State v. McKenna , 91 Wash. App. 554 ( 1998 )

Morgan, J.

— Denise McKenna appeals her conviction for possession of methamphetamine. We reverse.

On April 26, 1996, the Cowlitz County Jail was overcrowded. As a result, it was refusing to book anyone arrested for only a nonviolent misdemeanor.

About 2:30 a.m., Officer Coulter,¹ a Kelso police officer, saw a car drive away from what he believed to be a drug house. The car was occupied by a female driver and a male passenger.

Coulter ran a computer check on the car. The results indicated that the car’s annual license tabs had expired. Coulter could see, however, that the car had a current tab on its rear plate.

Suspecting false tabs, Coulter pulled the car over. After ascertaining that McKenna was the driver, he asked her to produce a driver’s license and insurance card. She could not, so he ran a computer check on her and her passenger. The results indicated (a) that McKenna’s driver’s license was expired; (b) that McKenna did not have insurance; (c) that McKenna was wanted on an arrest warrant issued by the Longview Municipal Court for driving without a valid operator’s license; and (d) that the passenger was wanted on a similar warrant.

Because of the jail situation, Coulter did not arrest McKenna or the passenger. Instead, he cited McKenna for not possessing a valid operator’s license or proof of insurance. He also told both her and the passenger to take care of their warrants by contacting the Longview Municipal Court.

Once Coulter completed the citations, McKenna and her passenger were “free to go.”² Their car, however, was not. Sergeant Nelson, Officer Stair and Officer Proco had arrived by this time, and when Sergeant Nelson learned that neither McKenna nor her passenger had a valid driver’s license, he ordered that her car be impounded and inventoried. Eventually, the car was searched and towed away.

When McKenna learned that her car was being impounded, she asked if she could retrieve some of the personal items that were in it. The officers agreed, and she loaded a number of items into a duffle bag.

At this point, McKenna lacked transportation, and it was after 2:30 a.m. Officer Stair told her he would call her a cab or give her a ride home in his patrol car. Before she could ride in his patrol car, however, “she would have to submit to a check of her person and bag for weapons.”³ “At this point,” according to the trial court’s explicit finding, “[McKenna] and her companion were free to leave.”⁴

McKenna responded to Stair’s statements by agreeing that he could search the duffle bag. As Stair did so, according to the trial court’s finding, he was “look[ing] for weapons and . . . illegal drugs.”⁵ He did not find either, but he did find drug paraphernalia in the nature of a pipe, cigarette wrapping papers, and a small set of scales.

Stair then told McKenna to empty her pockets. She complied by taking “a plastic film canister out of her pocket and plac[ing] it on the car.”⁶ Stair opened the canister, found methamphetamine, and placed McKenna under arrest for possession of a controlled substance and possession of drug paraphernalia.

On May 1, 1996, the State charged McKenna with illegal possession of a controlled substance, methamphetamine. She moved to suppress, and after a hearing the trial court made several findings and conclusions pertinent here.

First, the court ruled that the search of McKenna’s pockets could not be justified by probable cause to arrest for possession of drug paraphernalia. The court’s reason, appropriately enough, was that there is no such crime.⁷

Second, the court ruled that the search of McKenna’s pockets could not be justified by consent. When McKenna handed the duffle bag to Officer Stair, she was “knowingly and voluntarily consenting] to a search of her bag for weapons,”⁸ but she was not consenting to a search of her person for weapons or anything else. As a result, McKenna did not “take the plastic film canister out of her pocket as part of [a] consensual search of her person. Rather, she took it out of her pocket upon the order of Officer Stair.”⁹

Third, the court ruled that the search of McKenna’s pockets could be justified on the ground that it was “a valid search incident to an arrest . . . that Officer Stair could have made on the outstanding Longview Municipal Court warrant.”¹⁰ It was legally insignificant, the trial court thought, that no such arrest had actually been made. Based on this reasoning, the trial court denied the motion to suppress.

After her motion to suppress had been denied, McKenna stipulated to the facts of the case and submitted to a bench trial. She was convicted, and this appeal followed.

It is undisputed that when Officer Stair ordered McKenna to empty her pockets, he was conducting a warrant-less search of her pockets.¹¹ The trial court implicitly so found, and the State does not assail its findings. The issue, then, is whether Stair’s search of McKenna’s pockets was justified under the Fourth Amendment to the United States Constitution.¹²

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .’’It “prohibits warrantless searches unless the search is justified under an established exception to the warrant requirement.”¹³ The State bears the burden of proving that a warrantless search falls under an established exception.¹⁴

Two established exceptions are a search conducted with consent and a search incident to valid arrest.¹⁵ The State does not rely on consent,¹⁶ nor does it assign error to the trial court’s finding that McKenna did not consent to a search of her person.¹⁷ The State does, however, argue search incident to a valid arrest.

According to the United States Supreme Court, the search-incident exception has historically involved two questions: (1) May a search be made of the arrestee’s person? (2) May a search be made of the area within the arrestee’s control?¹⁸

The first of these questions is the one involved here. Without additional cause, an officer may search the person of an arrestee incident to a lawful custodial arrest.¹⁹ The arrest need not precede the search,²⁰ but it must be contemporaneous with the search.²¹ The officer must have probable cause to arrest before commencing the search,²² which is also to say that the arrest cannot be justified by the fruits of the search.²³ The reasons for allowing the search are to protect the officer and prevent the destruction of evidence,²⁴ or, put another way, to find and control weapons and evidence that might be on the person of the arrestee. It is thought that while the officer transports the arrestee to jail, the arrestee will have both motive and opportunity to use any weapon that might be on his or her person, and also to destroy any evidence that might be on his or her person.

Although an officer may search incident to a lawful custodial arrest, he or she may not search incident to a lawful noncustodial arrest.²⁵ It is thought that the officer and arrestee will be in close proximity for only a few minutes, and the arrestee, who is about to be released anyway, will have little motivation to use a weapon or destroy evidence. The officer may pat the arrestee for weapons if he or she reasonably suspects the arrestee is armed.²⁶

The right to search incident to a lawful custodial arrest, once acquired, terminates no later than when the officer announces that the arrestee will be released rather than booked.²⁷ Thereafter, the situation is the same as a noncustodial arrest, in that the arrestee will have little motivation to use a weapon or destroy evidence, and the officer will have little need to conduct a full search of the person. The officer may still pat for weapons if he or she reasonably suspects that the arrestee/releasee is armed.²⁸

In this case, Coulter arrested McKenna, and Stair did also. Our task is to analyze whether either arrest supports Stair’s search of McKenna’s pockets under the principles just set forth. We begin with Coulter’s arrest.

Coulter’s arrest of McKenna will not support Stair’s search of McKenna’s pockets for at least two reasons. First, it was noncustodial. Coulter knew the jail situation, and, because of it, he never formed an intent, much less manifested an intent, to arrest McKenna custodially. Perhaps this is best illustrated by the fact that after he learned of the outstanding warrants, he told both McKenna and her passenger to contact the municipal court on their own.

Second, Coulter’s arrest of McKenna terminated before Stair searched McKenna’s pockets. It is virtually undisputed, based on the officers’ intent and also their objective manifestations, that McKenna was free to go once Coulter finished writing citations. Indeed, Stair was offering to give her a ride home when he suggested that he search her bag and her person. Even if Coulter’s arrest could somehow be considered custodial, so that it could support a search-incident at some earlier point in time, it cannot support a search-incident after McKenna had been told she was free to go.

Likewise, Stair’s arrest of McKenna will not support a search-incident because it was based only on the fruits of the search itself. The drug paraphernalia in the duffle bag did not give cause to arrest, because mere possession of drug paraphernalia is not a crime.²⁹ Like Coulter, Stair knew the jail was overcrowded, and that the officers were not going to arrest McKenna custodially, outstanding warrants notwithstanding. The record is devoid of any other reason to arrest, except the methamphetamine that was the fruit of the challenged search, and that may not be used to justify the challenged search.

If we perceive correctly, the dissent does not dispute that Coulter’s arrest ended when McKenna was told she could go. Nor does it dispute that Stair’s arrest was based solely on the fruits of the disputed search. It reasons, however, (1) that the officers could have arrested McKenna on warrants, and (2) that what they could have done, as opposed to what they did do, makes Stair’s search of McKenna’s pockets a search incident to arrest. This reasoning is erroneous because, according to both the United States Supreme Court and the Washington Supreme Court, a search can be incident to arrest only when the search and arrest are reasonably contemporaneous.³⁰ When they are, it does not matter which comes first,³¹ but when they are not, the search is not incident to the arrest.³²

The State relies on State v. Brantigan.³³ Its reliance, however, is misplaced. If Brantigan is good law,³⁴ it stands at most for two propositions: (1) An arrest will be treated as custodial where the officer (a) had probable cause to make a custodial arrest; (b) announced the arrestee was under arrest; but (c) failed to announce whether the arrest was custodial or noncustodial. (2) An otherwise lawful custodial arrest will support a search incident to it, provided that the evidence does not show an unconditional decision to release prior to the officer’s making the search. Neither of these propositions is helpful here, where the custodial/noncustodial nature of the various arrests is plain, and where the uncontroverted evidence shows that Coulter, Stair and the other officers released McKenna and her passenger well before Stair searched McKenna’s pockets.

Although we decline to rely on Brantigan, nothing herein means that a trial court must suppress evidence when an officer (a) arrests a defendant with probable cause to make a custodial arrest; (b) conducts a search contemporaneous with the arrest; but (c) for objectively manifested reasons arising after the search (e.g., being called to another, more pressing emergency), does not actually take the defendant into custody. We have no occasion to consider such a situation in deciding this case.

Summarizing, we hold that Officer Coulter’s arrest did not justify the challenged search because it was noncustodial, and because it ended before the challenged search occurred. We hold that Officer Stair’s arrest did not justify the challenged search because it had no basis except the fruits of the challenged search. The dissent notwithstanding, the fact that an arrest could have been made, but was not made, is immaterial; what is material is the fact that the challenged search was not accompanied by a contemporaneous arrest (except the arrest based on the fruits of the challenged search, which cannot be used to justify the challenged search).³⁵ The motion to suppress was well taken, and McKenna’s conviction is hereby reversed.

Seinfeld, J., concurs.

1 The record contains two different spellings of this officer’s name. We use the spelling shown in the trial court’s findings of fact.

2 Conclusion of Law 3, Clerk’s Papers at 27.

3 Finding of Fact 8, Clerk’s Papers at 26.

4 Id.

5 Finding of Fact 9, Clerk’s Papers at 26.

6 Finding of fact 11, Clerk’s Papers at 26.

7 RCW 69.50.412; State v. Lowrimore, 67 Wn. App. 949, 959, 841 P.2d 779 (1992).

8 Conclusion of Law 4, Clerk’s Papers at 27.

9 Conclusion of Law 6, Clerk’s Papers at 27-28.

10 Conclusion of Law 7, Clerk’s Papers at 28. (Emphasis added.)

11 Cf. State v. Carner, 28 Wn. App. 439, 441, 624 P.2d 204 (1981) (finding of fact I-g). The searches of the car and duffle bag are immaterial here, because nothing significant was found.

12 McKenna also claims a violation of Article I, § 7 of the Washington Constitution, but we do not reach that issue.

13 State v. Johnson, 128 Wn.2d 431, 451, 909 P.2d 293 (1996); State v. Smith, 119 Wn.2d 675, 678, 835 P.2d 1025 (1992).

14 Johnson, 128 Wn.2d at 451; State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980); State v. Jackson, 82 Wn. App. 594, 601-02 n.15, 918 P.2d 945 (1996), review denied, 131 Wn.2d 1006 (1997).

15 Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973) (consent); United States v. Robinson, 414 U.S. 218, 224, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973) (search incident); Smith, 119 Wn.2d at 678 (search incident).

16 The State correctly notes that McKenna consented to a search of her duffle bag, but it does not claim that she consented to a search of her person.

17 As a result, the trial court’s finding is a verity on appeal. State v. Alexander, 125 Wn.2d 717, 723, 888 P.2d 1169 (1995); State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).

18 Robinson, 414 U.S. at 224.

19 Id. at 235 (treating all custodial arrests alike for purposes of search justification); State v. Johnson, 65 Wn. App. 716, 720-21, 829 P.2d 796 (1992) (upholding search incident to lawful custodial arrest for traffic infraction); State v. Stortroen, 53 Wn. App. 654, 659, 769 P.2d 321 (1989) (“[wjhere a custodial arrest is not justified, no warrantless search pursuant to that arrest may be upheld”), overruled on other grounds, State v. Reding, 119 Wn.2d 685, 694, 835 P.2d 1019 (1992); State v. Jordan, 50 Wn. App. 170, 175, 747 P.2d 1096 (1987) (upholding search incident to custodial arrest), review denied, 110 Wn.2d 1027 (1988); State v. LaTourette, 49 Wn. App. 119, 128, 741 P.2d 1033 (1987) (quoting Robinson, 414 U.S. at 235), review denied, 109 Wn.2d 1025 (1988); State v. McIntosh, 42 Wn. App. 573, 577, 712 P.2d 319 (upholding search incident to traffic arrest under “the unique facts of this case”), review denied, 105 Wn.2d 1015 (1986); see State v. Hehman, 90 Wn.2d 45, 47-48, 578 P.2d 527 (1978) (search improper where public policy did not allow custodial arrest); Gustafson v. Florida, 414 U.S. 260, 265-66, 94 S. Ct. 488, 38 L. Ed. 2d 456 (1973) (upholding search of person incident to custodial arrest); Schmerber v. California, 384 U.S. 757, 772, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) (not permissible to search below surface of body in absence of cause to believe weapon or evidence is present).

20 Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980) (“Where the formal arrest followed quickly on the heels of the challenged search of petitioner’s person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.”); State v. Smith, 88 Wn.2d 127, 138, 559 P.2d 970 (“if a warrantless search and seizure is reasonably closely related in time and place to a lawful arrest, the search and seizure may be considered incidental to the arrest. . . whether the search and seizure occurs either before or after the arrest.”), cert. denied, 434 U.S. 876 (1977); State v. Brooks, 57 Wn.2d 422, 425, 357 P.2d 735 (1960) (“if the officer is entitled to make an arrest on the basis of information available to him before he searches, and as an incident to that arrest is entitled to make a reasonable search of the person arrested . . . there is nothing unreasonable in his conduct if he makes the search before instead of after the arrest”) (quoting People v. Simon, 45 Cal. 2d 645, 290 P.2d 531, 533 (1955)).

21 Rawlings, 448 U.S. at 111 (immaterial whether search preceded arrest, or arrest preceded search, given circumstances “[w]here the formal arrest followed quickly on the heels of the challenged search of petitioner’s person”); Smith, 119 Wn.2d at 679 (search can be incident to arrest “only if the two are contemporaneous”); Smith, 88 Wn.2d at 138 (search may be incident to lawful arrest, regardless of which comes first, if search and arrest are “reasonably closely related in time and place”); State v. Boyce, 52 Wn. App. 274, 278-79, 758 P.2d 1017 (1988); see United States v. Chadwick, 433 U.S. 1, 15-16, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977) (search of footlocker not incident to arrest where search and arrest occurred “more than an hour” apart), overruled on other grounds, California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991).

22 Rawlings, 448 U.S. at 111; Brooks, 57 Wn.2d at 425 (“if the officer is entitled to make an arrest on the basis of information available to him before he searches, and as an incident to that arrest is entitled to make a reasonable search of the person arrested . . . there is nothing unreasonable in his conduct if he makes the search before instead of after the arrest”) (quoting Simon, 45 Cal. 2d at 645).

23 Smith v. Ohio, 494 U.S. 541, 543, 110 S. Ct. 1288, 108 L. Ed. 2d 464 (1990) (“ ‘justifying] the arrest by the search and at the same time . . . the search by the arrest,’ just ‘will not do.’ ”) (alterations in original) (quoting Johnson v. United States, 333 U.S. 10, 16-17, 68 S. Ct. 367, 92 L. Ed. 2d 436 (1948)); State v. Valdez, 5 Neb. App. 506, 562 N.W.2d 64, 74 (1997) (“It does not matter that a defendant is not formally placed under arrest until after a search, so long as the fruits of the search are not necessary to support the cause to arrest.”).

24 New York v. Belton, 453 U.S. 454, 457, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981) (quoting Chimel v. California, 395 U.S. 752, 762-63, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969)); Robinson, 414 U.S. at 226; Gustafson, 414 U.S. at 264; see Wayne R. LaFave, Search and Seizure § 5.2(g), at 91 (3d ed. 1996); Johnson, 128 Wn.2d at 447; State v. Stroud, 106 Wn.2d 144, 152, 720 P.2d 436 (1986).

25 State v. Feller, 60 Wn. App. 678, 680-81, 806 P.2d 776 (arrest and search improper when based solely on driver’s not having valid license), review denied, 117 Wn.2d 1005 (1991); State v. Barajas, 57 Wn. App. 556, 560, 789 P.2d 321 (same), review denied, 115 Wn.2d 1006 (1990); State v. Watson, 56 Wn. App. 665, 667-68, 784 P.2d 1294 (search improper where law required that arrest be noncustodial), review denied, 114 Wn.2d 1028 (1990); Stortroen, 53 Wn. App. at 659 (“[w]here a custodial arrest is not justified, no warrantless search pursuant to that arrest may be upheld”); see Gustafson, 414 U.S. at 266 (Stewart, J., concurring) (petitioner might have made, but did not make, “a persuasive claim . . . that the custodial arrest ... for a minor traffic offense violated his rights under the Fourth and Fourteenth Amendments”); State v. Larson, 88 Wn. App. 849, 852, 946 P.2d 1212 (1997); McIntosh, 42 Wn. App. at 577; cf. Hehman, 90 Wn.2d at 47 (as matter of Washington’s public policy, search improper where law required that arrest be noncustodial); see LaFave § 5.2(g), at 91, § 5.2(h), at 95-96.

26 Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (permitting “reasonable search for weapons” when officer “has reason to believe that he is dealing with an armed and dangerous individual”); Feller, 60 Wn. App. at 681-82 (permitting pat down for weapons “when an officer has reasonable grounds to believe the person is armed and presently dangerous”); see Robinson, 414 U.S. at 227-28; LaFave § 5.2(h), at 94-96.

27 State v. Carner, 28 Wn. App. 439, 445, 624 P.2d 204 (1981) (justification for search-incident ends when decision to release is made and manifested); State v. Lewis, 611 A.2d 69, 70 (Me. 1992); LaFave, § 5.2(h), at 95 n.142; cf. State v. Brantigan, 59 Wn. App. 481, 485, 798 P.2d 1176 (1990) (search of arrestee’s person upheld as incident to lawful custodial arrest where evidence did not show that officer had released arrestee before making challenged search).

28 Terry v. Ohio, 392 U.S. at 27; Feller, 60 Wn. App. at 681-82; see Robinson, 414 U.S. at 227-28; LaFave § 5.2(h), 94-96.

29 RCW 69.50.412; Lowrimore, 67 Wn. App. at 959.

30 Rawlings, 448 U.S. at 111; Smith, 119 Wn.2d at 679; Smith, 88 Wn.2d at 138; Boyce, 52 Wn. App. at 278-79; see United States v. Chadwick, 433 U.S. at 15-16 (search of footlocker not incident to arrest where search and arrest were separated by “more than an hour,” and thus not contemporaneous).

31 E.g., Rawlings, 448 U.S. at 111.

32 Eg., Boyce, 52 Wn. App. at 279.

33 59 Wn. App. 481, 798 P.2d 1176 (1990).

34 The Brantigan court’s assertion that the officer had probable cause to make a custodial arrest is of dubious validity. The officer arrested for possession of drug paraphernalia, and that was not a crime at the time, at least under state law. RCW 60.50.412; Lowrimore, 67 Wn. App. at 959. It is possible, we suppose, that possession of drug paraphernalia was a crime under some local ordinance.

35 Smith v. Ohio, 494 U.S. at 543; State v. Valdez, 562 N.W.2d at 74.