was denied and she appeals, contending the maintenance of a suspended licenses list is an unconstitutional search and an unreasonable invasion of her private affairs. We affirm.

When Officer Ditzel began training as a police officer, his trainer, Officer Mike Marshall, was keeping a list of people who had suspended licenses. These were people Officer Marshall had personally cited for driving with suspended licenses. Officer Marshall gave the list to Officer Ditzel, who maintained the list by checking the names every week and adding new names as he cited drivers himself. According to Officer Ditzel, he and Officer Marshall knew on sight each of the approximately 55 people on the list.

On February 16, 1995, Officer Ditzel saw Ms. Harlow driving. He had run a check on his list of suspended licenses the day before, and knew she was probably driving without a valid license. Ms. Harlow pulled into her driveway just as Officer Ditzel recognized her. He pulled in behind her and asked her to get back in her car while he ran a driver's check. When dispatch confirmed that she still had a suspended license, he arrested her.

Ms. Harlow was charged in district court with third degree driving while license suspended. RCW 46.20.021. Before trial, she moved to dismiss for lack of reasonable grounds to stop and detain her. *fn1 The trial court applied Article I, Section 7 of the Washington Constitution and found that there is, at best, only a limited expectation of privacy in a driver's licensing record. The court also found that Officer Ditzel had prior knowledge, recently confirmed, that Ms. Harlow had a suspended license, and that this information was not obtained on a "fishing expedition." Accordingly, the court decided the officer had an articulable suspicion of illegal conduct that justified the stop and check of Ms. Harlow's driving status. The Superior Court of Okanogan County affirmed. We granted Ms. Harlow's motion for discretionary review.

Ms. Harlow contends both Article I, Section 7 of the Washington Constitution and the Fourth Amendment of the United States Constitution provide protection against police maintenance of a suspended licenses list. She argues the list and the weekly checks of the drivers' records constitute warrantless searches and invasions of privacy.

When a defendant alleges violations of rights under both the state and the federal constitutions, this court first independently interprets and applies the state constitution. State v. Young, 123 Wash. 2d 173, 178, 867 P.2d 593 (1994). The Washington State Constitution may provide greater protection than the federal constitution. Id. at 179. To determine whether Article I, Section 7 provides greater protection here, it is necessary to apply an analysis of the six nonexclusive factors of State v. Gunwall, 106 Wash. 2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986). Young, 123 Wash. 2d at 179; State v. Boland, 115 Wash. 2d 571, 575, 800 P.2d 1112 (1990).

Briefly, the Gunwall factors are (1) the textual language, (2) comparison of the language in the texts of both constitutional provisions, (3) constitutional history, (4) preexisting state law, (5) structural differences and (6) matters of particular state or local concern. Gunwall, 106 Wash. 2d 54 at 58; State v. Johnson, 75 Wash. App. 692, 702 n.4, 879 P.2d 984 (1994), review denied, 126 Wash. 2d 1004 (1995). In the context of Article I, Section 7, factors 1, 2, 3 and 5 were adopted by the Washington Supreme Court in Boland, 115 Wash. 2d 571 at 576. Accordingly, we only address the Gunwall factors of preexisting state law and matters of state and local concern. Johnson, 75 Wash. App. at 702; City of Seattle v. Yeager, 67 Wash. App. 41, 45, 834 P.2d 73 (1992), review denied, 121 Wash. 2d 1027, 854 P.2d 1086 (1993).

Washington cases have not addressed privacy rights in driving records. RCW 46.52.120(2) specifically authorizes police use of motor vehicle case records. That statute also emphasizes the confidentiality of those records, however, and limits their availability to certain classes of people, including law enforcement, traffic enforcement, and some public officials. Certified abstracts of the driving records are available only to the above, to employers and insurance carriers, and to certain other agencies. RCW 46.52.130. Case law supports the privacy interests of individuals in automobiles. See City of Seattle v. Mesiani, 110 Wash. 2d 454, 456-57, 755 P.2d 775 (1988) and cases cited therein; Yeager, 67 Wash. App. at 45-46. From these related cases and statutes, we find that preexisting state law supports greater privacy protection under Article I, Section 7 in this case.

Gunwall's sixth factor, whether the privacy interest is of state or local concern, is easily met. Law enforcement measures and regulation of drivers on state highways are both matters of local concern. Young, 123 Wash. 2d 173 at 180-81; Yeager, 67 Wash. App. at 46. There is no need for national uniformity on use of state drivers' records.

In light of the above, we review this matter on independent state constitutional grounds. Const. art. I, sec. 7 provides that "no person shall be disturbed in his private affairs, or his home invaded, without authority of law." In determining whether a right of privacy has been violated under this provision, the relevant inquiry is whether the State unreasonably intruded into a person's private affairs. State v. Goucher, 124 Wash. 2d 778, 782, 881 P.2d 210 (1994); Young, 123 Wash. 2d 173 at 181; Boland, 115 Wash. 2d 571 at 577. The focus is on the privacy interests Washington citizens have held, and should be entitled to hold, safe ...


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