State Of Wash. v. Wright

• Decision Date: 19 April 2010
• Docket Number: No. 62142-4-I.,62142-4-I.
• Citation: 155 Wash.App. 537,230 P.3d 1063
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent,v.Roger Sinclair WRIGHT, Appellant.

155 Wash.App. 537

230 P.3d 1063

STATE of Washington, Respondent,v.Roger Sinclair WRIGHT, Appellant.

No. 62142-4-I.

Court of Appeals of Washington Division 1.

April 19, 2010.

Richard Hansen, Ariella Wagonfeld, Allen Hansen & Maybrown PS, Seattle, WA, for Appellant.

Stephen Hobbs, Office of the Prosecuting Attorney, Seattle, WA, for Respondent.

SCHINDLER, J.

¶ 1 In an unpublished opinion, we rejected Roger Sinclair Wright's argument that the trial court erred in denying his motion to suppress because the officer lacked justification to stop him for a traffic infraction or that the traffic stop was a pretext, and affirmed his convictions for possession of marijuana with intent to distribute and possession of methylenedioxymethamphetamine (MDMA a/k/a “Ecstasy”).¹ Wright filed a motion to reconsider based on the recent United States Supreme Court decision in Arizona v. Gant, --- U.S. ----, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Wright contends that the decision in Gant and the Washington State Supreme Court's recent decision in State v. Patton, 167 Wash.2d 379, 219 P.3d 651 (2009) compel a different result. We disagree. Unlike Gant, because the police arrested Wright for possession of marijuana and had reason to believe evidence of the crime might be found in the car, there is no violation of the Fourth Amendment. And unlike in Patton, because the police had probable cause to arrest Wright for possession of marijuana, and a nexus between Wright, the crime of the arrest, and the search of the vehicle, there is no violation of article I, section 7 of the Washington State Constitution. We deny Wright's motion to reconsider, and affirm.

FACTS

¶ 2 Wright does not challenge the findings of fact as set forth in the trial court's order denying his motion to suppress.²

¶ 3 At approximately 4:45 p.m. on November 26, 2007, Officer Christopher Gregorio stopped Roger Sinclair Wright for driving without headlights after sunset. Before stopping the car, Officer Gregorio called for backup.

¶ 4 Officer Gregorio approached the car on the driver's side. Wright was the only occupant in the car. Officer Gregorio immediately smelled the “strong odor of marijuana” emanating from the car. Wright admitted that he did not “have on any lights and he was backing up around his dad's house illegally.” Wright asked Officer Gregorio to give him a citation and let him go. Officer Gregorio said Wright appeared nervous and was physically shaking.

¶ 5 Officer Gregorio asked Wright twice for the vehicle registration. But each time Wright started to open the glove compartment, he retracted his hand. When Wright finally opened the glove compartment, Officer Gregorio saw a large roll of money. Wright quickly closed the glove compartment without retrieving the registration, and appeared even more agitated and nervous. Officer Gregorio said Wright was “moving his hand uncontrollably, and his eyes started to well up with tears.”

¶ 6 Officer Gregorio arrested Wright for possession of marijuana. The police handcuffed Wright and placed him in the patrol car. Wright gave the officers permission to retrieve the registration from the glove compartment. As Officer Gregorio leaned into the car to get the registration, he noticed the odor of marijuana was much stronger. After reading Wright his Miranda ³ rights, Officer Gregorio asked why he smelled marijuana in the car. In response, Wright admitted smoking marijuana earlier but refused to answer any more questions.⁴

¶ 7 Officer Gregorio requested the assistance of a K-9 drug unit with a drug-sniffing dog. After the dog alerted to the presence of drugs in the car, the police searched the car. The police recovered two baggies of marijuana and a prescription bottle of oxycodone in the console of the passenger compartment, and two baggies of marijuana and a scale in the back seat. The police later obtained a warrant to search the trunk of the car and found a large bag of marijuana, a small bag of marijuana, and a ziplock bag containing 250 pills of MDMA, a/k/a “Ecstasy”.

¶ 8 The State charged Wright with possession of marijuana with intent to deliver and possession of MDMA with intent to deliver. Wright filed a CrR 3.6 motion to suppress his statements to the police and the drugs. Wright argued that Officer Gregorio was not justified in stopping him for driving without headlights. Alternatively, Wright argued that the stop was a pretext. Wright did not challenge the validity of the search incident to arrest.

¶ 9 Officer Gregorio was the only witness to testify at the CrR 3.6 hearing. The court denied Wright's motion to suppress. The court entered detailed findings of fact and conclusions of law. The court ruled that Officer Gregorio had reasonable suspicion to stop Wright for a traffic infraction and that based on the totality of the circumstances, the stop was not a pretext.

¶ 10 Wright waived his right to a jury trial. The court convicted Wright of possession of marijuana with intent to deliver and the lesser included offense of possession of MDMA.

¶ 11 On appeal, Wright argued that the trial court erred in denying his motion to suppress because the police officer lacked justification to stop the vehicle, and in the alternative, that the traffic stop was a pretext. In an unpublished opinion, we rejected Wright's arguments, and affirmed.

¶ 12 Three days after the opinion was filed, Wright filed a motion to reconsider. Wright claimed that based on the Supreme Court's recent decision in Gant, the search of his car violated the Fourth Amendment. We requested additional briefing and scheduled oral argument on the motion to reconsider. Wright argued for the first time in his reply brief that the search was also invalid under article I, section 7 of the Washington State Constitution. We asked the State to file a supplemental response to Wright's argument under article I, section 7. Before oral argument, the Washington State Supreme Court issued its decision in State v. Patton, 167 Wash.2d 379, 219 P.3d 651 (2009), holding that in the absence of a nexus between the arrestee, the crime of arrest, and the vehicle, an automobile search incident to arrest violates article I, section 7 of the Washington State Constitution.⁵

Automobile Search Incident to Arrest under the Fourth Amendment

¶ 13 Wright asserts that under the United States Supreme Court's recent decision in Gant, the warrantless search of his automobile was invalid under the Fourth Amendment because he was handcuffed and secured in the back of the patrol car.⁶ In Gant, the Supreme Court held that police can search a vehicle incident to arrest only if the arrestee is unsecured and within reaching distance of the passenger compartment or it is reasonable to believe evidence of the crime for which he was arrested is in the vehicle. Gant, 129 S.Ct. at 1719. The State contends the search was valid under Gant and the Fourth Amendment because the police had reason to believe evidence of the crime of the arrest might be found in the vehicle.

¶ 14 The Fourth Amendment guarantees “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures....” U.S. Const. amend. IV. A warrantless search of an area in which the defendant has a privacy interest is per se unreasonable under the Fourth Amendment subject to “a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

¶ 15 In Gant, the Supreme Court rejected a broad interpretation of New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), and clarified the search incident to arrest exception to the Fourth Amendment as defined in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and as applied to vehicle searches in Belton. The Court held “Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” Gant, 129 S.Ct. at 1723. Where these justifications are absent, “a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.” Gant, 129 S.Ct. at 1723-24.

¶ 16 In Chimel, the Court held that the police can conduct a warrantless search of a home incident to an arrest, so long as the search is limited to the area within the arrestee's “immediate control,” which is defined as “the area from within which he might gain possession of a weapon or destructible evidence.” Chimel, 395 U.S. at 763, 89 S.Ct. 2034. The basis for this well-established exception to the warrant requirement is the need “to remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect his escape” and the need to prevent the concealment or destruction of evidence. Chimel, 395 U.S. at 763, 89 S.Ct. 2034.

¶ 17 In Belton, a state trooper stopped a car for traveling at an excessive speed. While asking the driver for his license and automobile registration, the trooper smelled burnt marijuana and saw an envelope on the floor of the car marked “Supergold,” a name associated with marijuana. Belton, 453 U.S. at 455-56, 101 S.Ct. 2860. The trooper arrested all four occupants of the car for unlawful possession of marijuana. During the search of the car, the trooper found marijuana in the envelope marked “Supergold”, and cocaine in the pocket of Belton's jacket that was in the back seat of the car. The trial court denied Belton's motion to suppress the cocaine discovered in the search incident to arrest. Belton, 453 U.S. at 456, 101 S.Ct. 2860. The Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile” and any...