103 Wash. App. 749 | Wash. Ct. App. | 2000
Atlas Wheless appeals his conviction for delivery of cocaine within a school bus route stop zone in violation of RCW 69.50.401(a)(1)(i) and .435(a)(3), contending the trial court violated his constitutional rights by refusing to suppress a crack cocaine pipe found during a vehicle search. Because Wheless was arrested far away from the truck in which police found the pipe, it was not a lawful search incident to arrest, and the trial court should have suppressed the evidence. Accordingly, we reverse the conviction.
On February 5, 1999, several Seattle police officers were conducting a “buy-bust” operation near the Hook, Line and Sinker tavern on Rainier Avenue. Working undercover, Officer Joseph Pioli made contact with Wheless in the tavern’s parking lot and asked Wheless for “a forty,” a common street term for 40 dollars worth of crack cocaine. Wheless pulled a folded bottle cap out of his pocket, opened it and handed Pioli two rocks, of what appeared to be crack cocaine, a suspicion later confirmed by crime lab testing. In exchange, Pioli gave Wheless two premarked 20-dollar bills.
As Pioli walked away from Wheless, he signaled the successful buy to three other officers who were participating in the operation. After hearing a description of the suspect over the radio, Officer Daniel Bresnahan observed Wheless, who matched the description, walk to a yellow pickup truck parked in the lot about 50-75 feet from the tavern’s entrance.
Officers followed Wheless into the tavern and arrested him in the tavern’s bathroom. They searched him and found six dollars, but they did not find the buy money. A short time after Wheless’ arrest, Officer Raymond Volluz searched the pickup truck using a narcotics detection dog. The dog located a glass tube of the type customarily used to smoke crack cocaine under the floor mat on the driver’s side.
DISCUSSION
The Fourth Amendment to the U.S. Constitution guards against unreasonable searches and seizures.
In State v. Stroud,
During 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. However, if the officers encounter a locked container*755 or locked glove compartment, they may not unlock and search either container without obtaining a warrant.[12 ]
The Court reiterated Belton’s pronouncement that the exigencies of danger to the officers and the potential destruction of evidence provide the justification for searching a vehicle incident to a lawful custodial arrest.
This court refined the analysis further in State v. Fore,
Applied to the facts here, Stroud and Fore require that items in the truck were at least arguably within Wireless’ control at the time of the arrest. They were not. Even assuming temporal proximity,
Citing Fore, the State argues that because the officers believed that relevant items like the buy money might have been in the truck because Wheless had recently sat in it, the search was legal. In Fore, this court supported its decision that a car search was a lawful search incident to arrest by commenting that “both men had been occupants of the moving vehicle just a few minutes prior to the arrest [and] the vehicle itself was directly connected to the probable
The State also relies on the exigent circumstances exception to the warrant requirement, which applies “where it is impractical to obtain a warrant because the suspect is fleeing, the officer or the members of the public are in danger, or based on mobility of a vehicle, and mobility or threatened destruction of evidence.”
In sum, we reverse Wheless’ conviction based on the lack of physical proximity between his arrest and the search of the truck.
Finally, we turn to the arguments Wheless presents in his pro se supplemental brief. Wheless first claims the prosecutor erred in stating “that in order to find [him] innocent, the police of Seattle, WA., must be lying.” He fails to develop his argument any further and merely cites to an assortment of federal cases rather than the line of relevant Washington cases, and the State did not respond to Wheless’ pro se arguments. Our review of the record indicates that although the extent to which the State emphasized the theme of lying during closing arguments was likely improper,
Reversed.
Kennedy and Cox, JJ., concur.
Reconsideration granted and opinion amended February 5, 2001.
The record does not reveal who owned the truck.
The Fourth Amendment states that “[t]he 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, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
State v. Hendrickson, 129 Wn.2d 61, 70-71, 917 P.2d 563 (1996).
Id. at 72.
Id. at 71.
395 U.S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969).
453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981).
Id., at 460 (quoting Chimel, 395 U.S. at 763).
106 Wn.2d 144, 151, 720 P.2d 436 (1986).
That section states that “[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law.”
Stroud, 106 Wn.2d at 152.
Id. at 151.
56 Wn. App. 339, 347, 783 P.2d 626 (1989), review denied, 114 Wn.2d 1011, (1990).
The record does not clearly reveal how much time elapsed between the arrest and the vehicle search. The State explains merely that the officers conducted the search “[a] short time” after the arrest.
Accord, State v. Porter, 102 Wn. App. 327, 6 P.3d 1245 (2000) (holding that warrantless vehicle search was illegal where van searched was 300 feet from defendant when he was arrested). In Porter, Division Two reaffirmed that the immediate control principle is the essential measure for determining whether the Belton-Stroud bright-line rule applies and justifies the search: “[I]f the police initiate an arrest and the passenger compartment of a vehicle is not within an arrestee’s area of‘immediate control,’ Stroud does not apply.” Id. at 333.
An illegal search may be determined harmless on appeal if the court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of error. State v. Gonzales, 46 Wn. App. 388, 402, 731 P.2d 1101 (1986).
Fore, 56 Wn. App. at 348.
State v. Rulan C., 97 Wn. App. 884, 889, 970 P.2d 821, 990 P.2d 422 (1999).
Id.
112 Wn.2d 731, 774 P.2d 10 (1989).
Id. at 736.
Id. at 736-37.
See State v. Fleming, 83 Wn. App. 209, 213, 921 P.2d 1076 (1996) (“[I]t is misconduct for a prosecutor to argue that in order to acquit a defendant, the jury-must find that the State’s witnesses are either lying or mistaken.”), review denied, 131 Wn.2d 1018 (1997).
State v. Finch, 137 Wn.2d 792, 839, 975 P.2d 967 (quoting State v. Stenson, 132 Wn.2d 668, 719, 940 P.2d 1239 (1997)), cert. denied, 528 U.S. 922 (1999). This