FACTS
¶2 On the morning of February 25, 2013, A.A.’s mother called Yakima police to report that her 15-year-old son, A.A., had run away from home. She told the responding police officer, Cesar Escamilla, that she believed A.A.’s probation officer would issue a warrant for A.A.’s arrest, and asked the officer to transport A. A. to the Crisis Residential Center (CRC), a secure facility for juveniles, if police found him. Later that day, Officer Escamilla found A.A. walking down an alley a few blocks north of his mother’s house. The officer stopped and detained A.A., intending to take him to the CRC. Aware that the CRC had a policy of searching all youth before admitting them to the facility,
¶3 A.A. moved to suppress the evidence as the product of an unlawful search. At the CrR 3.6 hearing, Officer Escamilla testified that A.A. was “[j]ust walking down an alley” and appeared “upset,” but that he was not engaged in criminal activity and did not appear dangerous to himself or others. Report of Proceedings (RP) at 12-13. He testified that Yakima Police Department policy requires police to search a passenger for weapons prior to transport in a patrol car but admitted that his search of A.A. was more intrusive because the CRC does not allow narcotics. He explained, “I’m searching for any objects, any items that— youth may have either in his pockets, hidden, anything besides clothing.” RP at 9. Officer Escamilla admitted that he did not feel anything resembling a weapon during the pat-down search and that no CRC staff member was present.
¶4 A.A. argued that the officer could lawfully conduct a pat-down search for weapons prior to transporting A.A. to the CRC but that the search into his pockets exceeded the scope of a reasonable pat-down for weapons. He argued, “[J]ust because the CRC has a policy regarding searches does not mean that that trumps the — my client’s constitutional rights. [I]f they want to do whatever they need to do to keep their facility safe, they can do that. However, to require law enforcement to do that is clearly unconstitutional because that does not fit an exception of the — the requirement to have a warrant before searching my client’s person.” RP at 23. The State countered that “a second search would happen anyway” and that “[t]he justification for the search was in existence at the time respondent was taken into custody. He was going someplace secure; he needed to be searched.” RP at 28, 26.
¶5 The trial court denied A.A.’s motion to suppress. Its written conclusions of law provided in part (1) a civil commitment search is not limited to patting the detained person for weapons, (2) the pat-down search was authorized under Terry
¶6 In a stipulated facts bench trial, the trial court found A.A. guilty as charged. A.A. appeals the denial of his suppression motion.
ANALYSIS
¶7 The sole issue on appeal is whether the trial court erred when it concluded Officer Escamilla’s search of A.A. was reasonable under the Family Reconciliation Act (Act), chapter 13.32A RCW, because A.A. was going to be transported to the CRC, a secure facility for juveniles, which requires a search of juveniles before admission. This question appears to be one of first impression in this state and requires us to evaluate what search and seizure standards apply to a civil protective custody detainee under the Act.
¶8 A.A. does not dispute that Officer Escamilla had the authority to detain him under the Act or that the officer had the authority to conduct a pat-down search for weapons; rather, he argues that the State failed to establish that the search of his pockets fell under any of the prescribed exceptions to the search warrant requirement. A.A. focuses his argument on the emergency exception, maintaining that it does not apply because A.A. was not a danger to himself or others. He contends it is improper to “extend[ ] the emergency situation exception to the warrant requirement to searches of juveniles following civil detention pursuant to RCW 13.32A.050.” Br. of Appellant at 10.
¶9 The State counters that the search was impliedly authorized under the Act because the purpose of the statute is to protect children who present a danger to themselves. It contends that the “timing of the search is of no consequence” because “[A.A.] was going to go to the crisis residential center which requires this officer to search [A.A.] before he would be allowed to enter.” Br. of Resp’t at 7. The State analogizes the search to a search incident to arrest that “ ‘can occur prior to the arrest, so long as a sufficient basis for the arrest existed before the search commenced.’ ” Br. of Resp’t at 9 (quoting State v. Chavez,
Standard of Review
¶10 We review a trial court’s decision on a motion to suppress for substantial evidence. State v. Schultz,
Fourth Amendment to the United States Constitution
¶11 The Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution prohibit unreasonable searches and seizures. State v. Williams,
Civil Protective Custody Situation
¶12 Washington’s Family Reconciliation Act authorizes a police officer to take a juvenile into civil custody “[i]f a law enforcement agency has been contacted by the parent of the child that the child is absent from parental custody without consent.” RCW 13.32A.050(l)(a). The Act “clearly is designed to promote the public interest in the safety of children.” State v. Kinzy,
¶13 Relying primarily on State v. Dempsey, 88 Wn. App. 918,
¶14 The defendant challenged the search, arguing that his civil detention was pretextual because officers knew he had recently used drugs. We initially noted that the officers properly detained Mr. Dempsey under chapter 71.05 RCW because it was reasonable to believe that “Mr. Dempsey was a substantial and imminent threat to himself and others.” Id. at 923-24. We stated that “[a] search incident to a civil detention is not limited by Terry considerations” because the only purpose of a Terry search is officer safety, whereas a civil custody search has the “primary purpose of protecting, not the officer, but the affected individual and others who may come into contact with him while rendering aid.” Id. at 924 (footnote omitted). Thus, in view of Mr. Dempsey’s acutely paranoid state, this court held that a search incident to a civil commitment detention is not limited to a weapons pat down because the arresting officer has a duty “to identify and remove anything with which [a defendant] might harm himself or others, including street drugs.” Id. This court concluded:
The search here falls into the “emergency situation” exception to the warrant requirement. This exception permits a warrant-less search to whatever extent is objectively reasonable to carry out the police caretaking function, given the circumstances reasonably perceived by the officer at the scene at the time. During an intervention, the officer may search for any dangerous instrumentality. There need be only “some reasonable basis to associate the emergency with the place to be searched.”
Id. (citations omitted) (quoting State v. Lynd,
¶15 This case is distinguishable from Dempsey. First, Washington’s involuntary treatment act (ITA), chapter 71.05 RCW, and the Family Reconciliation Act, chapter 13.32A RCW, serve different purposes and, therefore, lend themselves to different search standards. The purpose of the ITA is to protect persons who present an imminent risk of harm to themselves or others. RCW 71.05.153(1). Thus, the purpose of a search impliedly authorized under the statute is the protection of the unstable individual, police officers, or others from imminent harm. By its very language, the statute encompasses the
¶16 Here, in contrast to Dempsey, the detainee did not pose an imminent threat of harm to himself or others. Officer Escamilla testified that A.A. was simply walking down the street and did not appear dangerous. In fact, the officer admitted that the search was conducted for the purpose of finding weapons or street drugs because CRC prohibited contraband at its facility. Thus, unlike Dempsey, the initial pat down for weapons was sufficient to protect the officer.
¶17 Kinzy is helpful to our analysis. In that case, at around 10:00 p.m. on a school night, police officers saw a young female who appeared to them to be between 11 and 13 years old. Kinzy,
¶18 At the suppression hearing, a police officer testified that he stopped Ms. Kinzy out of concern for her safety, not suspicion of criminal activity. Division One of this court concluded that the initial seizure of Ms. Kinzy was valid under the community caretaking function, the protective frisk was valid under Terry and the plain view observation, and “seizure” of the cocaine flecks was valid under the plain view exception. Id. at 381-82.
¶19 Our Supreme Court reversed, noting that the community caretaking function involves a situation of lesser urgency and searches resulting in less intrusion than the emergency exception. Id. at 386. The court noted that “a person may encounter police officers in situations involving not only emergency aid, but also involving a routine check on health and safety.” Id. at 387. It stated that once the exception applies, “police officers may conduct a noncriminal investigation so long as it is necessary and strictly relevant to performance of the community caretaking function. The noncriminal investigation must end when reasons for initiating an encounter are fully dispelled.” Id. at 388 (emphasis added) (footnote omitted).
¶20 Applying these principles to the facts of that case, the court held that the initial preseizure encounter was reasonable under the community caretaking function exception but that police should have allowed Ms. Kinzy to walk away because their interest in maintaining the safety of children did not outweigh Ms. Kinzy’s privacy interest in freedom from police intrusion. Id. at 392. The court held that once a person is seized under the community care-taking function, “ [balancing the interests will not necessarily favor action by police.” Id. at 394. The court concluded, “[W]hen in doubt, the balance should be struck on the side of privacy because the policy of the Fourth Amendment is to minimize governmental intrusion into the lives of citizens. The community caretaking function exception should be cautiously applied because of its potential for abuse.” Id. at 394-95.
¶21 Cases from other jurisdictions discuss search standards in the context of civil protective detentions. In R.A.S. v. Florida,
[W]hen taking a truant into custody, the only concern is for officer safety — no crime has been committed and, accordingly, there is no need to preserve evidence of a crime. The deputy here knew that the “squishy object” in R.A.S.’s pocket was not a weapon. Therefore, he had no legal basis for questioning R.A.S. further about the contents of the pocket.
Id. at 690.
¶23 The Supreme Court of Colorado discussed search standards in the context of detention under its Alcoholism and Intoxication Treatment Act, a civil statute that allows law enforcement to take a person incapacitated by alcohol into protective custody if that person is “ ‘clearly dangerous to the health and safety of himself or others.’ ” People v. Dandrea,
¶24 The Colorado Supreme Court rejected the State’s argument, finding the intent of the act was to prevent harm to the detainee resulting from the detainee’s intoxication and, therefore, the act could not be used to justify an arrest comparable to a criminal arrest. Id. at 1215. The court analyzed the search under constitutional principles, stating, “The constitutional test of a warrantless search ... is reduced to the question of whether the search was reasonable under all the relevant attendant circumstances.” Id. at 1216. The court then noted that the primary justification for warrantless searches incident to custodial arrests is the preservation of evidence and the protection of arresting officers. Noting that only the latter is at issue in civil protective custody cases, the court stated, “While the goal of assuring officer safety is admittedly important, the legislative emphasis on the noncriminal nature of the contact between government officials and private citizens in civil protective custody settings requires that in such settings the individual’s privacy interest must be accorded maximum weight in determining the reasonableness of police conduct.” Id. at 1217. The court suggested a “case-by-case” evaluation, rather than a rigid formula due to the different degrees of potential danger in any given civil protective custody detention. Id. The court ultimately held:
It would appear, therefore, that in most cases involving detention of a private citizen for the sole purpose of placing that person in civil protective custody, a pat-down search for weapons at the scene would fully satisfy the need to assure officer safety and the safety of the individual while simultaneously according sufficient weight to the detainee’s status as a noncriminal and attendant interest in personal privacy. Thus the discovery of an itembelieved to be or to contain a weapon would in most circumstances require nothing more than the isolation of that item at the scene of the detention. Once the detainee’s access to the item is denied, any further search of the item would have to be justified on some other basis.
Id. at 1218.
¶25 In view of the principles enunciated above, we believe that a case-by-case approach as set forth in Dandrea best balances the constitutional rights of the detainee with safety considerations of third persons. Generally, in cases involving civil detentions under the Act, only a protective pat-down search for weapons is appropriate. However, when police are faced with emergency situations in which the detainee poses a threat to himself or others, a more intrusive search is justified. Dempsey,
¶26 Under the Act, a law enforcement officer is unquestionably fulfilling his or her role as a community caretaker when he or she encounters a child runaway or a child beyond the control of his parents. Under the Act, the police have an obligation to transport the child to the appropriate secure facility. This implies authority to conduct an initial pat-down search for weapons before placing the child in the patrol car. However, we must be cautious in applying the community caretaking function exception and satisfy ourselves that the claimed function was not a pretext for an evidentiary search. Thus, in the context of a warrantless search stemming from noncriminal conduct, the search must be limited in scope by the circumstances of the particular encounter and “strictly” relevant to the community caretaking function. Kinzy,
¶27 Here, the particular circumstances did not justify the search of A.A.’s pockets. Once the officer conducted the pat-down search and determined that A.A. did not have a weapon, the search should have stopped. A.A. had not committed a crime, and therefore, there was no need to preserve evidence of a crime. A.A. did not exhibit signs of dangerousness to himself or others. The only concern was for officer safety.
¶28 The State’s argument that the search was justified because the CRC requires a search of juveniles before admission is not persuasive, nor is it relevant. Notably, the officer did not perform this search at the CRC according to CRC policy. We express no view regarding potential search issues at the CRC facility performed according to CRC policy. Under our facts, this was a noncriminal protective custody situation, which requires us to accord maximum weight to A.A.’s privacy interest in evaluating the reasonableness of the search. Unless the State can establish that the search fell under an exception to the warrant requirement, we must reverse. The State has failed to establish an exception.
¶29 Reversed.
Notes
A sign posted at the CRC provides, “All youth entering the [CRC] must be thoroughly searched and patted down in front of the [CRC] staff by Law Enforcement.” Clerk’s Papers at 35. The officer did not follow this policy because the search occurred before reaching the CRC and was not performed in front of CRC staff.
Terry v. Ohio,