Washington Supreme Court Announces Race and Ethnicity Are Relevant Factors in Analysis of Whether Someone Has Been ‘Seized’
by Jacob Barrett
In a case of first impression in Washington, the Supreme Court of Washington clarified its seizure analysis by expressly holding that race and ethnicity are relevant factors in determining whether a person has been seized.
In April 2019, Pierce County Sheriff’s Deputy Mark Rickerson was on patrol in an unmarked police car wearing his full uniform in an area he described as having “some problem houses” that he wanted to “keep an eye on.” At 9:15 a.m., he saw a Honda Civic parked in a church parking lot.
There was nothing illegal about the vehicle. It wasn’t blocking any entrances or otherwise illegally parked; nonetheless, Rickerson testified it drew his attention because “it was parked there.” He stated that the location was significant because “four or five months before ... another deputy in [his] unit arrested another subject there in a stolen vehicle.”
He also claimed during that same period, “an unnamed person approached [him] in a nearby grocery store parking lot to tell [him] that they were ‘concerned about all the vehicles that were parking there that didn’t belong in the area.’”
With that in mind, Rickerson observed Palla Sum sitting in the driver’s seat of the vehicle in question, and that he was “slumped over and appeared unconscious.” Before he made contact with Sum, he conducted a license check of the vehicle and located a “report of sale, although it was not clear when the sale had occurred” and did not state the name of the current owner. The records check also revealed the vehicle had not been reported as stolen. He also confirmed that the VIN matched the license plate number.
Rickerson testified he then attempted “a social contact.” As he approached the vehicle, he observed a second occupant in the passenger seat who also “appeared to be unconscious.” He knocked on the window, and Sum “slowly woke up” and partially rolled the window down.
Rickerson began questioning the pair about why they were there and who owned the vehicle. Sum indicated he was there “waiting for a friend,” and the vehicle was not his. Sum identified the owner as a friend but did not give the last name of the individual.
When Rickerson asked the pair for their identification, Sum “asked him why he wanted it.” Rickerson claimed the pair “were sitting in an area known for stolen vehicles and that [Sum] did not appear to know who the vehicle” belonged to. The passenger gave Rickerson a true name and birth date, but Sum gave him a false name and birth date.
When Rickerson went back to his car to check their identification, Sum started the vehicle and drove off. Rickerson activated his emergency lights and began pursuing Sum. During the pursuit, Sum violated several traffic laws, including running stop signs and red lights and eventually crashed into someone’s front yard. Sum was arrested and read his Miranda rights.
A search of Sum incident to arrest uncovered the title and registration, which showed him as the owner. A holster was also found on him. A gun was recovered during a subsequent search pursuant to a warrant.
Sum was charged with multiple offenses, including making a false or misleading statement to a public servant. The charging documents listed him as “ASIAN/PACIFIC ISLAND[ER].” He filed a motion to suppress, arguing that he was unlawfully seized without reasonable suspicion when Rickerson asked him for his identification and implying he was suspected of vehicle theft. The trial court denied the motion, and a jury convicted him of all charges.
Sum appealed, and the Court of Appeals affirmed in an unpublished opinion, “holding that Sum was not seized by the deputy’s request for identification and because ‘merely asking for identification is properly characterized as a social contact.’”
Sum then petitioned the Washington Supreme Court for review reiterating his previous arguments but raising for the first time “there is no justification — aside from unacceptably ignoring the issue of race altogether — for courts considering the totality of the circumstances to disregard the effect of race as one of the circumstances affecting evaluation of police contact.”
The Court granted review on the sole issue of when did Sum’s interaction with Rickerson rise to the level of a warrantless seizure for purposes of article I, section 7 of the Washington Constitution. The State conceded that there was no lawful reason to seize Sum until he sped off at a high rate of speed.
The Court stated because “it is well settled that article I, section 7 of the Washington Constitution provides greater protection to individual privacy rights than the Fourth Amendment to the United States Constitution,” it is considering the issue “as a matter of independent state law.”
Under article I, section 7, a seizure occurs “when considering all the circumstances, an individual’s freedom of movement is restrained and the individual would not believe [they are] free to leave or decline a request due to an officer’s use of force or display of authority.” State v. Rankin, 92 P.3d 202 (Wash. 2004). The Court explained that it must answer the open question of whether “all the circumstances” includes the “race and ethnicity” of the person allegedly seized. The Court announced that “the answer is yes.”
In making the seizure determination, courts objectively look “at the actions of the law enforcement officer.” Id. The subjective intent of the officer is irrelevant to the analysis, unless such intent was conveyed to the seized person. State v. O’Neill, 62 P.3d 489 (Wash. 2003).
Turning to the present case, the Court stated that “our precedent has conspicuously failed to acknowledge the impact of race and ethnicity on police encounters” and announced that “we hold that an allegedly seized person’s race and ethnicity are relevant to the question of whether they were seized by law enforcement for purposes of article I, section 7.” It explained that an examination of (1) “the constitutional text,” (2) “the historical treatment of the interest at stake as reflected in relevant case law and statutes,” and (3) “the current implications of recognizing or not recognizing an interest” all show that race and ethnicity are, indeed, relevant in a seizure determination. State v. Chenoweth, 158 P.3d 595 (Wash. 2007).
The Court noted that a number of courts applying the Fourth Amendment have already recognized that the race of an allegedly seized person “is ‘not irrelevant’ to the question of whether a seizure occurred.” United States v. Smith, 794 F.3d 681 (7th Cir. 2015) (quoting United States v. Mendenhall, 446 U.S. 544 (1980)); United States v. Washington, 490 F.3d 765 (9th Cir. 2007). And at least one other state has recognized that race and ethnicity should be considered when “conducting the totality of circumstances seizure analysis” as a matter of independent state law. State v. Jones, 235 A.3d 119 (N.H. 2020).
Applying the newly announced seizure analysis to Sum’s case, the Court rejected the State’s argument that (1) “Sum did not produce evidence showing that police in Pierce County in 2019 were likely to commit acts of discrimination and violence against members of the Asian/Pacific and (2) the record does not explicitly show that Rickerson’s words or actions were influenced by Sum’s race,” reasoning that the State’s position places an unjustified high burden on the allegedly seized person. The Court declined the “State’s invitation to presume that race and ethnicity are irrelevant unless proved otherwise.”
“Simply put,” the Court wrote, “a person’s race and ethnicity does not become relevant with media reports of targeted police discrimination or violence, nor does it become irrelevant in the temporary absence of such reports.” Moreover, the Court found, “[h]istory has shown that when courts create ‘crippling’ legal burdens to recognizing the constitutional rights of BIPOC, their lived experience are unjustly disregarded and their rights go unprotected.” Thus, the Court held that Sum’s race is relevant to its determination of when he was seized by Rickerson.
After reviewing the sequence of events leading up to Rickerson asking Sum to produce identification, the Court concluded that Sum was seized when he was asked to identify himself. The Court explained that, given the totality of the circumstances, “an objective observer could conclude that Sum was not free to refuse Deputy Rickerson’s request due to the deputy’s display of authority. At that point, Sum was seized.” Because the seizure was not supported by a warrant, reasonable suspicion, or any other legal authority, it was an unlawful seizure, and because the false information Sum provided was in response to the unlawful seizure, his false statements must be suppressed, the Court ruled. See State v. Mayfield, 434 P.3d 58 (Wash. 2019).
The Court distinguished Sum’s case from others in which the Washington Supreme Court has held a seizure does not occur simply because a police officer engages someone in a conversation in a public place and asks for identification because there were far more circumstances at play in Sum’s case. Specifically, Sum, a person of color, was asleep in his own car, parked on a public street. Rickerson did not inquire about Sum’s health or safety, and he did not ask either Sum or the passenger if they needed assistance. Rather, “the deputy asked what Sum and his passenger were doing, clearly implying that they did not belong there,” the Court stated.
Accordingly, the Court reversed the decision of the Court of Appeals and remanded the case back to the trial court for further proceedings consistent with this opinion. See: State v. Sum, 511 P.3d 92 (Wash. 2022) (en banc).
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