107 Wash. App. 280 | Wash. Ct. App. | 2001
Jason Derik Johnston appeals his conviction for unlawful possession of a controlled substance with intent to deliver. He argues that the trial court improperly admitted evidence obtained in a warrantless search of his vehicle. Agreeing, we reverse.
The parties stipulated to such facts as the record shows. On October 4, 1998, Johnston and William Welling approached Aaron Johnson and Robert Repp. Johnston said he would shoot Johnson unless Johnson turned over his skateboard. Johnson gave up the skateboard, and Johnston and Welling drove away in a silver Volkswagen (VW) Fox.
Two of Johnson’s friends began looking for, and soon spotted, the silver Fox. They followed it into the parking lot of a Target store and watched as its occupants entered the store. They approached the now-unoccupied car, opened an unlocked door, and removed Johnson’s skateboard.
After retrieving the skateboard, the two friends called the police. Officers Vandenburg and Thornton responded, parking their patrol cars near the silver Fox.
Officer Vandenburg spoke with the two friends, who had remained in the Target parking lot. She also spoke on the phone with Johnson. While she was still on the phone, the two friends saw Johnston and Welling come out of the store and directed Vandenburg’s attention to them. With Vandenburg now watching, Johnston and Welling “walk[ed]
At Vandenburg’s direction, Thornton arrested Johnston and Welling. The record does not show where Johnston and Welling were when arrested, or how much time had elapsed since either had been in the silver Fox; it shows only that each was arrested “in the immediate vicinity of the VW Fox.”
On October 8, 1998, the State charged Johnston by information. As later amended, the information alleged first degree robbery (Count I), unlawful possession of methamphetamine with intent to deliver (Count II), and unlawful possession of methamphetamine (Count III). Count II was based on the methamphetamine found in the car, and Count III was based on the methamphetamine found on Johnston’s person.
On March 1,1999, Johnston moved to suppress the drugs found in the search of the car. Citing State v. Stroud,
On March 15, 1999, trial began. The jury convicted on Counts II and III, but could not reach a verdict on Count I. In lieu of retrial on Count I, Johnston later pleaded guilty to an amended charge of first degree theft. On May 17, 1999, the trial court imposed concurrent sentences of 18 months
On appeal, Johnston does not contest Counts I and III. He contests only Count II, arguing that the search of the silver Fox was unlawful.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
I. SEARCH INCIDENT TO LAWFUL ARREST
Several questions arise when the search incident exception is asserted in a case such as this. One, not in issue here, is whether the police had probable cause to arrest. Another, also not in issue here, is whether the police could lawfully search the arrestee’s person. A third, which is in issue here, is whether the police were entitled to search the arrestee’s car.
In State v. Stroud,
During the arrest process . . . officers should be allowed to search the passenger compartment of a vehicle for weapons or destructible evidence. However, if the officers encounter a locked container or locked glove compartment, they may not unlock and search either container without obtaining a warrant. . . . [T]he danger that the individual either could destroy or hide evidence located within the container or grab a weapon is minimized. The individual would have to spend time unlocking the container, during which time the officers have an opportunity to prevent the individual’s access to the contents of the container.[15 ]
As this language clearly shows, the key question when applying Belton and Stroud is whether the arrestee had ready access to the passenger compartment at the time of arrest. If he could suddenly reach or lunge into the compartment for a weapon or evidence, the police may search the compartment incident to his arrest. If he could not do that, the police may not search the compartment incident to his arrest. Sometimes, this is referred to as
Three cases, including Belton and Stroud, exemplify when an arrestee has ready access to a passenger compartment.
Three other cases exemplify when an arrestee lacks ready access.
In State v. Porter,
In State v. Perea,
State v. Lopez
State v. Fore
In the present case, Johnston and Welling got out of their car, closed its doors, and went into the store. When they left the store after an unknown period of time, they walked past the car, apparently putting the two officers between them and it. They were arrested “in the immediate vicinity” of their car,
II. COMMUNITY CARETAKING
Although it did not raise or litigate the issue below, the State argues on appeal that the police were conducting a lawful inventory search when they found the methamphetamine in the car. “In order to justify a warrantless inventory search, the State must demonstrate a lawful impound and that the inventory was not a mere pretext for an investigatory search.”
The State does not rely on any other exception to the warrant requirement. Thus, we conclude that the officers needed a warrant to search the car,
Count II is reversed and dismissed. The convictions on Counts I and III remain in place. The reversal of Count II alters the standard ranges on Counts I and III, so we remand those counts for resentencing.
Seinfeld and Houghton, JJ., concur.
Review denied at 145 Wn.2d 1021 (2002).
Clerk’s Papers (CP) at 58.
Id.
Id. at 59.
Id.
State v. Stroud, 106 Wn.2d 144, 720 P.2d 436 (1986).
State v. Fore, 56 Wn. App. 339, 783 P.2d 626 (1989), review denied, 114 Wn.2d 1011 (1990).
U.S. Const. amend. IV.
State v. Johnson, 128 Wn.2d 431, 451, 909 P.2d 293 (1996); State v. Simpson, 95 Wn.2d 170, 188, 622 P.2d 1199 (1980); State v. Porter, 102 Wn. App. 327, 330, 6 P.3d 1245 (2000) (citing State v. Parker, 139 Wn.2d 486, 496, 987 P.2d 73 (1999); State v. Hendrickson, 129 Wn.2d 61, 70, 917 P.2d 563 (1996)); State v. McKenna, 91 Wn. App. 554, 558-59, 958 P.2d 1017 (1998).
United States v. Robinson, 414 U.S. 218, 224, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973); State v. Smith, 119 Wn.2d 675, 678, 835 P.2d 1025 (1992); McKenna, 91 Wn. App. at 559.
State v. Smith, 76 Wn. App. 9, 13, 882 P.2d 190 (1994), review denied, 126 Wn.2d 1003 (1995); State v. Wheless, 103 Wn. App. 749, 753, 14 P.3d 184 (2000); State v. Ladson, 138 Wn.2d 343, 349, 979 P.2d 833 (1999).
Parker, 139 Wn.2d at 496; Johnson, 128 Wn.2d at 451; State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980); Porter, 102 Wn. App. at 330; McKenna, 91 Wn. App. at 559; State v. Jackson, 82 Wn. App. 594, 601-03, 918 P.2d 945 (1996), review denied, 131 Wn.2d 1006 (1997).
Chimel v. California, 395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969).
New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981).
Stroud, 106 Wn.2d 144.
Stroud, 106 Wn.2d at 152.
See, e.g., Porter, 102 Wn. App. at 333; State v. Bradley, 105 Wn. App. 30, 38, 18 P.3d 602 (2001).
See also State v. Vrieling, 97 Wn. App. 152, 983 P.2d 1150 (1999) (defendant had ready access to the living quarters of a motor home from the passenger compartment), review granted, 140 Wn.2d 1005 (2000); Johnson, 128 Wn.2d 431 (defendant had ready access to “the sleeper in the cab of the tractor-trailer”); State v. Boursaw, 94 Wn. App. 629, 636, 976 P.2d 130 (1999) (“the area immediately behind the ashtray is within the reach of the occupants of the automobile”); State v. Chelly, 94 Wn. App. 254, 970 P.2d 376 (defendant had ready access to the passenger compartment where drugs and a firearm were found), review denied, 138 Wn.2d 1009 (1999); State v. Davis, 79 Wn. App. 355, 901 P.2d 1094 (1995) (defendant had ready access to an unlocked cooler behind the driver’s seat); State v. Johnson, 65 Wn. App. 716, 829 P.2d 796 (1992) (defendant had ready access to a jacket, containing cocaine, inside the passenger compartment of the vehicle).
Stroud, 106 Wn.2d at 145.
State v. Bradley, 105 Wn. App. 30, 18 P.3d 602 (2001).
Bradley, 105 Wn. App. at 33.
See also State v. Mitzlaff, 80 Wn. App. 184, 188, 907 P.2d 328 (1995) (search of the engine compartment of an automobile exceeds the scope of a search incident to arrest because the engine area “is not accessible without exiting the vehicle” and not “within the arrestee’s immediate control.”), review denied, 129 Wn.2d 1015 (1996); State v. Boyce, 52 Wn. App. 274, 279, 758 P.2d 1017 (1988) (“once [defendant] was removed from the scene, there simply were no special circumstances present that justified a warrantless vehicle search as there was no possibility that [defendant] could destroy evidence or grab a weapon.”).
State v. Wheless, 103 Wn. App. 749, 14 P.3d 184 (2000).
State v. Porter, 102 Wn. App. 327, 6 P.3d 1245 (2000).
State v. Perea, 85 Wn. App. 339, 932 P.2d 1258 (1997).
State v. Lopez, 70 Wn. App. 259, 856 P.2d 390 (1993), review denied, 123 Wn.2d 1002 (1994).
See Porter, 102 Wn. App. at 335.
Fore, 56 Wn. App. 339.
Fore, 56 Wn. App. at 348.
CP at 58.
State v. Stortroen, 53 Wn. App. 654, 658, 769 P.2d 321 (1989) (emphasis added) (citing Simpson, 95 Wn.2d at 189), overruled on other grounds by State v. Reding, 119 Wn.2d 685, 694, 835 P.2d 1019 (1992).
See Simpson, 95 Wn.2d at 189; State v. Barajas, 57 Wn. App. 556, 560, 789 P.2d 321, review denied, 115 Wn.2d 1006 (1990); State v. Williams, 102 Wn.2d 733, 742-43, 689 P.2d 1065 (1984).
Hendrickson, 129 Wn.2d at 76.