95 WASHAPP 686 - State v. L.K.

Baker, J.

¶1(dissenting) — I respectfully dissent. The “community caretaking function” as an exception to the constitutionally required basis for the seizure of a citizen by police has never been so broadly or loosely described in the case law, nor should it be.

¶2As the parties agree, L.K. was seized by the police as she was walking on the sidewalk of a major downtown Seattle street at about 10 p.m. on a weeknight. She was seized after she made clear by her actions that she did not choose to engage in a consensual encounter with uniformed Seattle Police Officers.

¶3 *698Prior to and at the time of her seizure, neither L.K. nor any of the three persons with whom she was walking had acted in any way suspiciously. There was no indication whatsoever that any drug related activity was occurring. There was nothing unusual about the conduct of any one of the four persons, nor was anything unusual observed about the interaction between L.K. and the others. There was nothing to justify an intrusion on the basis of exigent circumstances.

¶4What were the factors that led to L.K.’s seizure? Although she was just short of 17 years old, the officers thought she could have been between 11 and 15. One of the three persons she was with was recognized as having a prior narcotics arrest.28 She was walking in an area of Seattle known to have drug activity.29 It was about 10 p.m. She did not choose to stop and talk to the police. No previous case anywhere has held that such factors, or anything close to them, justify the seizure of a citizen.

¶5The majority opinion’s focus on laws relating to drugs and persons under 18 years of age and the responsibility of the police to investigate juvenile delinquency is beside the point. There was no observed drug related activity, and certainly nothing to indicate juvenile delinquency was afoot. Although there was nothing to indicate L.K. was “in trouble,” the officers nonetheless chose to interfere with her rights to privacy and movement. Notwithstanding the majority’s discussion on public policy factors, I do not agree that the proper balance between those factors and L.K’s freedoms is apparent in the outcome of this case.

¶6What is apparent, as admitted by one of the officers, was that the officers were suspicious of possible criminal activ*699ity because of the time, the location, and the fact that L.K. did not want to talk. Such suspicions would not justify a Terry stop, and the State does not try to justify the seizure on that basis. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Instead, the State argues that the seizure of L.K. was permitted by the “community caretak-ing function” exception to search and seizure constitutional requirements.

¶7Judicial characterization of some police actions as community caretaking functions has its genesis in Cady v. Dom-hrowski.30 Such activities were initially described as “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”31 Thereafter, the caretaking exception has been considered mostly in cases dealing with automobile impoundment.32 No case cited by the State or by the majority has ever utilized this limited and cautiously applied exception to Fourth Amendment rights to justify the seizure of a person, much less on such flimsy grounds as these.

¶8It is ironic that this court recently invalidated a youth curfew ordinance, ruling that minors have the same fundamental right of freedom of movement that adults have.33 It is quite difficult to logically correlate that holding with the extravagant and completely unsupported assertion in the majority’s opinion that a “contrary ruling [in this case] would insulate criminals who prey upon children by involving them in prostitution, sexual exploitation and narcotics trafficking.”34

¶9 *700Finally, the facts in this case are that the other three persons with L.K. stopped voluntarily when approached by the police. Any desire by the police to clarify the situation could certainly have been satisfied by querying those individuals. But, if any of them had decided not to stop and talk to the police, they most certainly could not have been constitutionally seized by the police. I can see no valid basis for the seizure of L.K., either. I would reverse.

¶10Review granted at 139 Wn.2d 1001 (1999).

¶11The fact that a person has previously been arrested for narcotics possession is' not probable cause to believe that person is committing a crime. See State v. Hobart, 94 Wn.2d 437, 446-47, 617 P.2d 429 (1980). Obviously, a person’s association with someone previously arrested does not provide any basis to seize that person.

¶12The fact that a person is present in an area which has a history of crime is also irrelevant for purposes of probable cause. See State v. Ellwood, 52 Wn. App. 70, 74, 757 P.2d 547 (1988).

¶13413 U.S. 433, 37 L. Ed 2d 706, 93 S. Ct. 2523 (1973).

¶14Cady, 413 U.S. at 441.

¶15See, e.g., State v. Houser, 95 Wn.2d 143, 152, 622 P.2d 1218 (1980), where our Supreme Court held that the exception could not be used to justify the seizure of an automobile merely because the police suspected it might be stolen; State v. Mennegar, 114 Wn.2d 304, 309, 787 P.2d 1347 (1990), which held that police could check for a valid operator’s license before turning a car over to a passenger in a vehicle validly stopped for a traffic violation where the driver was inebriated.

¶16State v. J.D., 86 Wn. App. 501, 507, 937 P.2d 630 (1997).

¶17The majority cites no authority for this proposition. Moreover, it is worth noting that L.K. walked away from the three individuals who stopped and spoke *700with the police. Although the officers were familiar with those individuals, the record does not indicate that the officers were familiar with L.K., that she was involved in any illegal activities, or that she was being exploited or restrained in any way. Thus, it is not apparent that “the officers were entitled to satisfy themselves that L.K. was not in danger.” Majority op. at 694.