05/23/2008

Wash. court makes pat-downs harder

The Associated Press

OLYMPIA, Wash. — In another nod to the Washington Constitution’s broad privacy protections, the state Supreme Court has thrown out the drug conviction of a man who was searched by police solely because of his weird behavior.

Thursday’s unanimous decision reinforces the rules for simple pat-downs under state law, which offers stronger safeguards against police searches than the U.S. Constitution.

Without a search warrant or probable cause to make an arrest, police in Washington may frisk someone for weapons only if an officer has reason to believe the person is armed and dangerous.

The court said those rules weren’t followed in the case of Michael D. Setterstrom, who was arrested in 2005 after police got a call about two men behaving oddly at a Department of Social and Health Services office in Tumwater.

When two officers showed up at the office, Setterstrom was sitting on a bench, filling out an application for public assistance. He was sitting next to another man, who was asleep.

Setterstrom, described as increasingly nervous and fidgety, gave two different names to the officers when questioned. Setterstrom also blurted out the second name when police woke his companion to ask about Setterstrom’s true identity.

Believing Setterstrom was high on methamphetamine, Lt. Don Stevens frisked him for possible weapons.

Although Setterstrom didn’t stand up, put his hands in his pockets or do anything threatening, Stevens said he feared danger because his experience was that meth users may become violent without warning.

The pat-down uncovered a small plastic baggie of white powder in Setterstrom’s pocket. Stevens put the baggie on the bench and told Setterstrom he was under arrest.

“What happened next was, we assume, unusual,” the court said: Setterstrom fell to his knees, grabbed the baggie and swallowed it. “For obvious reasons, police never recovered the baggie,” Justice James Johnson wrote for the court.

Police also found a small, locked safe in Setterstrom’s backpack. After getting a search warrant, police opened the safe and found another baggie of meth, along with a needle, a pipe, and a scale. Setterstrom was convicted of drug possession and sentenced to six months in jail.

He appealed, claiming the search was illegal. The Supreme Court agreed.

To frisk someone without a warrant or probable cause for an arrest, police must have “a reasonable belief, based on objective facts, that the suspect is armed and presently dangerous.”

The court said that justification didn’t exist in Setterstrom’s case. In fact, justices said, the record shows only that Setterstrom may have been high – and that isn’t a crime.

Furthermore, police didn’t find Setterstrom “in a dark alley in a crime-ridden area,” the court said. Rather, he was lawfully in the public area of a social services office, filling out a form for government benefits.

“It seems likely that some people filling out benefits forms exhibit erratic behavior, making employment difficult and benefits applicable,” the court said.

Since the search warrant for the safe in Setterstrom’s backpack was based on the illegal pat-down, his conviction for the drugs within must be overturned, the court ruled.

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