State v. Klinker

537 P.2d 268, 85 Wash. 2d 509, 1975 Wash. LEXIS 900

• Court: Washington Supreme Court
• Decided: June 12, 1975
• Docket: 43172
• Status: Published

Opinions

Utter, J.

This is an appeal by the state from an order of the King County Superior Court dismissing a filiation suit it brought pursuant to RCW 26.24 against Jeffery Lawrence Klinker. The dismissal was based on the trial court’s finding that RCW 26.24.010 and 26.24.020, under which respondent Klinker was arrested to commence this action, are unconstitutional under the due process principles of Sniadach v. Family Fin. Corp., 395 U.S. 337, 23 L. Ed. 2d 349, 89 S. Ct. 1820 (1969). We affirm the trial court’s judgment, primarily on the basis of our determination that the arrest procedure established by the challenged statutes violates the Fourth Amendment requirements that arrests be reasonable and that arrest warrants issue only after an independent finding of probable cause by a detached judicial officer.

On June 26,1973, a verified complaint was filed in Seattle District Court, alleging that respondent Klinker was the father of an illegitimate child born on July 2, 1971. On the same day a warrant for Klinker’s arrest was issued pursuant to RCW 26.24.010.¹ Three days later he was arrested and booked into King County jail, and then released on his own recognizance upon his promise to appear on July 10, 1973, for the hearing required by RCW 26.24.020.² He did appear and the hearing was held and the case bound over to the superior court for trial. There he successfully moved to dismiss the complaint before trial on the merits on the grounds that the procedures by which he had been brought into court were unconstitutional. This appeal followed.

I

The trial court’s judgment, and the parties’ arguments on appeal, focused on the constitutionality of the arrest provisions of the filiation statutes in light of a line of United States Supreme Court decisions beginning with Sniadach v. Family Fin. Corp., supra. These cases deal with the requirements of the due process clauses of the Fifth and Fourteenth Amendments with regard to summary seizures of property by creditors through various judicial devices which do not afford the owner of the property an opportunity to be heard before being so deprived.

In Sniadach, a Wisconsin prejudgment garnishment statute that permitted wages to be attached by a note creditor without a prior judicial determination of liability was struck down as permitting deprivations of property without due process. In Fuentes v. Shevin, 407 U.S. 67, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972), the court reaffirmed and extended Sniadach in invalidating several statutes which allowed ex parte replevin orders to issue without notice or a prior hearing. Fuentes held that notice and a hearing were constitutionally prerequisite to state-authorized seizures of property rights of any sort, absent a judicial determination that extraordinary circumstances exist justifying temporary seizure without such a hearing. Two years later, however, in Mitchell v. W.T. Grant Co., 416 U.S. 600, 40 L. Ed. 2d 406, 94 S. Ct. 1895 (1974), the court upheld a Louisiana sequestration procedure which allowed summary seizure of property after an ex parte showing of the validity of the claim but which guaranteed an opportunity for a hearing promptly after the seizure to contest it. Although the majority opinion emphasized that it upheld the process only under the particular circumstances presented by the case before it,³ the concurring and dissenting opinions argued that the decision amounted to an overruling of Fuentes’ general prior hearing requirement. See Mitchell v. W.T. Grant Co., supra at 623 (Powell, J., concurring), at 634 (Stewart, J., dissenting). But then in North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 42 L. Ed. 2d 751, 95 S. Ct. 719 (1975), the court again struck down a summary garnishment procedure which afforded neither a prior contested hearing nor an independent ex parte determination by a judge of a need for immediate attachment. Justice Stewart announced that Fuentes was not overruled after all, while Justice Powell, concurring, maintained that it was and attempted to distinguish Mitchell. North Georgia Finishing, Inc. v. Di-Chem, Inc., supra at 608.

The upshot of these shifting currents in the Supreme Court is apparently that due process requires a hearing before property is seized, and that that hearing must either include notice and the opportunity to appear being given the person subjected to the seizure or must involve an ex parte finding by a judicial officer of a right to and a special need for summary seizure or attachment subject to prompt later contest. Under such a rule, the statutes before us, which neither provide for a prior contested hearing nor allow independent judicial determination of the existence of cause to arrest, cannot stand.

We do not rest our decision in this case solely on this ground, however, for two reasons. First, the repeated shifts in the court’s position from case to case in this area, with the Justices themselves unable to agree as to which of their decisions are still in force and which have been overruled, make any pronouncement of the law tentative at best. Second, the application of the due process principles of these cases to the one before us is considerably complicated by the numerous differences between the types of statutes and cases involved. All the Supreme Court’s cases, from Sniadach to North Georgia Finishing, involved seizures of property, whereas this case concerns the arrest of a person; those cases reviewed actions by state agents or courts on behalf of private plaintiffs, while this one involves litigation in which the State is a party and its interests are independently significant; the primary question in those cases was what can or cannot be done before a party defendant first appears in court, while the issue before us here is the propriety of the means by which he is brought into court. In such a readily distinguishable context, application of the “rule” of the Supreme Court’s cases approaches pure speculation.

Thus, although the decision below and the argument here was limited to the due process issue, we choose to rely primarily on the more solid and certain grounds for upholding the decision of the trial court⁴ which can' be found in the Fourth Amendment’s restrictions on unreasonable searches and seizures.

II

The statutes challenged here, and the actions taken under them to which respondent objects, fall directly within the scope of the constitutional prohibition of unreasonable searches and seizures. Respondent Klinker was arrested: his person was seized within the meaning of the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 10, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The fact that his arrest was part of a civil, rather than criminal, proceeding (State v. Mottet, 73 Wn.2d 114, 437 P.2d 187 (1968)) does not make the amendment any less applicable. The purpose for which a person is arrested does not alter the fact that a seizure subject to constitutional scrutiny has taken place. Cupp v. Murphy, 412 U.S. 291, 294, 36 L. Ed. 2d 900, 93 S. Ct. 2000 (1973); Davis v. Mississippi, 394 U.S. 721, 726-27, 22 L. Ed. , 89 S. Ct. 1394 (1969); Terry v. Ohio, supra at 19. “[T]he essential element is the physical restraint placed upon the person, not the purpose behind the restraint.” Bacon v. United States, 449 F.2d 933, 942 (9th Cir. 1971). Although the central province of Fourth Amendment jurisprudence is the criminal law, the constitutional language itself draws no distinction between governmental intrusions on liberty or property during criminal investigations and those in other circumstances. Rather, it states simply that

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Accordingly, the amendment’s restrictions have repeatedly been held applicable to governmental invasions of personal privacy or liberty outside the narrow area of criminal investigation. Almeida-Sanchez v. United States, 413 U.S. 266, 270, 37 L. Ed. 2d 596, 93 S. Ct. 2535 (1973); United States v. Biswell, 406 U.S. 311, 316-17, 32 L. Ed. 2d 87, 92 S. Ct. 1593 (1972); Wyman v. James, 400 U.S. 309, 27 L. Ed. 2d 408, 91 S. Ct. 381 (1971); See v. Seattle, 387 U.S. 541, 18 L. Ed. 2d 943, 87 S. Ct. 1737 (1967); Camara v. Municipal Court, 387 U.S. 523, 18 L. Ed. 2d 930, 87 S. Ct. 1727 (1967); Griswold v. Connecticut, 381 U.S. 479, 484-85, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965). “[Ojne’s Fourth Amendment protection subsists apart from his being suspected of criminal behavior.” Wyman v. James, supra at 317.

Nor does the fact that the intrusion on respondent Klinker’s liberty was relatively slight immunize it from scrutiny under the Fourth Amendment. While he was not, perhaps, subjected to the full panoply of indignities which often attend the arrest of criminal suspects, his liberty was substantially curtailed and his person was invaded. He was forced to appear at King County jail, held there without leave to go, booked, photographed, fingerprinted, and only then released. These processes presumably resulted in files being opened at local, state and national levels. Lesser intrusions have been held to trip the scales of the search and seizure clause. Compare, e.g., Cupp v. Murphy, supra at 294 (brief detention to take fingernail scrapings); Davis v. Mississippi, supra at 727 (detention for fingerprinting); Terry v. Ohio, supra at 16 (stop of person on street); Henry v. United States, 361 U.S. 98, 103, 4 L. Ed. 2d 134, 80 S. Ct. 168 (1959) (automobile stop).

The detention of respondent Klinker was thus “just as much of an invasion of the security of [his] person as if [he] had been arrested on a criminal charge.” Bacon v. United States, supra at 942. His arrest and the statutes which authorized it therefore must comply with the procedural and substantive requirements of the Fourth Amendment search and seizure provisions. We find they do not, for two reasons.

A.

First, Mr. Klinker’s arrest violated the constitutional demand that warrants issue only after an independent determination of probable cause is made by a neutral judicial officer. The validity of this arrest was clearly dependent on the validity of the warrant under which it was made: the officers who seized, held and booked Mr. Klinker obviously knew nothing about the allegations against him. See Whiteley v. Warden, 401 U.S. 560, 568, 28 L. Ed. 2d 306, 91 S. Ct. 1031 (1971). The warrant was issued pursuant to RCW 26.24.010, which provides that when a complaint accusing a man of being the father of an illegitimate child is presented to a Justice of the Peace, “it shall he the duty of such justice forthwith to issue a warrant against the person so accused . . .” (Italics ours.) The statute plainly requires that the Justice of the Peace issue the warrant upon receipt of the complaint. He may not inquire as to the basis for the accusation. He is given no information by which to judge its substantiality. Even if he were, he could not consider it.⁵

The Fourth Amendment warrant clause requires more than the signature of a judicial officer at the bottom of the arrest order. It mandates that “the magistrate perform his ‘neutral and detached’ function and not serve merely as a rubber stamp . . .” Aguilar v. Texas, 378 U.S. 108, 111, 12 L. Ed. 2d 723, 84 S. Ct. 1509 (1964). Adequate evidence must be presented for the judicial officer to determine whether or not probable cause justifying an arrest exists:

The Commissioner must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant’s mere conclusion that the person whose arrest is sought has committed a crime.

Giordenello v. United States, 357 U.S. 480, 486, 2 L. Ed. 2d 1503, 78 S. Ct. 1245 (1958).

An arrest warrant issued without the magistrate being given such particular information is void. Whiteley v. Warden, supra; Aguilar v. Texas, supra at 112 n.3; Giordenello v. United States, supra at 485-86; Bacon v. United States, supra at 943. A complaint under oath alleging that the person to be arrested has committed a crime is not enough to establish probable cause. See Whiteley v. Warden, supra at 563; Giordenello v. United States, supra at 481.⁶ Even an information sworn out by a prosecutor is an inadequate substitute for independent judicial judgment based on evidence establishing probable cause. Gerstein v. Pugh, 420 U.S. 103, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975). Much less, then, can the conclusory affirmation required by RCW 26.24.010 suffice.

Deviation from the constitutional norm of the interposition of the independently-informed judgment of a judicial officer would be particularly inappropriate in the context of the statutes here. The warrant requirement is designed to prevent unjustified intrusions on liberty by officers and prosecutors interested and involved in the adversary process of law enforcement (Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022 (1971)), and the purpose of the requirement that particular facts be presented to the judicial officer is to retain this safeguard in fact as well as theory. Gerstein v. Pugh, supra at 112; United States v. Thornton, 454 F.2d 957, 961 (D.C. Cir. 1971). Under RCW 26.24.010 the complaint is sworn out by the woman who is seeking support payments — the real party in interest in the case (State v. Casey, 7 Wn. App. 923, 503 P.2d 1123 (1972)— or her parents. If conclusions drawn by investigating officers or prosecutors are no substitute for a factual presentation for a judge, those drawn by such intimately involved persons cannot be.

The only power in our law comparable to that given a complainant in a filiation proceeding by this statute is the ability of a prosecutor or grand jury to cause an arrest warrant to be issued by filing a formal criminal charge accusing a person of a felony. CrR 2.2. Yet, though the prosecutor is an officer of the court, a “quasi-judicial” official (Batley v. Dewalt, 56 Wash. 431, 105 P. 1029 (1909)), it appears that that portion of the rule allowing automatic issuance of an arrest warrant on the basis of an information alone is no longer constitutionally permissible. Gerstein v. Pugh, supra at 117. Only an indictment by a grand jury, because of that institution’s “relationship to the courts and its historical role of protecting individuals from unjust prosecution,” is a constitutionally and legally adequate substitute for the independent judgment of a judicial officer. Gerstein v. Pugh, supra at 117 n.19. There is no way in logic or law that the affidavit of a complainant and interested party to a civil suit can be given this same extraordinary status. By substituting the verified complaint of a private citizen for an independent review of the facts by a judicial officer, RCW 26.24.010 therefore fails to meet the demands of the Fourth Amendment.

B.

The second Fourth Amendment rule the arrest warrant provision of RCW 26.24.010 violates is the general and fundamental requirement that searches and seizures must be reasonable. Not only does the section fail to require an independent judicial assessment of the facts before arrest warrants issue, it also establishes a standard for their issuance which allows persons to be deprived of liberty without adequate justification. For even if the Justice of the Peace were authorized to determine whether there was adequate factual support for a complaint under this section and found that there was, an arrest would still not necessarily be warranted. The simple fact of paternity is not enough to justify the summary seizure of a person and make an arrest reasonable under the Fourth Amendment.

The ultimate protection of the Fourth Amendment is against “unreasonable searches and seizures.” For an arrest to be “reasonable” it must serve some governmental interest which is adequate to justify the imposition on the liberty of the individual. The reasonableness of an arrest in a given context must be determined on the basis of the particular interests involved.

[T]here is “no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.” Camara v. Municipal Court, 387 U. S. 523, 534-535, 536-537 (1967).

Terry v. Ohio, 392 U.S. 1, 21, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). Thus the Fourth Amendment establishes a “sliding scale,” requiring greater justification for greater intrusions,⁷ and forbidding such intrusions where no adequate justification is forthcoming. Bacon v. United States, 449 F.2d 933 (9th Cir. 1971); Stanford Daily v. Zurcher, 353 F. Supp. 124 (N.D. Cal. 1972).

The term “reasonable” as used in the Fourth Amendment, like “due process” in the Fifth, demands a measure of constitutional sufficiency which varies with the situation presented. In the warrant situation, difficulties of locating a suspect or possessor of evidence, the problems of apprehension, the destructability of evidence, the need for promptness to protect the public against violence and to prevent repetition of criminal conduct necessitate the ex parte nature of the warrant issuance proceeding.

In re September 1971 Grand Jury, 454 F.2d 580, 583 (7th Cir. 1971), overruled on other grounds sub nom. United States v. Mara, 410 U.S. 19 (1973).

Since the great majority of search and seizure cases involve the single circumstance of criminal investigation and detention, this aspect of the Fourth Amendment’s “reasonableness” requirement is usually discussed under the heading of “probable cause.” See Camara v. Municipal Court, 387 U.S. 523, 534, 18 L. Ed. 2d 930, 87 S. Ct. 1727 (1967). The “principle of reason under which the individual’s privacy and freedom from official interference must be weighed against society’s need for effective law enforcement” (Sullivan v. Murphy, 478 F.2d 938, 966 (D.C. Cir. 1973)) boils down, in criminal situations, to a simple determination of whether the relevant official, police or judicial, could reasonably believe that the person to be arrested has committed a crime. Giordenello v. United States, supra at 485. “The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests” of the citizen and the society. Brinegar v. United States, 338 U.S. 160, 176, 93 L. Ed. 1879, 69 S. Ct. 1302 (1949); Gerstein v. Pugh, supra at 112. Where grounds exist to believe a person has committed a crime, the public interest in law enforcement is assumed to outweigh the individual’s interest in liberty and to justify an arrest of that person, just as the same public interest outweighs the right of privacy invaded by a criminally-related search warrant. See Fuentes v. Shevin, supra at 93 n.30.

This case involves an arrest outside the criminal area, however, where the law is not well enough developed to permit such shorthand dispositions of the relevant considerations. We must therefore determine what is the content of the probable cause requirement in this context. In order to do so it is “necessary first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen” to determine if the justification is adequate. Camara v. Municipal Court, supra at 534-35. The governmental interest in filiation proceedings is the need to insure that the burden of supporting illegitimate children will be equitably shared by both of its parents and will not be unnecessarily placed on the state. This interest is substantial, and it requires that fathers of illegitimate children who are unwilling to voluntarily support their offspring be subject to legal compulsion to fulfill their moral responsibilities. But it does not require their arrest. Arrest is justified when a person may flee from legal process, or where he may constitute a danger to the public if allowed to remain at large. Cf. CrR 2.2 (b) and (c). It is not justified simply by the fact that it is necessary to bring him into court for trial. The circumstances outside the criminal area in which arrest is necessary or appropriate are few indeed, as the general abandonment of archaic laws permitting arrest in civil disputes indicates. Where there is no special need for arrest, where some other means exists by which the governmental interest can be satisfied without such infringement on individual liberties, the issuance of an arrest warrant is not only unwise but constitutionally impermissible.

The intrusion from the execution of a warrant — a paramount concern of the Founding Fathers — is simply “unnecessary” in most situations involving non-suspects, since a “less drastic means” exists to achieve the same end.

Stanford Daily v. Zurcher, 353 F. Supp. 124, 131 (N.D. Cal. 1972).

The “less drastic means” which is available to satisfy the public interest in securing the presence of defendants to filiation suits is obviously the summons and complaint procedure which is common to all civil proceedings in this state save this one, and which is mandated by our court rules even in criminal cases when the usual reasons for arrest are not present. CrR 2.2(b). So long as such means are available, the use of an arrest warrant to commence a filiation proceeding is unnecessary and unreasonable within the meaning of the Fourth Amendment. Only where it is shown that the legitimate state concerns would not be met through use of more conventional pleading devices can the arrest procedure be sanctioned. Here, where the defendant was a longtime resident of the trial court’s jurisdiction, presumably highly unlikely to flee to avoid service of process, the need for arrest was not shown to exist and the arrest itself was therefore improper.

In Bacon v. United States, supra, a material witness, held for the purpose of compelling her testimony before a federal grand jury, petitioned for a writ of habeas corpus alleging that her confinement violated the Fourth Amendment. The court found that it did, and that she was entitled to release. It reasoned that in the noncriminal context what the Fourth Amendment required was a showing of necessity, of probable cause to believe that the petitioner would not respond to a subpoena and would flee the jurisdiction rather than testify. The court thus held that the government’s failure to persuade a judge that the seizure was necessary before it was made, or to first resort to a subpoena ad testificandum, rendered the arrest unconstitutional.

We follow the Bacon decision and hold that in filiation cases the Fourth Amendment requires that, before issuing a warrant for the arrest of a putative father, the Justice of the Peace must determine that there is probable cause to believe not only that the accused individual is the father of the illegitimate child, but also that he will flee the jurisdiction if given more conventional notice of the commencement of the suit against him. Compare RCW 26.21.104 (arrest in nonsupport cases). If such cause is found to exist, an arrest warrant may issue; if it is not, the justice may approve only a standard summons and complaint, which requires no Fourth Amendment justification. United States v. Dionisio, 410 U.S. 1, 35 L. Ed. 2d 67, 93 S. Ct. 764 (1973).

C.

Neither Fourth Amendment ground of our decision in this case in any way impugns the existing standards and procedures governing the issuance of arrest warrants in criminal cases in this state. Procedurally, our arrest warrant rules are essentially sound. As noted above, the Supreme Court’s decision in Gerstein v. Pugh, 419 U.S. 815, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975), apparently renders unconstitutional the provisions of CrR 2.2 which allow a warrant to issue automatically upon the filing of an information. But that same case specifically endorses the practice of basing an arrest warrant solely on a grand jury indictment established by that rule. Gerstein v. Pugh, supra at 117 n.19. And the citizen-complaint provisions of JCrR 2.01(c) and 2.02(a) provide a model of constitutionally proper warrant practice which should be followed in future filiation cases. Substantively, the requirement of reasonableness is similarly well observed‘in CrR 2.2 and JCrR 2.02(b) (1), (2) and (3), which not only do not authorize arrest where it is not justified but do not even always permit it when constitutionally it would be allowable.

Ill

For these reasons we affirm the determination of the trial court that the challenged statutes are unconstitutional and its consequent dismissal of the action against respondent Klinker. We believe, however, that the court went too far in holding that neither it nor the district court had ever obtained jurisdiction over him. Impropriety in the means by which a defendant is brought into court does not ordinarily deprive that court of jurisdiction. Frisbie v. Collins, 342 U.S. 519, 96 L. Ed. 541, 72 S. Ct. 509 (1952); United States v. Ruffin, 389 F.2d 76 (7th Cir. 1968); State v. Blanchey, 75 Wn.2d 926, 454 P.2d 841 (1969); Ollison v. Rhay, 68 Wn.2d 137, 412 P.2d 111 (1966). The judgment should be modified to dismiss the action without prejudice to the State’s right to amend its complaint and reapply to the district court for the issuance of process recommencing this action in a manner consistent with this decision.⁸

As so modified, the judgment of the trial court is affirmed.

Stafford, C.J., and Finley, Wright, and Brachtenbach, JJ., concur. Hamilton, J., concurs in the result.

1 RCW 26.24.010 provides:

“When an unmarried woman shall be pregnant or delivered of a child which shall not be the issue of lawful wedlock, complaint may be made in writing by said unmarried woman, her father, mother or guardian, to any justice of the peace in the county of which she h-' been a resident for thirty days last past and where she may be so pregnant or delivered, or where the person accused may be found, accusing, under oath, a person with being the father of such child, and it shall be the duty of such justice forthwith to issue a warrant against the person so accused and cause him to be brought forthwith before such justice.”

2 RCW 26.24.020 provides:

“Upon the appearance of the accused, it shall be the duty of such justice to examine the woman, if then present, under oath, in the presence of the man alleged to be the father of the child, touching the charge against him, or, if the woman be not then present, to fix a date for such examination not more than ten days thereafter and to require the accused to give a bond with sufficient surety conditioned that he will appear to answer such charge upon such date, or upon any other date to which such examination may be continued; and in default of the giving of such bond such justice shall cause the accused to be committed to the county jail. The accused shall have the right to controvert such charge and evidence may be heard as in the case of trial of civil actions before such justice. If such justice shall be of the opinion that sufficient cause appears, it shall be his duty to bind the person so accused in bond with sufficient surety payable to the state of Washington and conditioned that he will appear in the superior court of such county at such time or times as the judge thereof may fix or order, to answer such complaint, and abide the judgment and orders of the court; or failing therein, that he will pay such sums of money and to such person as may be adjudged by such court; and the justice shall transmit such bond, together with the transcript of his proceedings, the complaint and the other papers in the case, without delay to the clerk of the superior court of such county. And if the accused shall fail to give a bond as required, such justice shall commit him to jail until discharged by law. Such bond, or any bond given by said accused on any continuance or arrest, may be put in suit by any person in whose favor the court may adjudge any sum of money in such proceeding.”

3 We relied on this aspect of Mitchell v. W.T. Grant Co., 416 U.S. 600, 40 L. Ed. 2d 406, 94 S. Ct. 1895 (1974), and on dicta regarding “extraordinary circumstances” in Fuentes v. Shevin, 407 U.S. 67, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972), to uphold RCW 7.12.020, authorizing prejudgment attachment of property without a prior hearing, on the particular facts presented in Thompson v. DeHart, 84 Wn.2d 931, 530 P.2d 272 (1975).

4 A lower court’s decision, if correct, can be sustained on appeal on any ground within the pleading and proof. Thompson v. Thompson, 82 Wn.2d 352, 510 P.2d 827 (1973); Northwest Collectors, Inc. v. Enders, 74 Wn.2d 585, 446 P.2d 200 (1968); Lundgren v. Kieren, 64 Wn.2d 672, 393 P.2d 625 (1964). Thus the fact that the trial court did not consider, and the parties did not address, the question of the constitutionality of the challenged statutes under that aspect of the Fourteenth Amendment which “incorporates” the principles of the Fourth (see Ker v. California, 374 U.S. 23, 30, 10 L. Ed. 2d 726, 83 S. Ct. 1623 (1963)) does not force us to limit ourselves to consideration of the particular Fourteenth Amendment principles that were argued here and below.

5 The complaint on which the warrant for respondent Klihker’s arrest was based was in the form suggested by RCWA 26.24.010, alleging only that the complainant had had a child out of wedlock and that respondent Klinker was its father. The form was accompanied by an affidavit presenting facts in support of this conclusory contention. Under the plain language of the statute, however, the Justice of the Peace was not authorized to use that information in any way. The law required him to issue the warrant even if he believed, after reading the affidavit, that the allegations in the complaint were ill-founded. Thus the propriety of the warrant procedure must be determined just as if the complaint were unsupported, for it is impossible to tell whether or not the justice found the affidavit persuasive, considered it or even saw it.

6 This constitutional requirement has recently been made part of our court rules by the adoption of JCrR 2.02. That rule requires that the judge find “reasonable cause to believe that an offense has been committed and that the defendant has committed it” in order to issue an arrest warrant upon a sworn complaint. It further gives the judge the power to call and examine the complainant and other witnesses to determine whether such cause exists. JCrR 2.01 (c) adds to this extensive requirements as to the form and contents of a citizen complaint. Similar procedures and findings are required and powers are granted by JCrR 2.10, dealing with the issuance of search warrants in criminal cases.

7 Compare, e.g., Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968) (police officer must reasonably believe it is necessary to detain person in order to make momentary “stop”), with Whiteley v. Warden, 401 U.S. 560, 28 L. Ed. 2d 306, 91 S. Ct. 1031 (1971) (police officer must have probable cause to believe person has committed a crime in order to arrest) and Gerstein v. Pugh, 419 U.S. 815, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975) (judicial officer must be shown probable cause to believe that person has committed a crime in order to detain beyond arrest).

8 Dismissal without prejudice will permit the amendment of the complaint to relate back to the original filing date, thus preventing the running of the statute of limitations. Physicians’ & Dentists’ Business Bureau v. Dray, 8 Wn.2d 38, 111 P.2d 568 (1941); Guaranty Trust Co. v. Yakima First Nat’l Bank, 179 Wash. 615, 38 P.2d 384 (1934). It would be inequitable to hold, as the trial court did, that jurisdiction had never been obtained over the respondent, as that would permit the statute to run on plaintiff’s claim while there was no constitutional procedure by which this suit could have been brought. Cf. Seamans v. Walgren, 82 Wn.2d 771, 514 P.2d 166 (1973).