State v. Sum

Wash Const. art I, § 7 (“No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”)

Without a warrant or reasonable suspicion of criminal conduct, a county sheriff’s deputy approached Palla Sum, who appeared to be sleeping or unconscious inside of a parked car. Upon waking up, Sum told the deputy that he and his passenger were waiting for a friend. When the deputy asked for identification, Sum asked why before providing a false name. The deputy’s justification was “that the two men were sitting in an area known for stolen vehicles and that [Sum] did not appear to know to whom the vehicle he was sitting in belonged.” When the deputy returned to his vehicle to check the provided names, Sum drove away, and the deputy pursued until Sum crashed in someone’s front yard. After a search of Sum, police discovered that the car did in fact belong to him. They also found a holster on Sum’s person and a pistol in the car.

Sum was charged with unlawful possession of a firearm, among other charges, and filed a pretrial motion to suppress the evidence gathered, claiming that he was unlawfully “seized” when the deputy asked for his identification and implied that he was under suspicion for car theft.

The deputy unlawfully seized Sum in violation of the Washington state constitution. To determine whether a person is “seized” by police, the race and ethnicity of the person, including how racial stereotypes may have affected the encounter, are part of the relevant “circumstances” to consider. The test assumes that an “objective observer” of a police encounter “is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in disproportionate police contacts, investigative seizures, and uses of force against Black, Indigenous, and other People of Color (BIPOC) in Washington.”

Under both the federal Fourth Amendment and the Washington state analog, article I, Section 7 of the state constitution, a person is “seized” by law enforcement when, based on an objective view of all surrounding circumstances, that person’s “freedom of movement is restrained and the individual would not believe [they are] free to leave ro decline a request due to an officer’s use of force or display of authority.”

Here, the prosecutors conceded that, in general, the state constitutional test should include consideration of the person’s race and ethnicity as among the relevant “circumstances,” and the court agreed. In particular, the court noted how it previously recognized the pernicious role of both intentional and implicit racial bias in protecting rights to an impartial jury (see State v. Jefferson, 429 P.3d 467 (Wash. 2018)); identifying prosecutor misconduct (see State v. Monday, 680, 257 P.3d 551 (Wash. 2011)); and striking down capital punishment (see State v. Gregory, 427 P.3d 621 (2018)). “It would be nonsensical,” the court said, “to hold that a person’s race and ethnicity, though clearly relevant to the important trial rights discussed above, are irrelevant to the question of how the person was brought into the criminal justice system in the first place.”

Next, the court found that Sum’s race was relevant in this case. In doing so, the court made clear that citing race as a factor in police encounters does not depend on recent “media reports of targeted police discrimination or violence,” nor does it require claimants to “produce statistics showing precisely how their race and ethnicity should be factored” into the analysis.

Finally, the court found that Sum was seized in this case: based “on the totality of the circumstances, an objective observer could easily conclude that if Sum had refused to identify himself and requested to be left alone, [the deputy] would have failed to honor Sum’s request because the deputy was investigating Sum for car theft. In other words, an objective observer could conclude that Sum was not free to refuse [the deputy’s] request due to the deputy’s display of authority. At that point, Sum was seized. As the State correctly concedes, this seizure was not supported by a warrant, reasonable suspicion, or any other authority of law.”