State Of Washington v. Danika Elizabeth Vanway ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
DIVISION ONE
Respondent,
No. 80138-4-I
v.
UNPUBLISHED OPINION
DANIKA ELIZABETH VANWAY,
Appellant.
DWYER, J. — After a trial on stipulated evidence, Danika Vanway was
convicted of possession of a controlled substance (methamphetamine) while she
was on community custody. Vanway appeals, claiming that the trial court erred
by denying her motion to suppress evidence of the methamphetamine
discovered during a warrantless search of her backpack. Vanway asserts that
the trial court improperly concluded that the search fell within the exception to the
warrant requirement for searches of an arrestee’s person conducted incident to
arrest. Additionally, Vanway contends that RCW 69.50.4013—a criminal statute
proscribing the possession of a controlled substance—violates due process
because it is a strict liability offense. Her latter argument is without merit.
However, the State did not prove that Vanway’s backpack was an item that must
have necessarily travelled with Vanway to jail. Thus, the State failed to establish
that the search incident to arrest exception to the warrant requirement was
applicable. Accordingly, we reverse.
No. 80138-4-I/2
I
On December 13, 2018, Officers Jason Tutchtone and Thaddeus Halbert
observed a car parked in Everett’s Henry Jackson Park while they were
“conducting a check” from their patrol vehicle. Officer Tutchtone noticed that a
man and a woman occupied the car. According to Officer Halbert, the car
appeared to be “kind of out of place.” Officer Tutchtone conducted a computer
check of the vehicle’s license plate number. This revealed a Department of
Corrections arrest warrant for Danika Vanway. Although the license plate search
indicated that Vanway was “associated with” the car, she was not the registered
owner. The search also produced photographs of Vanway, which revealed that
she had red hair. Officer Tutchtone observed that the woman inside the car
appeared to have red hair.
Officer Halbert parked the patrol car behind the vehicle. Jazper Reece
stepped out of the car from its driver’s side door. Reece identified the passenger
as “Danika,” and Officer Tutchtone recognized Vanway sitting in the passenger
seat. Upon identifying Vanway, Officer Tutchtone noticed a black backpack on
the car floor that “appeared to be in between her right and left foot in the
passenger compartment of the vehicle.” Officer Tutchtone testified that “the
backpack was touching [Vanway] . . . approximately from her ankles to roughly
her kneecaps.” Vanway’s hands were occupied and she was not holding the
backpack.
Officer Tutchtone then informed Vanway that she had a warrant out for her
arrest and that he was placing her under arrest. Vanway exited the vehicle and
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Officer Tutchtone placed handcuffs on her wrists. Officer Tutchtone then
conducted a search of Vanway’s person and advised her of the Miranda 1 rights.
Vanway confirmed that she understood the Miranda rights.
Officer Tutchtone then asked Vanway whether the backpack in the vehicle
belonged to her. Vanway confirmed that the backpack was hers. Officer Halbert
removed the backpack from the vehicle and carried it over to the patrol vehicle.
Officer Tutchtone began to search the backpack. At the time of the search,
Reece was “seated on the sidewalk.” Officer Halbert told Reece that he “was no
longer needed in the area and . . . asked him to move along.”
Officer Halbert then assisted Officer Tutchtone in searching the backpack.
They found a purple cylinder that contained a substance appearing to be
methamphetamine.
Officer Tutchtone testified that, either while or after searching a bag, his
practice was to ask arrestees if they wanted their bags to travel with them to jail.
Specifically, Officer Tutchtone stated:
[U]sually, as we are arresting people that have possession of bags,
we will search and ask them where they would want the bags to go.
There are several opportunities, or choices; they can either go to
the county jail with them, they can be impounded in our property
room. Or if they have somebody on scene with them, they can
choose to take whatever they want out of the bag and then leave
the rest of the belongings with the person.
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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However, Officer Tutchtone did not recall explaining these options to
Vanway. After the search, Officer Halbert took Vanway to the Snohomish County
Jail. 2
The State charged Vanway with one count of possession of a controlled
substance (methamphetamine) committed while on community custody. Prior to
trial, Vanway moved to suppress the evidence of the methamphetamine,
asserting that the search of her backpack was an invalid search incident to
arrest. The trial court denied the motion to suppress. In its findings of fact and
conclusions of law, the trial court concluded that the backpack was “immediately
associated with [Vanway’s] person and [Vanway] had actual or exclusive
possession of the backpack at or immediately preceding the time of arrest.”
Following a bench trial on stipulated evidence, Vanway was convicted of
possession of a controlled substance. The trial court sentenced her to three
months of incarceration and 12 months of community custody.
Vanway appeals.
II
Vanway first contends that the trial court erred by denying her motion to
suppress. Specifically, Vanway contends both that the backpack was not proved
to be in her actual and exclusive possession immediately prior to the search and
that the backpack was not proved to be an item that necessarily had to travel
with her to jail. Because we deem the second question dispositive, we need not
2
On the way to the county jail, Officer Halbert dropped Officer Tutchtone off at the north
precinct so that Officer Tutchtone could weigh the methamphetamine and arrange for its storage
pending trial.
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address the first question. The State failed to meet its burden to establish that
the search incident to arrest exception to the warrant requirement applied
because the backpack was not proved to be an item that necessarily had to
travel with Vanway to jail. Thus, the trial court erred by denying the motion to
suppress.
A
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 Wn.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 Wn.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 Wn.2d 166, 171, 43 P.3d
513 (2002).
B
The Washington State Constitution provides that “[n]o person shall be
disturbed in his private affairs, or his home invaded, without authority of law.”
WASH. CONST. art. I, § 7. “Under article I, section 7, a warrantless search is per
se unreasonable unless the State proves that one of the few ‘carefully drawn and
jealously guarded exceptions’ applies.” State v. Byrd, 178 Wn.2d 611, 616, 310
P.3d 793 (2013) (quoting State v. Bravo Ortega, 177 Wn.2d 116, 122, 297 P.3d
57 (2013)). The State’s burden of proof in this context is a “heavy burden.” State
v. Parker, 139 Wn.2d 486, 496, 987 P.2d 73 (1999).
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The warrant exception at issue is the exception for searches incident to
arrest. 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
Wn.2d 148, 154, 355 P.3d 1118 (2015). This case involves a search of the
arrestee’s person.
An item is part of an arrestee’s person if the arrestee had “actual and
exclusive possession at or immediately preceding the time of arrest.” Byrd, 178
Wn.2d at 623. Furthermore, the scope of any exception to the warrant
requirement “must track its underlying justification.” Brock, 184 Wn.2d at 158.
The justification for warrantless searches of the arrestee’s person 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 Wn.2d
at 155 (emphasis added). Accordingly, “the scope of an arrestee’s person is
determined by what must necessarily travel with an arrestee to jail, not what an
officer decides to take to jail.” State v. Alexander, 10 Wn. App. 2d 682, 694, 449
P.3d 1070 (2019), review denied, 195 Wn.2d 1002 (2020).
C
Here, the State failed to meet its “heavy burden” to prove that a
warrantless search of Vanway’s backpack fell within the exception to the warrant
requirement for searches of an arrestee’s person incident to arrest. Parker, 139
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Wn.2d at 492-93, 496. Specifically, the State did not prove that Vanway’s
backpack was an item that necessarily had to go to jail with her.
At the hearing, the trial judge indicated a familiarity with State v.
Alexander. In our opinion in Alexander, we held that a backpack was not within
the scope of an arrestee’s person because “[a third party,] about whom [the
police officer] expressed no safety concerns, offered to take the backpack, and
[the arrestee] desired that [the third party] take it.” 10 Wn. App. 2d at 694. We
reasoned that the “backpack was not an item immediately associated with [the
arrestee’s] person that would necessarily travel to jail with her.” Alexander, 10
Wn. App. 2d at 694.
Similarly, at the time of Vanway’s detention, Reece, the driver of the
vehicle in which Vanway was a passenger, was sitting on a nearby sidewalk.
Officer Tutchtone testified that his usual practice was to inform arrestees, either
while or after searching a bag, that “they can choose to . . . leave [their]
belongings with” another person “if they have somebody on scene with them.”
However, he also testified that he did not recall asking whether Vanway wanted
to leave the backpack with Reece while she was taken to jail. And, in any
event, Alexander requires that such an inquiry be made before, not during or
after, a search. Just as a valid warrant must be extant prior to a search, so must
the lawful justification for a warrantless search exist prior to the commencement
of a search.
It is the State—not the defendant—that bears the “heavy burden” of
proving that an exception to the warrant requirement applies. Parker, 139 Wn.2d
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at 496. “[T]he 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 Wn. App. 2d at 694. Thus, the State bore the burden of
proving that Reece was unwilling or unable to take custody of the backpack or
that Vanway was unwilling to grant him custody of the item. The State did
neither. Nor did it present evidence that the option was broached to either
person. This is a simple failure of proof.
Indeed, the State did not introduce any evidence that Reece was unwilling
or unable to take custody of Vanway’s backpack while she went to jail. In Brock,
our Supreme Court upheld a search of an arrestee’s backpack when there was
no third party available to take custody of the backpack when the arrestee was
taken to jail. The court explained that “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 Wn.2d at 158. Because the
arrestee “ha[d] no other place to safely stow [the backpack], [he] would have to
bring the backpack along with him into custody.” Brock, 184 Wn.2d at 159. Not
so here. Officers Tutchtone and Halbert expressed no safety concerns regarding
Reece. The evidence established that he had some type of personal relationship
with Vanway. This raised a question of fact as to whether the backpack
necessarily had to go to the jail along with Vanway. The State did not present
evidence on this question. Instead, the evidence was that, while officer
Tutchtone was already searching the backpack, Officer Halbert told Reece that
he “was no longer needed in the area and . . . asked him to move along.” The
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No. 80138-4-I/9
evidence is that the officers decided to take the backpack to jail with Vanway.
This is insufficient. Alexander, 10 Wn. App. 2d at 694.
Accordingly, the trial court erred in denying the motion to suppress.
III
Vanway additionally asserts that RCW 69.50.4013—a statute proscribing
possession of a controlled substance—violates due process by imposing strict
liability for the possession of a controlled substance. However, Washington
courts have upheld this statute despite challenges to its constitutionality as a
strict liability offense. See State v. Bradshaw, 152 Wn.2d 528, 539-40, 98 P.3d
1190 (2004) (“Where legislative intent is so clear, we will not . . . read a mens rea
element into [RCW 69.50.4013].”); State v. Schmeling, 191 Wn. App. 795, 801,
365 P.3d 202 (2015) (“We hold that RCW 69.50.4013 does not violate due
process even though it makes possession of drug residue a crime without
requiring any culpable mental state.”).
Our Supreme Court has also upheld RCW 69.50.401, a companion statute
to RCW 69.50.4013, 3 even though it does not require a mens rea element. State
v. Cleppe, 96 Wn.2d 373, 380, 635 P.2d. 435 (1981) (stating that any change to
RCW 69.50.401 as a strict liability offense “must be corrected by the legislature,
3 RCW 69.50.4013 proscribes the following conduct:
It is unlawful for any person to possess a controlled substance unless the
substance was obtained directly from, or pursuant to, a valid prescription or order
of a practitioner while acting in the course of his or her professional practice, or
except as otherwise authorized by this chapter.
RCW 69.50.4013(1).
Similarly, RCW 69.50.401 provides: “Except as authorized by this chapter, it is unlawful
for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a
controlled substance.” RCW 69.50.401(1).
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not the court”). The court explained that the affirmative defense of unwitting
possession has been adopted by our courts to “ameliorate[] the harshness of the
almost strict criminal liability our law imposes for unauthorized possession of a
controlled substance.” Cleppe, 96 Wn.2d at 380-81.
Based on this authority, it is plain that RCW 69.50.4013 does not violate
due process by imposing strict liability for the possession of a controlled
substance. Vanway’s claim to the contrary fails.
Reversed and remanded.
We concur:
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