State v. Baro

¶1Felix Baro-Morales (Baro) appeals his conviction and sentence for possession of a controlled substance, cocaine. His sole contention on appeal is that investigative or "Terry"1 stops are unconstitutional under article 1, section 7 of the Washington State Constitution. This court has determined that the opinion of the Supreme Court in State v. Kennedy, 107 Wn.2d 1, 726 P.2d 445*444(1986) is dispositive of this issue. In addition, the recent case of State v. Patterson, 112 Wn.2d 731, 774 P.2d 10 (1989) also confirms the fact that Kennedyis dispositive. Accord, State v. Belieu, 112 Wn.2d 587, 773 P.2d 46 (1989). On appeal, Baro does not contend that the circumstances surrounding his initial encounter with authorities were insufficient to justify his detention for investigation of suspected criminal activity. Therefore, the facts need not be restated.

¶2Baro contends that investigatory "Terry" stops are unconstitutional under Washington law because they are without "authority of law" as required by article 1, section 7 of the state constitution.2 Baro argues that the Terry decision involved only an analysis of federal constitutional law; it does not obviate the necessity for an independent state constitutional law analysis.3 Baro claims there is no statute, common law principle, or court rule, that provides for investigatory stops and therefore any stop absent probable cause is unconstitutional under the Washington Constitution. As authority, Baro cites Seattle v. Mesiani, 110 Wn.2d 454, 755 P.2d 775 (1988), which he claims mandates that "authority of law" independent of federal law must exist to authorize an investigative stop for the stop to comply with article 1, section 7 of the Washington Constitution. The State contends the case of State v. Kennedy, 107 *445Wn.2d at 4-9, and its progeny4 are dispositive of the case. We agree with the State's position.

¶3Kennedyindisputably holds that investigative stops are constitutional under Const. art. 1, § 7; that the scope of the protection afforded by the provision is freedom only from unreasonable searches and seizures; that articulable and individualized suspicion by an officer gives rise to the reasonableness necessary to justify the intrusion; and thus, the intrusion does not rise to the level of requiring "authority of law." Alternatively, the "authority" is grounded on the need for societal protection from criminal activity and officers have that authority by the nature of their office and to protect themselves from danger. See Kennedy, 107 Wn.2d at 12.

¶4Recently in State v. Patterson, 112 Wn.2d 731, 735, 774 P.2d 10 (1989), a post-Mesiani case, the Supreme Court, in discussing the propriety of a search of a parked, unoccupied, secured vehicle, reiterated its decision in Kennedyand State v. Stroud, 106 Wn.2d 144, 720 P.2d 436 (1986), as being in concert with article 1, section 7 as follows:

Against societal need, we balance privacy interests provided by article 1, section 7 of our own constitution. Both analysis under the factors outlined in State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986), and scholarly commentary support our independent interpretation of that provision. See Gunwall (analyzing Const. art. 1, § 7); see also Nock, Seizing Opportunity, Searching for Theory: Article 1, Section 7, 8 U. Puget Sound L. Rev. 331, 366 (1985).

In the areas of search incident to arrest and Terry stops, we found that concerns for safety of officers and potential destructibility of evidence do outweigh privacy interests and warrant a bright-line rule permitting limited searches. See State v. Stroud, supra; State v. Kennedy, supra.

¶5Baro relies on the subsequent opinion in Mesianito argue that the holding in Kennedyhas been thrown into *446question because the opinion did not contain the independent analysis of the "authority of law" issue. The Pattersoncase refutes this claim. Further, Mesianiis distinguishable. Unlike the case at bar, Mesianiinvolved stops at sobriety checkpoints that were without individualized suspicion of criminal activity and thus outside the reasonableness exception to. the scope of state constitutional provisions.

¶6The decision of the trial court is affirmed.

¶7Review denied at 113 Wn.2d 1030 (1989).