No court in the state of Washington has concluded Field Sobriety Tests (FSTs) are a search, conversely no court has held they are not a search. Confusing? You betcha and this issue is argued all the time across courts in Washington.
Here is my take: FSTs are a search of an individual subject to an exception of the warrant requirement under the 4th Amendment of the United States Constitution. Why?
- Courts have held that a person does not have any requirement to submit to these requests to participate in FSTs. Looking at that conclusion from a common sense perspective leads me to believe (as I often argue) that FSTs are in fact a search which would be subject to a warrant, absent consent of the individual or another exception (not exigent circumstances however as I believe Missouri v. McNeely and the Gauthier decision have clearly knocked that argument on its face).
- In Washington State, Article I Section 7 of our State Constitution affords individuals greater protection to be free from unreasonable searches than that of the 4th Amendment to the US Constitution. Now, since courts have upheld that a person has a right to refuse these tests (City of Seattle v. Personeus and City of Seattle v. Stalsbroten for example) then that infers the officer/trooper/deputy does not have any right, as they might under what is called a Terry stop (see, Terry v. Ohio), to stop and frisk an individual based upon the officer's belief that weapons or contraband might be present. However, that Terry stop doesn't afford the officer the opportunity to further search them absent an exception to the warrant requirement.
I recently had a prosecutor argue to the court that the exigency exception (immediate disposal, destruction or dissipation of evidence) allows for the refusal of FSTs to be presented as evidence of a guilty conscious. That argument is laughable. In that scenario what the prosecutor is telling the court is this, "judge, since officers can't get someone to consent to a search via FSTs, they should be allowed to just make them do it under this exception!" Can you imagine an officer forcibly pushing you up and down a line to do a walk and turn test or holding out your leg to do the one leg stand or worse, forcing your eyes to move on a horizontal plane for the horizontal gaze nystagmus test. It is comical to think prosecutors really present this argument to judges, but I have seen it time and again and it is just dead wrong! No court has ever held officers have a right to force someone to participate in FSTs. Therefore, viola! FSTs are a search requiring consent. Now I have already blogged about whether a Refusal to participate in these FSTs can be used against you and in that instance a judge at the King County District Court held, correctly, they could not. Why all judges can't see this common sense approach is beyond me, but I will continue to argue it.
The plain and simple truth is, if you have had anything to drink, in my opinion, you are better off not participating in FSTs!