Sidestepping the Fourth Amendment

In the State of Washington back in 1989, a young woman named Amanda Stavik was abducted raped, and murdered. Her body was discovered several days later. A surprising crime for the rural area where it occurred.

The case sat unsolved for nearly two decades until police were to make a break in the case, leading to the arrest and eventual conviction of Timothy Bass in 2019. During the trial was an evidentiary suppression hearing regarding DNA collected from a discarded cup and soda can.

It is long-settled law that anything discarded in trash in a dumpster or trash receptacle outside a home or place of business is fair game to police, and the Fourth Amendment is no protection. But the cup and soda can were collected from a trash can inside Bass’s place of employment. And not by law enforcement, but by his boss, Kim Wagner.

Hence the suppression hearing.

In 2009, Detective Kevin Bowhay reopened the investigation into Stavik’s murder. Timothy Bass was identified as a suspect, and in 2013 he requested that Bass voluntarily provide a DNA sample, to which Bass refused, demanding a warrant. (Note to you, dear Reader: never voluntarily provide anything to law enforcement.) Without the DNA sample positively linking Bass to Stavik, and no other physical evidence to link Bass to Stavik’s murder, Bass remained free from arrest.

Bowhay turned his attention to Bass’s employer: Franz Bakery. Bass worked as a truck driver for them, and Bowhay reached out Bass’s manager, Kim Wagner, with the intent of swabbing vehicles for any DNA. At that time, Bowhay did not tell Wagner they were specifically investigating Timothy Bass. Wagner said the detective would need to reach out to their corporate office, who did refuse to consent.

In May 2017 is when Wagner learned Bowhay was specifically after Bass when Bowhay asked Wagner for Bass’s delivery route with the intent of surveilling him, hoping for Bass to discard something with his DNA on it. He then informed Wagner that Bass did not discard anything.

Wagner then informed Bowhay that she would collect something from the employee break room. Bowhay’s response was simply “okay”, following up with the all-important words that he was not asking her to do anything. Why are those words important? We’ll get to that in a moment. Wagner was able to collect the aforementioned soda can and cup, turned it over to investigators who were able to recover DNA from it, which was a positive match for the DNA collected from Stavik’s body in 1989.

With that evidence, Bass was arrested, tried, and convicted of Stavik’s murder. Bass appealed his conviction, saying the motion to suppress the DNA evidence should have been granted. And the Court of Appeals for the State of Washington, Division I, recently affirmed the denial of the motion and, in turn, affirmed the conviction.1State of Washington v. Timothy Bass, Case No. 80156-2

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One very important principle of law in the United States boils down to simply that a government agent cannot request or command a private citizen to do that which the agent is not authorized to do under the law. When it comes to the Fourth Amendment and the protection against a warrant-less search, this means simply that law enforcement cannot request a private citizen collect evidence they cannot otherwise obtain without a warrant or probable cause.

The question at hand with the case against Timothy Bass, however, is whether the Fourth Amendment protects you when a private citizen hands over that evidence of their own volition. Generally the answer is No.

But also at issue in Timothy Bass’s case are two details I feel are very important and, I feel, should’ve resulted in the DNA evidence being suppressed. First, Bowhay informed Kim Wagner, Bass’s boss, that he was not able to collect any discarded items along Bass’s delivery route after also informing Wagner that he was looking to collect DNA. Without that information, I argue that Wagner would never have volunteered to collect any discarded items from the employee break room.

Second, but of lesser importance, was Bowhay informing Wagner that Bass was being investigated as a suspect in Amanda Stavik’s murder.

Now the Court of Appeals determined that being tipped off to the investigation and what specifically Bowhay was looking for was not enough to make Wagner an “agent” of the government under the Washington Constitution. And my question is simply: why not?

Why is it enough for the sworn officer to say “I’m not going to direct you to do that” knowing the officer is about to receive that which the officer cannot obtain via warrant with probable cause? The police should not have been able to accept that evidence in the first place. Wagner completely sidestepped the detective’s efforts in finding DNA evidence. Wagner knew what Bowhay was after because he told her. Even if he didn’t direct her to get the evidence for him, and explicitly said he was not going to direct her, that he informed her of what he was looking for should be enough to get the evidence suppressed under the Fourth Amendment.

The detective shouldn’t be able to escape the Fourth Amendment by merely saying something along the lines of “I’m not going to tell you to do that”. The detective should have told her to NOT get it in the first place, and should’ve turned away the soda can and cup when it was given to them. A detective should not be able to tell what evidence they seek to someone with access to that evidence and then get around the Fourth Amendment by saying “I’m not going to tell you to do that” when the person they told says they’ll get them that evidence.

Detective Bowhay I feel knew that Wagner would get the evidence for him, and that is why he told Wagner what he was after, and told her that he was not able to obtain it himself.

And that he told Wagner what he was after, knowing she had access to what he needed, should be enough to get the evidence Wagner provided suppressed under the Fourth Amendment.