Chapter 10.79 RCW

SEARCHES AND SEIZURES

Sections

10.79.015Other grounds for issuance of search warrant.
10.79.020To whom directedContents.
10.79.035Issuance of search warrants by magistrates.
10.79.040Search without warrant unlawfulPenalty.
10.79.050Restoration of stolen property to ownerDuties of officers.
10.79.060Strip, body cavity searchesLegislative intent.
10.79.070Strip, body cavity searchesDefinitions.
10.79.080Strip, body cavity searchesWarrant, authorization, report.
10.79.090Strip, body cavity searchesMedical care not precluded.
10.79.100Strip, body cavity searchesStandards for conducting.
10.79.110Strip, body cavity searchesActions for damages, injunctive relief.
10.79.120Strip, body cavity searchesApplication of RCW 10.79.130 through 10.79.160.
10.79.130Strip, body cavity searchesWarrant requiredExceptions.
10.79.140Strip, body cavity searchesUncategorized searchesDetermination of reasonable suspicion, probable causeLess-intrusive alternatives.
10.79.150Strip, body cavity searchesWritten record required, contentsUnnecessary persons prohibited.
10.79.160Strip, body cavity searchesPhysical examinations for public health purposes excluded.
10.79.170Strip, body cavity searchesNonliability when search delayed.

NOTES:

Rules of court: Search and seizureCrR 2.3; CrRLJ 2.3.
Alcoholic beverage control, search and seizure: Chapter 66.32 RCW.
Controlled substances, search and seizure: RCW 69.50.509.


Other grounds for issuance of search warrant.

Any such magistrate, when satisfied that there is reasonable cause, may also, upon like complaint made on oath, issue search warrant in the following cases, to wit:
(1) To search for and seize any counterfeit or spurious coin, or forged instruments, or tools, machines or materials, prepared or provided for making either of them.
(2) To search for and seize any gaming apparatus used or kept, and to be used in any unlawful gaming house, or in any building, apartment or place, resorted to for the purpose of unlawful gaming.
(3) To search for and seize any evidence material to the investigation or prosecution of any homicide or any felony: PROVIDED, That if the evidence is sought to be secured from any radio or television station or from any regularly published newspaper, magazine or wire service, or from any employee of such station, wire service or publication, the evidence shall be secured only through a subpoena duces tecum unless: (a) There is probable cause to believe that the person or persons in possession of the evidence may be involved in the crime under investigation; or (b) there is probable cause to believe that the evidence sought to be seized will be destroyed or hidden if subpoena duces tecum procedures are followed. As used in this subsection, "person or persons" includes both natural and judicial persons.
(4) To search for and seize any instrument, apparatus or device used to obtain telephone or telegraph service in violation of RCW 9.26A.110 or 9.26A.115.
[ 2003 c 53 § 94; 1980 c 52 § 1; 1972 ex.s. c 75 § 2; 1969 c 83 § 1; 1949 c 86 § 1; Code 1881 § 986; 1873 p 216 § 154; 1854 p 101 § 2; Rem. Supp. 1949 § 2238. Formerly RCW 10.79.010, part.]

NOTES:

IntentEffective date2003 c 53: See notes following RCW 2.48.180.



To whom directedContents.

All such warrants shall be directed to the sheriff of the county, or his or her deputy, or to any constable of the county, commanding such officer to search the house or place where the stolen property or other things for which he or she is required to search are believed to be concealed, which place and property, or things to be searched for shall be designated and described in the warrant, and to bring such stolen property or other things, when found, and the person in whose possession the same shall be found, before the magistrate who shall issue the warrant, or before some other magistrate or court having cognizance of the case.
[ 2010 c 8 § 1061; Code 1881 § 969; 1873 p 216 § 155; 1854 p 101 § 3; RRS § 2239.]



Issuance of search warrants by magistrates.

(1) Any magistrate as defined by RCW 2.20.010, when satisfied that there is probable cause, may[,] upon application supported by oath or affirmation, issue a search warrant to search for and seize any: (a) Evidence of a crime; (b) contraband, the fruits of crime, or things otherwise criminally possessed; (c) weapons or other things by means of which a crime has been committed or reasonably appears about to be committed; or (d) person for whose arrest there is probable cause or who is unlawfully restrained.
(2) The application may be provided or transmitted to the magistrate by telephone, email, or any other reliable method.
(3) If the magistrate finds that probable cause for the issuance of a warrant exists, the magistrate must issue a warrant or direct an individual whom the magistrate authorizes to affix the magistrate's signature to a warrant identifying the property or person and naming or describing the person, place, or thing to be searched. The magistrate may communicate permission to affix the magistrate's signature to the warrant by telephone, email, or any other reliable method.
(4) The evidence in support of the finding of probable cause and a record of the magistrate's permission to affix the magistrate's signature to the warrant shall be preserved and shall be filed with the issuing court as required by CrRLJ 2.3 or CrR 2.3.

NOTES:

FindingIntent2014 c 93: See note following RCW 2.20.030.



Search without warrant unlawfulPenalty.

(1) It shall be unlawful for any police officer or other peace officer to enter and search any private dwelling house or place of residence without the authority of a search warrant issued upon a complaint as by law provided.
(2) Any police officer or other peace officer violating the provisions of this section is guilty of a gross misdemeanor.
[ 2010 c 8 § 1062; 2003 c 53 § 95; 1921 c 71 § 1; RRS § 2240-1. FORMER PART OF SECTION: 1921 c 71 § 2; RRS § 2240-2, now codified as RCW 10.79.045.]

NOTES:

IntentEffective date2003 c 53: See notes following RCW 2.48.180.



Restoration of stolen property to ownerDuties of officers.

All property obtained by larceny, robbery or burglary, shall be restored to the owner; and no sale, whether in good faith on the part of the purchaser or not, shall divest the owner of his or her rights to such property; and it shall be the duty of the officer who shall arrest any person charged as principal or accessory in any robbery or larceny, to secure the property alleged to have been stolen, and he or she shall be answerable for the same, and shall annex a schedule thereof to his or her return of the warrant.
[ 2010 c 8 § 1063; Code 1881 § 851; 1873 p 192 § 57; 1854 p 84 § 51; RRS § 2129.]



Strip, body cavity searchesLegislative intent.

It is the intent of the legislature to establish policies regarding the practice of strip searching persons booked into holding, detention, or local correctional facilities. It is the intent of the legislature to restrict the practice of strip searching and body cavity searching persons booked into holding, detention, or local correctional facilities to those situations where such searches are necessary.

NOTES:

Effective date1983 1st ex.s. c 42: "This act is necessary for the immediate preservation of the public peace, health, and safety, the support of the state government and its existing public institutions, and shall take effect on July 1, 1983." [ 1983 1st ex.s. c 42 § 10.]
Severability1983 1st ex.s. c 42: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [ 1983 1st ex.s. c 42 § 9.]



Strip, body cavity searchesDefinitions.

Unless the context clearly requires otherwise, the definitions in this section apply throughout RCW 10.79.060 through 10.79.110.
(1) "Strip search" means having a person remove or arrange some or all of his or her clothing so as to permit an inspection of the genitals, buttocks, anus, or undergarments of the person or breasts of a female person.
(2) "Body cavity search" means the touching or probing of a person's body cavity, whether or not there is actual penetration of the body cavity.
(3) "Body cavity" means the stomach or rectum of a person and the vagina of a female person.
(4) "Law enforcement agency" and "law enforcement officer" include local departments of corrections created pursuant to *RCW 70.48.090(3) and employees thereof.

NOTES:

*Reviser's note: RCW 70.48.090 was amended by 2007 c 13 § 1, changing subsection (3) to subsection (4).
Effective dateSeverability1983 1st ex.s. c 42: See notes following RCW 10.79.060.



Strip, body cavity searchesWarrant, authorization, report.

(1) No person may be subjected to a body cavity search by or at the direction of a law enforcement agency unless a search warrant is issued pursuant to superior court criminal rules.
(2) No law enforcement officer may seek a warrant for a body cavity search without first obtaining specific authorization for the body cavity search from the ranking shift supervisor of the law enforcement authority. Authorization for the body cavity search may be obtained electronically.
(3) Before any body cavity search is authorized or conducted, a thorough pat-down search, a thorough electronic metal-detector search, and a thorough clothing search, where appropriate, must be used to search for and seize any evidence of a crime, contraband, fruits of crime, things otherwise criminally possessed, weapons, or other things by means of which a crime has been committed or reasonably appears about to be committed. No body cavity search shall be authorized or conducted unless these other methods do not satisfy the safety, security, or evidentiary concerns of the law enforcement agency.
(4) A law enforcement officer requesting a body cavity search shall prepare and sign a report regarding the body cavity search. The report shall include:
(a) A copy of the written authorization required under subsection (2) of this section;
(b) A copy of the warrant and any supporting documents required under subsection (1) of this section;
(c) The name and sex of all persons conducting or observing the search;
(d) The time, date, place, and description of the search; and
(e) A statement of the results of the search and a list of any items removed from the person as a result of the search.
The report shall be retained as part of the law enforcement agency's records.

NOTES:

Effective dateSeverability1983 1st ex.s. c 42: See notes following RCW 10.79.060.



Strip, body cavity searchesMedical care not precluded.

Nothing in RCW 10.79.080 or this section may be construed as precluding or preventing the administration of medical care to persons requiring immediate medical care or requesting medical care.

NOTES:

Effective dateSeverability1983 1st ex.s. c 42: See notes following RCW 10.79.060.



Strip, body cavity searchesStandards for conducting.

(1) Persons conducting a strip search shall not touch the person being searched except as reasonably necessary to effectuate the strip search of the person.
(2) Any body cavity search must be performed under sanitary conditions and conducted by a physician, registered nurse, or physician's assistant, licensed to practice in this state, who is trained in the proper medical process and the potential health problems associated with a body cavity search. No health professional authorized by this subsection to conduct a body cavity search shall be held liable in any civil action if the search is conducted in a manner that meets the standards and requirements of RCW 4.24.290 and 7.70.040.
(3) Except as provided in subsection (7) of this section, a strip search or body cavity search, as well as presearch undressing or postsearch dressing, shall occur at a location made private from the observation of persons not physically conducting the search. A strip search or body cavity search shall be performed or observed only by persons of the same sex as the person being searched, except for licensed medical professionals as required by subsection (2) of this section.
(4) Except as provided in subsection (5) of this section, no person may be present or observe during the search unless the person is necessary to conduct the search or to ensure the safety of those persons conducting the search.
(5) Nothing in this section prohibits a person upon whom a body cavity search is to be performed from having a readily available person of his or her choosing present at the time the search is conducted. However, the person chosen shall not be a person being held in custody by a law enforcement agency.
(6) RCW 10.79.080 and this section shall not be interpreted as expanding or diminishing the authority of a law enforcement officer with respect to searches incident to arrest or investigatory stop in public.
(7) A strip search of a person housed in a holding, detention, or local correctional facility to search for and seize a weapon may be conducted at other than a private location if there arises a specific threat to institutional security that reasonably requires such a search or if all persons in the facility are being searched for the discovery of weapons or contraband.

NOTES:

Effective dateSeverability1983 1st ex.s. c 42: See notes following RCW 10.79.060.



Strip, body cavity searchesActions for damages, injunctive relief.

(1) A person who suffers damage or harm as a result of a violation of RCW 10.79.080, 10.79.090, 10.79.100, or 10.79.130 through 10.79.170 may bring a civil action to recover actual damages sustained by him or her. The court may, in its discretion, award injunctive and declaratory relief as it deems necessary.
(2) RCW 10.79.080, 10.79.090, 10.79.100, and 10.79.130 through 10.79.170 shall not be construed as limiting any constitutional, common law, or statutory right of any person regarding any action for damages or injunctive relief, or as precluding the prosecution under another provision of law of any law enforcement officer or other person who has violated RCW 10.79.080, 10.79.090, 10.79.100, or 10.79.130 through 10.79.170.

NOTES:

Effective dateSeverability1983 1st ex.s. c 42: See notes following RCW 10.79.060.



Strip, body cavity searchesApplication of RCW 10.79.130 through 10.79.160.

RCW 10.79.130 through 10.79.160 apply to any person in custody at a holding, detention, or local correctional facility, other than a person committed to incarceration by order of a court, regardless of whether an arrest warrant or other court order was issued before the person was arrested or otherwise taken into custody unless the court issuing the warrant has determined that the person shall not be released on personal recognizance, bail, or bond. RCW 10.79.130 through 10.79.160 do not apply to a person held for post-conviction incarceration for a criminal offense. The definitions and remedies provided by RCW 10.79.070 and 10.79.110 apply to RCW 10.79.130 through 10.79.160.



Strip, body cavity searchesWarrant requiredExceptions.

(1) No person to whom this section is made applicable by RCW 10.79.120 may be strip searched without a warrant unless:
(a) There is a reasonable suspicion to believe that a strip search is necessary to discover weapons, criminal evidence, contraband, or other thing concealed on the body of the person to be searched, that constitutes a threat to the security of a holding, detention, or local correctional facility;
(b) There is probable cause to believe that a strip search is necessary to discover other criminal evidence concealed on the body of the person to be searched, but not constituting a threat to facility security; or
(c) There is a reasonable suspicion to believe that a strip search is necessary to discover a health condition requiring immediate medical attention.
(2) For the purposes of subsection (1) of this section, a reasonable suspicion is deemed to be present when the person to be searched has been arrested for:
(a) A violent offense as defined in RCW 9.94A.030 or any successor statute;
(b) An offense involving escape, burglary, or the use of a deadly weapon; or
(c) An offense involving possession of a drug or controlled substance under chapter 69.41, 69.50, or 69.52 RCW or any successor statute.



Strip, body cavity searchesUncategorized searchesDetermination of reasonable suspicion, probable causeLess-intrusive alternatives.

(1) A person to whom this section is made applicable by RCW 10.79.120 who has not been arrested for an offense within one of the categories specified in RCW 10.79.130(2) may nevertheless be strip searched, but only upon an individualized determination of reasonable suspicion or probable cause as provided in this section.
(2) With the exception of those situations in which reasonable suspicion is deemed to be present under RCW 10.79.130(2), no strip search may be conducted without the specific prior written approval of the jail unit supervisor on duty. Before any strip search is conducted, reasonable efforts must be made to use other less-intrusive means, such as pat-down, electronic metal detector, or clothing searches, to determine whether a weapon, criminal evidence, contraband, or other thing is concealed on the body, or whether a health condition requiring immediate medical attention is present. The determination of whether reasonable suspicion or probable cause exists to conduct a strip search shall be made only after such less-intrusive means have been used and shall be based on a consideration of all information and circumstances known to the officer authorizing the strip search, including but not limited to the following factors:
(a) The nature of the offense for which the person to be searched was arrested;
(b) The prior criminal record of the person to be searched; and
(c) Physically violent behavior of the person to be searched, during or after the arrest.



Strip, body cavity searchesWritten record required, contentsUnnecessary persons prohibited.

(1) A written record of any strip search shall be maintained in the individual file of each person strip searched.
(2) With respect to any strip search conducted under RCW 10.79.140, the record shall contain the following information:
(a) The name of the supervisor authorizing the strip search;
(b) The specific facts constituting reasonable suspicion to believe that the strip search was necessary;
(c) The name and serial number of the officer conducting the strip search and of all other persons present or observing during any part of the strip search;
(d) The time, date, and place of the strip search; and
(e) Any weapons, criminal evidence, contraband, or other thing, or health condition discovered as a result of the strip search.
(3) With respect to any strip search conducted under RCW 10.79.130(2), the record shall contain, in addition to the offense or offenses for which the person searched was arrested, the information required by subsection (2)(c), (d), and (e) of this section.
(4) The record may be included or incorporated in existing forms used by the facility, including the booking form required under the Washington Administrative Code. A notation of the name of the person strip searched shall also be entered in the log of daily activities or other chronological record, if any, maintained pursuant to the Washington Administrative Code.
(5) Except at the request of the person to be searched, no person may be present or observe during the strip search unless necessary to conduct the search.



Strip, body cavity searchesPhysical examinations for public health purposes excluded.

Physical examinations conducted by licensed medical professionals solely for public health purposes under separate statutory authority shall not be considered searches for purposes of RCW 10.79.120, 10.79.130, and 10.79.140.



Strip, body cavity searchesNonliability when search delayed.

No governmental entity and no employee or contracting agent of a governmental entity shall be liable for injury, death, or damage caused by a person in custody when the injury, death, or damage is caused by or made possible by contraband that would have been discovered sooner but for the delay caused by having to seek a search warrant under RCW 10.79.080 or 10.79.130 through 10.79.160.