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Washington Law Review

Abstract

The Fourth Amendment to the U.S. Constitution and Article I, Section 7 of the Washington Constitution generally require a warrant supported by probable cause to conduct a search or seizure. One exception to these requirements is a search incident to arrest, which permits the police to search arrested persons and the area within the arrestee's reach for weapons and evidence. Prior to State v. Parker, when police arrested an occupant of an automobile in Washington, they could search the entire passenger compartment of the vehicle with the exception of locked containers. In State v. Parker, a plurality of the Supreme Court of Washington declared that during the search of an automobile incident to arrest police may not search the belongings of individuals who are not arrested, The Parker plurality would not permit police to search a container they know or should know is owned by a nonarrested individual unless they have reasonable suspicion that the container holds a weapon or evidence of crime. This Note argues that the Parker plurality deviates from state and federal precedent by (1) using ownership instead of access to immunize items from search, (2) concluding that vehicle passengers have an increased level of privacy protection under the Washington Constitution, and (3) characterizing a search incident to arrest as a Terry search. This Note concludes that the plurality's failure to follow precedent and inability to formulate a clear majority rule will confuse lower courts and endanger officers by preventing them from searching any item in a car that may contain a weapon.

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