State v. Parker

Thompson, J.^*

(dissenting) — The majority holds that a warrantless search of a passenger’s purse, and closed coin purse within the purse, is justified by nothing more than the arrest of a vehicle’s driver. I believe the search violated Ms. Parker’s right of privacy under the Washington Constitution, and I respectfully dissent.

Warrantless searches are per se unreasonable except in a few, established circumstances. State v. Johnson, 128 Wn.2d 431, 446-47, 909 P.2d 293 (1996). Among the exceptions recognized under both the federal and state constitutions are searches incident to lawful arrests. Id. at 443-56. Under this exception, "[djuring the arrest process, including the time immediately subsequent to the suspect’s being arrested, handcuffed, and placed in a patrol car, officers should be allowed to search the passenger compartment of a vehicle for weapons or destructible evidence.” State v. Stroud, 106 Wn.2d 144, 152, 720 P.2d 436 (1986).

In concluding the search of Ms. Parker’s purse was lawful, the majority relies on the bright-line rule, first articulated by the United States Supreme Court, that "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981). The majority apparently concludes this rule applies regardless of whether the person arrested is the same person whose property is searched.² The Washington Constitution protects against this sort of unjustified intrusion into the privacy of persons who arouse officers’ suspicions only by their association with arrestees.

In Stroud, the Washington Supreme Court considered Belton’s applicability in light of Const, art. I, § 7, which, "unlike any provision in the federal constitution, explicitly protects the privacy rights of Washington citizens.” Stroud, 106 Wn.2d at 148; see Johnson, 128 Wn.2d at 443-50. Stroud agreed with Belton that the exigencies of police safety and the possible destruction of evidence exist when a vehicle’s occupant is arrested. Stroud, 106 Wn.2d at 151. However, the Court held that these exigencies do not always allow a search in light of the Washington Constitution’s heightened protection of its citizens’ privacy. "Rather, these exigencies must be balanced against whatever privacy interests the individual has in the articles in the car.” Id. at 152.

Specifically, Stroud held the State’s interest in searching locked containers within the passenger compartment, while promoting officer safety and preserving evidence, did not outweigh the privacy interest of the owner. It reasoned: "First, by locking the container, the individual has shown that he or she reasonably expects the contents to remain private. Secondly, the danger that an individual either could destroy or hide evidence located within the container or grab a weapon is minimized.” Id. at 152 (citation omitted).

While Stroud specifically addressed locked containers, its reasoning should apply equally to Ms. Parker’s purse. First, our society undoubtedly regards the contents of a purse as more personal and more private than other personal property. Like the owner of a locked container, Ms. Parker had a reasonable expectation that her purse and its contents would remain private. Second, the search of Ms. Parker’s purse was not and cannot be justified by the officer’s fear that anyone could destroy evidence or grab a weapon. Neither Ms. Parker nor Mr. Thomas were capable of reaching the purse when it was seized from the vehicle’s passenger seat. The presence of $843 in cash, without more, did not raise a suspicion that the purse contained evidence of any crime.

As the Court noted in United States v. Ross, 456 U.S. 798, 825, 102 S. Ct. 2157, 72 L. Ed. 2d 572 (1982), "the scope of [a] warrantless search ... is no broader and no narrower than a magistrate could legitimately authorize by warrant.” Without any particularlized suspicion that the purse contained evidence of any crime, a magistrate certainly would refuse a warrant to search it. The purse’s mere presence in Mr. Thomas’ car should not permit a warrantless search even more invasive than would be permitted by a magistrate.

State v. Seitz, 86 Wn. App. 865, 941 P.2d 5 (1997), supports suppression. In that case, the court suppressed the fruit of a search of a passenger’s purse after arresting the vehicle’s driver. Rather than leaving the purse in the car (as Ms. Parker did in this case), the passenger took her purse with her as she got out of the car. The court observed:

The valid arrest of either the driver or passenger justifies a search of a purse found in the car, and without so holding, we assume this is true regardless of whether the purse belongs to the driver or the passenger. It is our view, however, that the valid arrest of a driver does not justify the search of a purse known to belong to a passenger, where the purse is not in the car at the time of the search, but rather is on the passenger’s person and the passenger is outside the car.

Id. at 869 (footnote omitted).

With the Stroud reasoning in mind, the search of Ms. Parker’s purse was even less justified than was the search in Seitz. A passenger’s expectation of privacy in a purse is similarly reasonable, regardless of whether it is on the passenger’s person or on the seat of a vehicle. More importantly, there is an even greater risk that the passenger in Seitz could destroy evidence in or grab a weapon from her purse, because the purse was on her person and thus easily within reach. Ms. Parker’s purse was not within her or Mr. Thomas’ reach. The officer had no justification for searching it.

The North Dakota Supreme Court reached a similar result in State v. Gilberts, 497 N.W.2d 93 (N.D. 1993), in which Patrolman Smith stopped a driver for speeding, then learned the driver’s license had been suspended and arrested him. Patrolman Smith asked the passenger, Mr. Gilberts, to get out so he could search the car. Id. at 95. As Mr. Gilberts got out of the car, Patrolman Smith picked up a jacket on the passenger’s seat, intending to give it to Mr. Gilberts because it was cold outside. Id. The officer noticed a large amount of cash in the jacket’s pocket, reached inside, and found a box containing a gram scale with cocaine residue on it. Id. The court held:

When Smith reached into Gilberts’s jacket pocket he knew that the jacket belonged to Gilberts, not the arrested driver .... Under these circumstances, we hold that the Belton rationale does not justify Smith’s search of Gilberts’s jacket. Standing alone, the driver’s arrest was an inadequate ground for this intrusion upon Gilberts’s constitutional rights against unreasonable search and seizure of his person and property.

Id. at 97.³

Article I, section 7 of Washington’s Constitution requires suppression of the evidence here. I would reverse the superior court’s order denying suppression.

Review granted at 134 Wn.2d 1024 (1998).

* Judge Philip J. Thompson was a member of the Court of Appeals at the time of hearing on this matter. He is now serving as a judge pro tempore of the court pursuant to RCW 2.06.150.

2 In Belton, the officers had arrested all of the occupants of the vehicle. The Supreme Court therefore had no occasion to consider the impact on privacy rights of other occupants who were not arrested. In this case, Ms. Parker was not under arrest, nor was there any cause for arresting her before the search. Authorities on which the State relies are distinguishable on this basis. See Johnson, 128 Wn.2d at 435; Stroud, 106 Wn.2d at 145; State v. Fore, 56 Wn. App. 339, 342, 783 P.2d 626 (1989), review denied, 114 Wn.2d 1011 (1990).

3 The majority attempts to distinguish Gilberts on the ground that the passenger’s jacket in that case was not within the driver’s reach. But both in Gilberts and in this case, the driver was outside the car at the time of the search and certainly was unable to reach the item inside. The analysis therefore should focus, as I do here, on whether the item’s owner "reasonably expects the contents to remain private.” Stroud, 106 Wn.2d at 152.