STATE v. WALKER, 101 Wn. App. 1 (2000)

999 P.2d 1296

No. 22808-4-II.The Court of Appeals of Washington, Division Two.
Filed: June 2, 2000.

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Pattie Mhoon, for appellant (appointed counsel for appeal).

John W. Ladenburg, Prosecuting Attorney, and John C. Hillman, Deputy, for respondent.

MORGAN, J.

The question in this appeal is whether a municipal court clerk can issue a warrant of arrest without judicial participation and without an authorizing provision of law. The answer is no.

On September 30, 1996, Walker was cited for consuming alcohol in a public park. He agreed in writing to appear within 15 days in the Tacoma Municipal Court. According to the trial court’s later finding of fact, “[t]he municipal court computerized records do not reflect that [Walker] appeared in court.”[1]

On November 7, 1996, a deputy clerk of the Municipal Court prepared a document titled “Administrative Warrant of Arrest.”[2] The warrant stated:

A complaint/information under oath or certification has been filed in this court, charging the defendant with the crimes hereon described.
Therefore, in the name of the State of Washington, you are commanded to arrest the defendant and keep the defendant in custody until the defendant is discharged according to law [.]”[3]

The stated “reason for issuance” was “failure to pay fine or

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appear,”[4] even though failure to appear is not a crime.[5]

The clerk issued the `administrative warrant of arrest’ without judicial participation. She did that by rubber-stamping a court commissioner’s facsimile signature on the warrant’s signature line. According to the superior court’s later findings of fact,

6. The clerk reviewed a group of files at one time by calling up a list of files from the computer, [and] checking the files a batch at a time.
7. The clerk’s office, particularly the warrant’s [sic] clerk, processed this batch analysis and issued the . . . administrative warrant of arrest on November 7, 1996.
8. The warrant [was] issued by the warrant’s [sic] officer after a check of the file.
9. There was no order signed by any municipal court judge authorizing the issuance of the warrant.
10. There was no order signed by any municipal court commissioner authorizing the issuance of a warrant.
11. There was no order authorizing the warrant clerk to attach the commissioner’s signature.[6]
12. There was no finding of probable cause by either a judge

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or a commissioner or clerk as to the failure to appear.
13. There is no order from the court to issue a bench warrant for the arrest of this defendant pursuant to CrRLJ 2.5.[7]

On November 14, 1996, police officers arrested Walker on the warrant. They lawfully searched his person and found cocaine. The next day, the State charged unlawful possession of a controlled substance.

On July 21, 1997, Walker moved to suppress the cocaine. He argued that “the warrant which was the basis for [his] arrest was invalid in that it was issued without any finding of probable cause by a neutral magistrate.”[8] After a hearing, the superior court concluded that even though “[t]here exists no municipal court statute that explicitly grants a municipal court clerk . . . authority to issue administrative warrants or place signature stamps of court commissioners on the administrative warrant,” “[t]he U.S. Supreme Court has endorsed the court’s implicit power to issue administrative warrants when the underlying allegations are of criminal conduct.”[9] The superior court denied the motion, and Walker later was convicted by a jury.

The issue on appeal is whether a clerk can order the issuance of a warrant of arrest without judicial participation. We consider (1) whether a warrant may issue only under “authority of law,” (2) whether the clerk acted under “authority of law,” and (3) whether suppression is the appropriate remedy.

I.
Washington Constitution, Article I, § 7, provides that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law.” When served, a warrant of arrest disturbs a person in his private affairs. Thus, a warrant of

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arrest shall not issue “without authority of law,” regardless of whether it is labelled an “administrative” warrant, an “arrest” warrant, a “bench” warrant, or something else.[10]

The Supreme Court has applied this reasoning to search warrants Seattle v. McCready (McCready I) holds that “in the absence of a specific authorizing statute or court rule,” a court may not constitutionally issue an administrative search warrant on less than probable cause.[11]
Likewise, City of Seattle v. McCready (McCready II) holds that in the absence of a specific authorizing statute or court rule, a court may not constitutionally issue an administrative search warrant even with
probable cause, at least where the reason for issuance is a non-criminal housing code violation.[12]

In this case, the municipal court issued an arrest warrant with, we will assume, probable cause to believe Walker had failed to appear. Failure to appear is not a crime. Accordingly, the arrest warrant had to be based on a specific authorizing statute, court rule, or, we will assume, municipal ordinance.

II.
The next question is whether the clerk in this case acted under authority of law. We cannot find a Washington statute that authorizes a clerk, as opposed to a judge or court commissioner, to order the issuance of a warrant of arrest. Nor can we find a Tacoma ordinance to that effect. Neither party cites such a statute or ordinance, and neither party attacks the superior court’s conclusion that no such provision exists. Court rules are the only other source from

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which such authority might come.

The State relies on CrRLJ 2.5, which we construe in the same manner as a statute.[13] That rule provides:

The court may order the issuance of a bench warrant for the arrest of any defendant who has failed to appear before the court, either in person or by a lawyer, in answer to a citation and notice, or an order of the court, upon which the defendant has promised in writing to appear, or of which the defendant has otherwise received notice to appear, if the sentence for the offense charged may include confinement in jail.

CrRLJ 2.5’s first two words, “the court,” are ambiguous. According to the State, those words mean the entire institution, which includes its clerks. According to Walker, those words mean the judge or court commissioner only. Since either meaning is plausible, we look for indications of intent.[14]

Walker argues that CrRLJ 2.5 should be read in light of other, closely related rules; that CrRLJ 2.2 is such a rule; and that CrRLJ 2.2 shows the words “the court” were intended to mean the judge or court commissioner only. When two closely related rules use the same word or words, it is reasonable to think that the same meaning was intended.[15]
CrRLJ 2.5 and CrRLJ 2.2 are closely related, for each deals with the issuance of arrest warrants. CrRLJ 2.2 clearly uses the words “the court” to mean the judge or

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court commissioner as opposed to, and not including, clerks. It provides:

(a) Issuance of Warrant of Arrest. If a complaint is filed and if the offense charged may be tried in the jurisdiction in which the warrant issues, and if the sentence for the offense charged may include confinement in jail, the court may direct the clerk to issue a warrant for the arrest of the defendant. . . .
(b) Issuance of Summons in Lieu of Warrant.
(1) Generally. If a complaint is filed, the court may direct the clerk to issue a summons. . . .
(2) When Summons Must Issue. If the complaint charges the commission of a misdemeanor or a gross misdemeanor, the court shall direct the clerk to issue a summons [unless the court finds facts not pertinent here].
(3) Summons for Felony Complaint. If the complaint charges the commission of a felony, the court may direct the clerk to issue a summons [unless the court finds facts not pertinent here].[16]

It would be incongruous to give the same words, “the court,” one meaning in one arrest warrant rule, and a markedly different meaning in another arrest warrant rule. If different meanings had been intended, different words would have been used.[17] Accordingly, it appears that the words “the court” were intended mean the judge or court commissioner.

In addition to CrRLJ 2.2, we find several other indications of intent. The first is the wording of CrRLJ 2.5 itself. It provides that “[t]he court may order the issuance of a bench warrant. . . .” Although the court as an institution may issue a warrant, the court as a person must order the issuance of a warrant. On its face, then, CrRLJ 2.5 manifests that “the court” is the judge or court commissioner, not the entire institution.

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A second indication of intent is Washington’s legal history. No Washington state statute has ever authorized clerks to order the issuance of arrest warrants without judicial oversight.[18] Nor did any Washington territorial statute, with one exception.[19] If CrRLJ 2.5 were intended to alter this long history, it surely would say so in language more explicit than that which it now uses.

A third indication of intent is the uncertainty that would result if “the court” were taken to mean the court as an institution, as opposed to the court as judge or commissioner. Would the court’s bailiff be authorized to order the issuance of a warrant? The judge’s secretary? If CrRLJ 2.5 were intended to authorize court employees other than a judge or a commissioner to order the issuance of arrest warrants, it would specify which employees.

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A fourth indication of intent is the importance of a judicial officer checking the work of the clerk who prepares warrants of arrest, and the relative ease with which a judicial officer can do that. The issuance of an arrest warrant is a serious matter both to the person it names and to the police who must serve it, even when the warrant is labelled “administrative.” The work of the clerk who prepares a proposed warrant can be checked and approved in only a moment or two by a judge or court commissioner. If CrRLJ 2.5 were intended to dispense with this significant and final safeguard, it would explicitly say so. Based on these indications of intent, we conclude that CrRLJ 2.5 uses the words “the court” to mean the judge or court commissioner.

This result is consistent with State v. Rice,[20] a case relied on by the State. The Rice court relied on the principle that “if the legislative intent or meaning of a statute is unclear, the meaning of doubtful words may be determined through their relationship to associated words and phrases.”[21] The Rice court applied this principle by construing a former jury statute (RCW 2.36.100) in light of two closely related statutes (RCW 2.36.095 and RCW 2.36.110) that indicated the words “the court” were intended to include clerks. We apply the same principle by construing CrRLJ 2.5 in light of CrRLJ 2.2; the latter rule indicates, as already discussed, that the words “the court” were not
intended to include clerks.

Although the Fourth Amendment is argued by both parties, it has nothing to do with our decision. It restricts state action,[22] but it does not authorize state action in the first instance.[23] As a consequence, it cannot provide the

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“authority of law” required by Article I, sec. 7.

We do not hold that Article I, sec. 7 precludes the state or even a city from adopting a statute, court rule, or ordinance that authorizes clerks to order the issuance of warrants of arrest.[24] We have no occasion to address that question, because there is no authorizing statute, court rule or ordinance in this case. We hold only that a clerk may not order the issuance of a warrant of arrest in the absence of an authorizing statute, court rule or ordinance.

III.
The last question is whether the foregoing violation of Article I, sec. 7, should be remedied by applying the exclusionary rule. As the State correctly points out, the United States Supreme Court would say no because of limitations it has placed on the exclusionary rule as a Fourth Amendment remedy.[25] The question here, however, is not the remedy for a Fourth Amendment violation, but rather the remedy for a violation of Article I, sec. 7. To date, the Washington Supreme Court has remedied all violations of Article I, sec. 7, by applying the exclusionary

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rule.[26] Indeed, it has declined even to consider limitations parallel to the federal ones[27] when, as here, the State has not raised the issue at the trial court level.[28] Accordingly, we conclude that the exclusionary rule applies here.

Reversed.

ARMSTRONG, C.J., concurs.

HUNT, J., dissenting.

I respectfully dissent. I disagree with the majority’s characterization of this case as involving a municipal court clerk’s issuance of a warrant of arrest “without judicial participation.” Here, the record is uncontroverted that although the court commissioner had signed no written order granting the court warrant clerk authority to use the commissioner’s stamp on FTA (Failure to Appear) warrants, the commissioner had verbally authorized this procedure for issuing arrest warrants 30 days after FTA’s for jailable offenses where the defendant had not paid a fine or otherwise responded in the interim.

I would also address the State’s argument on appeal that the arresting officers were entitled to “good faith” reliance on this warrant. Because the court below upheld the arrest warrant as legally issued, the State had no need to raise

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and to brief this argument until Walker filed his appeal.

I would affirm.

Review denied at 142 Wn.2d 1013 (2000).