State v. Swetz , 160 Wash. App. 122 ( 2011 )

¶1 Joshua Swetz appeals his convictions for possession of a controlled substance and possession of marijuana, arguing the arresting officer’s warrantless search of his vehicle incident to his arrest violated his right to privacy under article I, section 7 of our state constitution. We reverse Swetz’s convictions and remand with instructions to suppress the evidence seized from his vehicle.

Armstrong, J.

FACTS

¶2 At 1:30 am on the morning of August 19, 2008, Officer Osterdahl was patrolling the city of Morton when Swetz flagged him down and told him that he had seen a black bear roaming the streets. Officer Osterdahl drove to the area that Swetz had described and saw a dog chasing a bear. Later that morning, Officer Osterdahl pulled up next to Swetz’s parked vehicle and Swetz approached the officer’s window. During their conversation, Officer Osterdahl noticed a “strong odor of burnt marijuana” on Swetz’s breath and person. Report of Proceedings (RP) at 27. Officer Osterdahl walked with Swetz back to his vehicle and saw a bag of marijuana sitting on the passenger seat.¹

¶3 Officer Osterdahl arrested Swetz for possession of marijuana, handcuffed him, placed him in the back seat of the patrol car, and advised him of his Miranda² rights. He then searched Swetz’s car and found additional containers of marijuana in the glove box, glass pipes with marijuana residue, and several containers of diazepam pills.³ The State charged Swetz with one count of possession of a controlled substance, diazepam, and one count of possession of marijuana, and a jury convicted him of both counts. RCW 69.50.4013(1), .4014.

ANALYSIS

I. Standard of Review

¶4 Swetz relies on State v. Patton, 167 Wn.2d 379, 219 P.3d 651 (2009), and State v. Valdez, 167 Wn.2d 761, 224 P.3d 751 (2009), to argue that Officer Osterdahl’s warrant-less search of his vehicle exceeded the scope of a permissible search incident to arrest under article I, section 7 of our state constitution. He concedes that Officer Osterdahl’s search was permissible under Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), and the Fourth Amendment to the federal constitution, but he argues that the search incident to arrest exception is narrower under article I, section 7.

A. Manifest Error

¶5 Swetz did not challenge Officer Osterdahl’s vehicle search at trial because Patton and Valdez were decided after his trial and convictions.⁴ Generally, we apply new constitutional rules of criminal procedure to all cases pending on direct review or not yet final. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987). And an appellant can raise an alleged error for the first time on appeal if it is manifest and affects a constitutional right. RAP 2.5(a)(3); State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).

¶6 The alleged error here affected Swetz’s constitutional right to privacy under article I, section 7 of our state constitution. See Valdez, 167 Wn.2d at 771-72; Patton, 167 Wn.2d at 385-86. The error is “manifest” if it is apparent in the record and actually affected Swetz’s rights. See McFarland, 127 Wn.2d at 333. Nothing in the record justifies Officer Osterdahl’s warrantless search of Swetz’s vehicle incident to his arrest, and the evidence seized from his vehicle provided the basis for the charges against him. As discussed in detail below, such a search exceeds the scope of a permissible search incident to arrest under our state constitution. The error is therefore manifest.

B. Waiver

¶7 There is presently a split within Division Two of this court regarding whether a defendant can challenge a search under Gant for the first time on appeal. See, e.g., State v. Harris, 154 Wn. App. 87, 98-99, 224 P.3d 830 (2010); State v. McCormick, 152 Wn. App. 536, 539-40, 216 P.3d 475 (2009); State v. Millan, 151 Wn. App. 492, 499-500, 212 P.3d 603 (2009), review granted, 168 Wn.2d 1005, 226 P.3d 781 (2010) . This split presumably applies to arguments raised for the first time on appeal under Patton and Valdez as well. We follow the cases holding that a defendant can challenge a vehicle search for the first time on appeal and hold that Swetz did not waive the right to challenge the search of his vehicle. See Harris, 154 Wn. App. at 98-99; McCormick, 152 Wn. App. at 539-40.

¶8 Additionally, the Supreme Court of Washington’s recent opinion in State v. Afana, 169 Wn.2d 169, 233 P.3d 879 (2010), supports considering Swetz’s argument for the first time on appeal even though the record regarding his arrest and the search of his car is not as developed as it would have been had Swetz moved to suppress the evidence below. The Afana court applied Gant, Patton, and Valdez without discussing waiver or retroactivity and held that a vehicle search violated article I, section 7 of our state constitution, even though the record regarding the arrest and search was poorly developed:

The suppression hearing . . . addressed the legality of the deputy’s request for Bergeron’s identification, not the arrest and search incident to arrest. Thus, the trial court did not make specific findings of fact regarding Bergeron’s arrest, finding only that the deputy “arrested the passenger on the warrant.”

Afana, 169 Wn.2d at 174 n.1 (citation omitted). The Afana court reasoned that “it is the State’s burden to show that the automobile search incident to arrest exception applies” and “[njothing in the record justifies the search that took place here as incident to arrest ” Afana, 169 Wn.2d at 178 & n.4. Thus, we address the merits of Swetz’s arguments.

II. Search Incident to Arrest

¶9 Both the Fourth Amendment to the federal constitution and article I, section 7 of our state constitution prohibit warrantless searches unless one of the narrow exceptions to the warrant requirement applies.⁵ See Valdez, 167 Wn.2d at 768, 771-72; State v. Winterstein, 167 Wn.2d 620, 628, 220 P.3d 1226 (2009). Article I, section 7 provides more extensive privacy protections than the Fourth Amendment and creates “ ‘an almost absolute bar to warrantless arrests, searches, and seizures.’ ” Valdez, 167 Wn.2d at 772 (quoting State v. Ringer, 100 Wn.2d 686, 690, 674 P.2d 1240 (1983)).

¶10 In Gant, the Supreme Court held that a search incident to arrest under the Fourth Amendment may be justified by three separate bases — officer safety, the preservation of evidence, and searching for evidence of the crime of arrest:

[T]he Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.

Although it does not follow from Chimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”

Gant, 556 U.S. at 343 (footnote omitted) (citing Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969) and quoting Thornton v. United States, 541 U.S. 615, 632, 124 S. Ct. 2127, 158 L. Ed. 2d 905 (2004) (Scalia, J., concurring)).

¶11 In contrast, the Supreme Court of Washington held in Patton that a search incident to arrest under article I, section 7 must be justified by concerns for officer safety or the preservation of evidence:

Today we hold that the search of a vehicle incident to the arrest of a recent occupant is unlawful absent a reasonable basis to believe that the arrestee poses a safety risk or that the vehicle contains evidence of the crime of arrest that could be concealed or destroyed, and that these concerns exist at the time of the search.

Patton, 167 Wn.2d at 394-95 (emphasis added). The Patton court also expressly disapproved of prior cases that applied the search incident to arrest exception to situations where the arrestee was secured and no longer posed a risk to the arresting officers:

[W]e also recognize that we have heretofore upheld searches incident to arrest conducted after the arrestee has been secured and the attendant risk to officers in the field has passed. Today, we expressly disapprove of this expansive application of the narrow search incident to arrest exception.

Patton, 167 Wn.2d at 395. The Patton court did not carve out an additional exception allowing officers to search for evidence of the crime of arrest once the arrestee is secured.

f 12 In Valdez, our Supreme Court recently elaborated upon the search incident to arrest exception and reasoned that the exception applies only when officers are unable to delay their search to obtain a warrant because the arrestee poses a threat to officer safety or the preservation of evidence:

[W]hen an arrest is made, the normal course of securing a warrant to conduct a search is not possible if that search must be immediately conducted for the safety of the officer or to prevent concealment or destruction of evidence of the crime of arrest. However, when a search can be delayed to obtain a warrant without running afoul of those concerns (and does not fall under another applicable exception), the warrant must be obtained. A warrantless search of an automobile is permissible under the search incident to arrest exception when that search is necessary to preserve officer safety or prevent destruction or concealment of evidence of the crime of arrest.

Valdez, 167 Wn.2d at 777 (emphasis added). The Valdez court then held that the search incident to arrest exception does not apply once the arrestee is handcuffed and secured in the back of a patrol car:

Here, at the time of the search the arrestee was handcuffed and secured in the back seat of a patrol car. The arrestee no longer had access to any portion of his vehicle. The officers’ search of his vehicle was therefore unconstitutional under both the Fourth Amendment and article I, section 7.

Valdez, 167 Wn.2d at 778. When summarizing its holding, the Valdez court again emphasized that a search incident to arrest is valid only when certain circumstances preclude officers from first obtaining a warrant:

The search [here] was conducted without a warrant even though the circumstances did not preclude officers from obtaining one prior to the search. There was no showing that a delay to obtain a warrant would have endangered officers or resulted in evidence related to the crime of arrest being concealed or destroyed. As such, the warrantless search violated article I, section 7 of the Washington Constitution ....

Valdez, 167 Wn.2d at 779 (emphasis added).

¶13 Significantly, the Valdez court expressly recognized that Gant allows officers to search for evidence of the crime of arrest during a search incident to arrest under the Fourth Amendment:

Independent of the rationale in Chimel, the Supreme Court reasoned that “circumstances unique to the vehicle context” justified another basis for a warrantless search . . . when it is “ ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.’ ”

Valdez, 167 Wn.2d at 771 (quoting Gant, 556 U.S. at 343 (quoting Thornton, 541 U.S. at 632) (Scalia, J., concurring)). But the Valdez court chose not to extend its own holding to include this justification. See Valdez, 167 Wn.2d at 777, 779.

f 14 Thus, under Patton and Valdez, article I, section 7 limits a search incident to arrest to situations where threats to officer safety or the preservation of evidence prevent the arresting officer from delaying the search to obtain a warrant.⁶ See Valdez, 167 Wn.2d at 777; Patton, 167 Wn.2d at 394-95. Here, Officer Osterdahl testified that he handcuffed Swetz and placed him in the patrol car before searching the vehicle. Officer Osterdahl also testified that Swetz was the sole occupant of the vehicle and no one else was in the vicinity at the time of the arrest and search. Furthermore, the State acknowledges that it “appears that the Washington Supreme Court’s recent Valdez opinion forecloses such an ‘evidence-of-the-crime-of-arrest’ vehicle search where, as here, the sole occupant of the vehicle has been handcuffed and placed in the patrol car” Br. of Resp’t at 5. The State also concedes that if searching for evidence of the crime of arrest does not, alone, justify a search incident to arrest under article I, section 7, “then the search of [Swetz’s] vehicle was indeed unlawful, and this case must be reversed and dismissed.” Br. of Resp’t at 6. We agree.

III. Open View Observation and Warrantless Seizure

A. State Has Burden of Proving Exceptions to Warrant Requirement

f 15 Despite the State’s concessions, the dissent argues that we mischaracterize the facts and should hold that Officer Osterdahl’s warrantless seizure of the marijuana sitting in open view on the passenger seat was justified under the exigent circumstances exception. But the dissent relies on an exception that the State did not advocate, as well as facts that were not admitted into evidence below.

¶16 The only exception that the State argues applies in this case is the search incident to arrest exception. The State is familiar with the facts and chose not to argue that exigent circumstances justified seizing the items in open view. There are “a few jealously guarded exceptions” to the warrant requirement, and “ [i]t is always the State’s burden to establish that such an exception applies.” Afana, 169 Wn.2d at 177; see also State v. Tibbles, 169 Wn.2d 364, 372, 236 P.3d 885 (2010). It is not the reviewing court’s burden to show that a particular exception applies, particularly one the State has not raised.

¶17 Furthermore, the dissent relies on a police report that it acknowledges was not admitted into evidence to argue that Officer Osterdahl seized the evidence in open view before arresting Swetz, therefore the seizure was not part of the subsequent search incident to arrest. In the report, Officer Osterdahl states that after observing the marijuana on the passenger seat and glass pipes on the floor, “I took custody of these items and placed Swetz under arrest.” Clerk’s Papers at Ex. 2. This statement does not conclusively establish the sequence of events. Officer Osterdahl does not say he seized the items and then arrested Swetz; he could simply be stating that both events occurred around the same time. In contrast, Officer Osterdahl’s testimony at the CrR 3.5 hearing was very specific:

[Officer]: I observed in plain view some glass pipes with burnt residue ... and a clear plastic baggie with some green vegetable matter in it.

[Counsel]: What did you do next?

[Officer]: I placed Mr. Swetz under arrest.

RP at 16. Later, he again testified:

[Officer]: I looked in the vehicle, the driver’s door was open, and right on the passenger front seat was a clear plastic baggie of green vegetable matter. . . .

[Counsel]: So what did you do?

[Officer]: I placed Mr. Swetz under arrest for possession of marijuana.

RP at 28. Finally, and perhaps most importantly, the State concedes that “Swetz was apparently already in handcuffs at the time the officer searched the vehicle” and it does not argue that Officer Osterdahl seized any evidence prior to arresting Swetz. Br. of Resp’t at 6. It is entirely inappropriate for us to rewrite facts that both parties have agreed on.

B. Open View Observation

¶18 Had the State argued that exigent circumstances justified seizing the items in open view, we would agree with the dissent’s description of the open view doctrine but disagree with its conclusion that exigent circumstances justified a warrantless seizure here.

¶19 When a law enforcement officer observes something in open view from a lawful vantage point, the observation is not a “search” triggering the protections of article I, section 7. State v. Kennedy, 107 Wn.2d 1, 10, 726 P.2d 445 (1986); State v. Seagull, 95 Wn.2d 898, 901, 632 P.2d 44 (1981). But the officer’s right to seize the items observed must be justified by a warrant or valid exception, if the items are in a constitutionally protected area. Kennedy, 107 Wn.2d at 9-10. As the Kennedy court explained:

[I]f an officer, after making a lawful stop, looks into a car from the outside and sees a weapon or contraband in the car, he has not searched the car. Because there has been no search, article 1, section 7 is not implicated. Once there is an intrusion into the constitutionally protected area, article 1, section 7 is implicated and the intrusion must be justified if it is made without a warrant.

Kennedy, 107 Wn.2d at 10; see also State v. Myrick, 102 Wn.2d 506, 514-15, 688 P.2d 151 (1984) (“ ‘[P]lain view alone is never enough to justify the warrantless seizure of evidence. . . . [E]ven where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.’ ” (quoting Coolidge v. New Hampshire, 403 U.S. 443, 468, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971))); State v. Lemus, 103 Wn. App. 94, 102, 11 P.3d 326 (2000) (“The ‘open view’ observation is thus not a search at all but may provide evidence supporting probable cause to constitutionally search; in other words, a search pursuant to a warrant.”).⁷

C. Exigent Circumstances

f 20 The dissent maintains that the exigent circumstances exception to the warrant requirement justified seizing the items in open view here. See State v. Young, 28 Wn. App. 412, 417-18, 624 P.2d 725 (1981) (holding that to justify the warrantless seizure of tools in open view inside a vehicle, the police must have had probable cause to believe the tools were instrumentalities of a crime and be faced with exigent circumstances that make it impracticable to obtain a warrant). Exigent circumstances include “ ‘(1) hot pursuit; (2) fleeing suspect; (3) danger to arresting officer or to the public; (4) mobility of the vehicle; (5) mobility or destruction of the evidence.’ ” Tibbles, 169 Wn.2d at 370 (quoting State v. Counts, 99 Wn.2d 54, 60, 659 P.2d 1087 (1983)). That one of these circumstances is present does not necessarily justify a warrantless search or seizure; a court must take the particular facts of each case into consideration. Tibbles, 169 Wn.2d at 370.

|21 In Tibbies, an officer stopped a car around midnight, smelled marijuana, searched the car without arresting the driver, and found marijuana. Tibbles, 169 Wn.2d at 367-68. Our Supreme Court held the State failed to show exigent circumstances justified the warrantless search where the driver was alone, complied with the trooper’s requests and showed no sign of attempting to flee, and the destruction of evidence was not imminent because he was standing outside the vehicle. Tibbles, 169 Wn.2d at 371-72. The court concluded:

To find exigent circumstances based on these bare facts would set the stage for the exigent circumstances exception to swallow the general warrant requirement. It would give the erroneous impression that an exigency may be based on little more than a late-night stop for defective equipment, an officer working alone, and circumstances indicating possible drug possession.

Tibbles, 169 Wn.2d at 372. The court also observed that “[a]t best, the State has shown it was expedient for Trooper Larsen to conduct the search as he did” but “ ‘mere convenience is simply not enough.’ ” Tibbles, 169 Wn.2d at 372 (quoting State v. Patterson, 112 Wn.2d 731, 734, 774 P.2d 10 (1989)).

¶22 Similarly, Swetz was outside the vehicle, his interactions with Officer Osterdahl earlier in the evening had been friendly and helpful, and nothing in the record suggests that he attempted to flee or posed any sort of threat to the officer or the evidence in the car. The exigencies that the dissent relies on either are hypothetical or were rejected by Tibbies — Officer Osterdahl was working alone, Swetz was unsecured and might present a risk of flight or destruction of evidence, and Swetz’s companion might return. See Tibbles, 169 Wn.2d at 372. And if, as the dissent contends, Officer Osterdahl collected the items in open view before arresting and securing Swetz, then the officer’s actions demonstrate that he did not believe Swetz posed a threat or was likely to flee. As the Tibbies court stated, “To find exigent circumstances based on these bare facts would set the stage for the exigent circumstances exception to swallow the general warrant requirement.” Tibbles, 169 Wn.2d at 372.

¶23 In sum, we hold that under Patton and Valdez, article I, section 7 limits a search incident to arrest to situations where threats to officer safety or the preservation of evidence prevent the arresting officer from delaying the search to obtain a warrant. See Valdez, 167 Wn.2d at 777; Patton, 167 Wn.2d at 394-95. Because the State concedes that the search here was conducted incident to Swetz’s arrest and neither of those concerns existed at the time of the search, we reverse Swetz’s convictions and remand with instructions to suppress the evidence. Although it is unnecessary to consider whether exigent circumstances justified seizure of the items in open view because the State has not argued that exception applies, we also note that the record does not show exigent circumstances were present in this case.

¶24 Reversed and remanded.

Van Deren, J., concurs.

1 The police report the dissent relies on states that Officer Osterdahl also saw glass pipes on the floor of the car. As discussed below, the report was not admitted into evidence. At trial, Officer Osterdahl testified that he found the glass pipes while searching the car after arresting Swetz.

2 Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 Diazepam is a depressant commonly known as Valium.

4 Swetz’s trial took place in June 2009. Patton was decided on October 22,2009, and Valdez was decided on December 24, 2009. See Valdez, 167 Wn.2d at 761; Patton, 167 Wn.2d at 379.

5 The Fourth Amendment provides, “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 ...” Article I, section 7 provides, “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.”

6 While the dissent argues that Patton and Valdez are distinguishable because neither involved a case where the officer was searching for evidence of the crime of arrest, we are not persuaded that these factual distinctions are grounds for ignoring clear language from our Supreme Court regarding the proper scope and application of the search incident to arrest exception under article I, section 7.

7 The dissent cites State v. Louthan, 158 Wn. App. 732, 242 P.3d 954 (2010), in its discussion of the open view doctrine. While Louthan accurately describes the open view doctrine, it then concludes that an officer’s open view observation of contraband inside a car justified the officer’s intrusion into the vehicle and seizure of the contraband. Louthan, 158 Wn. App. at 746. Although Louthan relies on Seagull, 95 Wn.2d 898, Seagull does not support the proposition that an open view observation alone justifies a warrantless seizure. In Seagull, an officer looked into a greenhouse and observed a plant that the officer believed was marijuana. Seagull, 95 Wn.2d at 900. The officer then obtained a warrant to enter the greenhouse and seize the plant. Seagull, 95 Wn.2d at 900. On appeal, the defendant argued that the officer’s initial observation was not an open view observation and our Supreme Court concluded the officer viewed the plant from a lawful vantage point. Seagull, 95 Wn.2d at 901-05.