State Of Washington v. Dominique N. Burdick ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Appellant,
No. 79910-0-I
v.
UNPUBLISHED OPINION
DOMINIQUE NATHANIEL BURDICK,
Respondent.
DWYER, J. — Dominique Burdick was charged with possession of a
controlled substance and with criminal impersonation. After a jury trial, he was
convicted on the first count. After a posttrial hearing on Burdick’s motion to
suppress evidence of the substance in question, the trial court granted his motion
and vacated his conviction. The State appeals, asserting that the motion to
suppress should not have been granted because the evidence was obtained in a
valid search incident to Burdick’s arrest. Finding no error, we affirm.
I
At about 5:45 a.m. on January 4, 2019, Swinomish Tribal Police Officer
David Schwahn received a report of a vehicle prowl in the Swinomish Casino
parking lot. The same day, at 5:00 p.m., Schwahn received a message that the
suspected perpetrator of the vehicle prowl had returned to the casino but had left
after refusing to identify himself to casino security personnel. Schwahn arrived at
the casino parking lot at about 5:10 and saw Dominique Burdick walking away
No. 79910-0-I/2
from the casino with a black backpack on his shoulder. Another Swinomish
Tribal police officer, Aaron Nelson, was in his own vehicle in the casino parking
lot at the time and observed Schwahn entering the parking lot. Because
Burdick’s appearance matched the description of the suspect provided by casino
security, Schwahn approached him on foot and initiated a conversation. Nelson
then approached Burdick and stood behind him, opposite Schwahn. Burdick’s
mother was standing nearby.
Burdick told Schwahn that he had been expelled from the casino because
he lacked identification. When Schwahn asked for Burdick’s name, Burdick
stated that his name was “Deon S. Thonmas” and that his date of birth was April
8, 1997. Schwahn asked Nelson to run this name in a police database. At some
point, Burdick asked Schwahn for permission to hand his backpack to his mother,
a request that Schwahn refused.
Subsequently, the officers told Burdick that he was being detained but not
arrested. Burdick was then escorted into the patrol vehicle while his backpack
was placed in the vehicle’s trunk. Nelson drove this vehicle to the rear of the
casino while Schwahn entered the casino to review security camera footage of
the alleged vehicle prowl.
After viewing the video, Schwahn concluded that probable cause existed
to arrest Burdick. At 5:39 p.m., Schwahn informed Burdick that he was under
arrest.1 The officers searched Burdick and his backpack incident to this arrest
1 As Officer Schwahn explained at trial, Swinomish Tribal police officers are “cross-
commission[ed],” meaning they have investigatory authority over non-enrolled subjects both
within and outside the boundaries of the Swinomish Reservation. See RCW 10.92.020.
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and, while searching the backpack, discovered a copy of an identification card
containing Burdick’s true name and birthdate. The officers also found drug
paraphernalia along with a substance that they believed to be heroin.
Ultimately, Burdick was not charged with vehicle prowling. He was
charged with possession of a controlled substance and with criminal
impersonation. The case proceeded to a jury trial. Because no laboratory
results were available, prior to trial, to confirm that the substance found in
Burdick’s backpack was heroin, Burdick did not move to suppress this evidence
until the day his trial commenced—March 11, 2019.2 For judicial and jury
efficiency reasons, the parties and trial court agreed that a hearing on the
suppression motion would be held after the trial, if the jury convicted Burdick.
At the close of the State’s case, the trial court granted Burdick’s motion to
dismiss the charge of criminal impersonation. The jury convicted Burdick of
possession of a controlled substance.
At the posttrial suppression hearing, the trial court addressed the issues of
whether the officers had probable cause to arrest Burdick and whether the
search of Burdick’s backpack, incident to his arrest, was lawful. The court
concluded that Burdick was “validly detained pursuant to an articulable suspicion
and validly arrested pursuant to Probable Cause that he committed a vehicle
prowl.” However, the court granted Burdick’s motion to suppress on the basis
that “[t]here was a place to safely stow the pack and it did not have to go along
with him into custody.” Thus, the trial court ordered suppression of evidence of
2 By that time, the necessary laboratory results had been obtained by the prosecution.
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the heroin found in the backpack, vacated the jury’s verdict, and dismissed the
case. The State appeals.
II
The dispositive issue, on Burdick’s suppression motion and on appeal, is
whether the police officers’ search of Burdick’s backpack incident to his arrest
was lawful. The State avers that the search was a valid search incident to
Burdick’s lawful arrest. Burdick disagrees, averring that the backpack was in his
possession at the time he was arrested only because Officer Schwahn decided
that it would be. Burdick’s view, accepted by the superior court, is both
meritorious and supported by controlling case authority.
In reviewing a trial court’s decision on a motion to suppress, we determine
whether the trial court’s findings of fact are supported by substantial evidence.
State v. Garvin, 166 Wash. 2d 242, 249, 207 P.3d 1266 (2009). Evidence is
substantial when it is sufficient to persuade a fair-minded, rational person of the
truth of the finding. State v. Levy, 156 Wash. 2d 709, 733, 132 P.3d 1076 (2006).
Conclusions of law from an order pertaining to the suppression of evidence are
reviewed de novo. State v. Duncan, 146 Wash. 2d 166, 171, 43 P.3d 513 (2002).
There are two types of searches incident to arrest: “(1) a search of the
arrestee’s person (including those personal effects immediately associated with
his or her person—such as purses, backpacks, or even luggage) and (2) a
search of the area within the arrestee’s immediate control.” State v. Brock, 184
Wash. 2d 148, 154, 355 P.3d 1118 (2015). “A valid search of the latter requires
justification grounded in either officer safety or evidence preservation—there
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must be some articulable concern that the arrestee can access the item in order
to draw a weapon or destroy evidence.” Brock, 184 Wash. 2d at 154 (citing State v.
Byrd, 178 Wash. 2d 611, 617, 310 P.3d 793 (2013)). In contrast, a search of the
arrestee’s person “presumes exigencies and is justified as part of the arrest.”
State v. MacDicken, 179 Wash. 2d 936, 941, 319 P.3d 31 (2014) (citing Byrd, 178
Wash. 2d at 618). This case involves a search of the arrestee’s person.
Two cases control the resolution of this dispute: State v. Brock, 184 Wash. 2d
148, and State v. Alexander, 10 Wash. App. 2d 682, 449 P.3d 1070 (2019), review
denied, 458 P.3d 785 (2020). We first discuss Brock. Therein, a police officer
was patrolling a city park after hours when he noticed that a men’s restroom door
was open, with the lights on inside, and discerned a person’s legs within a
bathroom stall. Brock, 184 Wash. 2d at 151. The officer waited about 10 minutes
before that person, Brock, emerged, carrying a backpack. Id. The officer
identified himself, had Brock remove his backpack, and initiated a Terry3 stop
and frisk. Id. He also asked for Brock’s name; Brock provided a false one. Id.
For safety reasons, the officer took Brock’s backpack to his vehicle and placed it
on the passenger seat. Id. at 152.
After the officer determined that Brock had falsely identified himself, the
officer arrested Brock for providing false information. Id. Because Brock was
otherwise cooperative, the officer did not use handcuffs. Instead, he instructed
Brock to remain near the curb while the officer returned to his vehicle and
searched the backpack. Id. at 151-52. A search of the backpack yielded a wallet
3 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
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containing what appeared to be marijuana and methamphetamine as well as a
Department of Corrections inmate identification card with Brock’s photograph and
true name. Id. at 152. At this point, the officer handcuffed Brock and escorted
him into the back of the police vehicle. Id.
The officer then ran Brock’s name through a state database and
discovered that Brock had an outstanding felony arrest warrant. Id. After
confirming the warrant’s validity, the officer “had no choice” but to take Brock to
jail. Id. However, before doing so, the officer emptied the backpack’s contents,
discovering checks, credit cards, mail, and more suspected narcotics. Id. at 153.
Prior to his trial, Brock moved to suppress all evidence discovered during
the search of his backpack; the trial court denied this motion on the basis that the
search was valid as incident to his lawful arrest. Id. On appeal, we reversed the
trial court, reasoning that Brock did not have actual and exclusive possession of
the backpack immediately before the arrest. State v. Brock, 182 Wash. App. 680,
689, 330 P.3d 236 (2014). The Supreme Court reversed our decision, explaining
that
[b]ecause the search incident to arrest rule recognizes the
practicalities of an officer having to secure and transport personal
items as part of the arrestee’s person, we draw the line of
“immediately preceding” with that focus. The proper inquiry is
whether possession so immediately precedes arrest that the item is
still functionally a part of the arrestee’s person. Put simply,
personal items that will go to jail with the arrestee are considered in
the arrestee’s “possession” and are within the scope of the officer’s
authority to search.
Brock, 184 Wash. 2d at 158.
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Herein, while granting Burdick’s motion to suppress, the trial court quoted
the following passage from Brock:
Under these circumstances the lapse of time had little
practical effect on Brock’s relationship to his backpack. Brock wore
the backpack at the very moment he was stopped by Officer Olson.
The arrest process began the moment Officer Olson told Brock that
although he was not under arrest, he was also not free to leave.
The officer himself removed the backpack from Brock as a part of
his investigation. And, having no other place to safely stow it,
would have to bring the backpack along with him into custody.
184 Wash. 2d at 159 (emphasis added).
The trial court herein then noted that Burdick’s situation differed
from Brock’s situation in that Burdick’s backpack did not necessarily have
to travel with Burdick to jail. As the trial court stated in its memorandum
decision and again in its formal conclusions of law:
The facts in our present case are almost identical to those in Brock
except for one very critical difference. It is undisputed that
Defendant Burdick’s mother was present and he asked for
permission to give the backpack to her while he was detained. This
request was denied. There was a place to safely stow the pack
and it did not have to go along with him into custody.
After the trial court ruled in this case, we applied the holding in Brock in
deciding State v. Alexander, 10 Wash. App. 2d 682. Alexander is controlling.
In that case, a police officer approached Heather Alexander and her
friend, Delane Slater, who were sitting in a field in disregard of posted “no
trespass” signs. The officer informed the two that they were trespassing and
obtained their identifications. Alexander, 10 Wash. App. 2d at 685. Upon obtaining
Alexander’s identification, the officer found that she had an outstanding warrant
and placed her under arrest. As the officer was doing so, Slater offered to take
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Alexander’s backpack, which had not been on her person but which was nearby.
Id. Although Alexander agreed to this, the officer did not, and informed Slater
that Alexander’s personal property needed to remain with Alexander at all times
and would be searched incident to the arrest. Id.
After escorting Alexander into his patrol car, the officer searched the
backpack, discovered suspected controlled substances, and informed Alexander
that she was also under arrest for possession of a controlled substance. Id. at
685-86. Prior to trial, Alexander moved to suppress the narcotics evidence found
in her backpack on the basis that it was not obtained through a valid search
incident to her arrest. Id. at 686. The trial court denied the motion and
Alexander was ultimately convicted of possession of the controlled substance.
Id.
Alexander appealed, assigning error to the trial court’s denial of her
motion to suppress the evidence obtained in the search of her backpack.
Relying on Brock, we reversed the conviction. Alexander, 10 Wash. App. 2d at
686.
In doing so, we first noted that the State had failed to show Alexander’s
actual and exclusive possession of the backpack, a necessary prerequisite to
justify a valid search incident to arrest, at the time of the arrest. Id. at 692. We
then noted that “the scope of a warrant exception ‘must track its underlying
justification’” for the warrant. Id. at 693 (quoting Brock, 184 Wash. 2d at 158). We
then explained that
[t]o this end, the justification for warrantless searches of an
arrestee’s person (which require no justification beyond the validity
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of the arrest)—as distinct from grab area searches (which require
“some articulable concern that the arrestee can access the item in
order to draw a weapon or destroy evidence”)—is that “there are
presumptive safety and evidence preservation concerns associated
with police taking custody of those personal items immediately
associated with the arrestee, which will necessarily travel with the
arrestee to jail.” Brock, 184 Wash. 2d at 155 (emphasis added).
Here, as discussed, the State failed to establish that Alexander’s
backpack was in her actual and exclusive possession at or
immediately preceding the time of her arrest. Furthermore, Slater,
about whom Officer Moss expressed no safety concerns, offered to
take the backpack, and Alexander desired that Slater take it. Under
these circumstances, Alexander’s backpack was not an item
immediately associated with her person that would necessarily
travel to jail with her. Rather, the only reason the backpack
traveled to jail with Alexander was because Officer Moss decided
that it would. But the scope of the arrestee’s person is determined
by what must necessarily travel with an arrestee to jail, not what an
officer decides to take to jail.
Alexander, 10 Wash. App. 2d at 693-94 (emphasis added).
The Supreme Court’s decision in Brock, as explained by our decision in
Alexander, controls today’s decision. Burdick had the backpack on his person at
the time of his detention solely because the police refused to allow him to hand it
to his mother. Officers Schwahn and Nelson expressed no safety concerns that
would have necessitated preventing Burdick’s mother from assuming possession
of the backpack. The backpack did not need to travel with Burdick to jail and
only did so because Officer Schwahn decided that it must.4
4 The State also likens this case to State v. Byrd, 178 Wash. 2d 611. In Byrd, the defendant
was riding in a vehicle when police pulled the vehicle over and arrested the driver. Byrd, the
passenger, had a purse containing methamphetamine in her lap at the time of her own arrest.
Byrd, 178 Wash. 2d at 615. On these facts, the Supreme Court rejected Byrd’s contention that the
purse could have been left in the vehicle instead of coming with her to jail, reasoning that “Byrd’s
purse was unquestionably an article ‘immediately associated’ with her person” because “[t]he
purse left Byrd’s hands only after her arrest.” Byrd, 178 Wash. 2d at 623-24. As with Brock, Byrd is
distinguishable from Burdick’s situation, given the presence of a nondangerous third party willing
to take custody of the item in dispute.
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As the arresting officer did in Alexander, Officers Schwahn and Nelson
decided that Burdick would continue to possess the backpack during his
detention, and then decided that it would travel with Burdick to jail, by refusing to
allow him to dispossess it before these events transpired. Were it not for those
decisions, Burdick would not have possessed the backpack at the time of his
arrest, it would not have been searched incident to his arrest, it would not have
needed to travel to jail, and no evidence supporting his conviction for possession
of a controlled substance would have been before the jury. The trial judge
presciently anticipated the decision in State v. Alexander, 10 Wash. App. 2d 682.
The judge did not err by anticipating, and correctly applying, a controlling
appellate decision that had not yet been issued. The judge’s ruling was
exemplary.
Affirmed.
WE CONCUR:
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