State v. Alexander

• Decision Date: 07 October 2019
• Docket Number: No. 77513-8-I,77513-8-I
• Citation: 449 P.3d 1070
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Heather Anne ALEXANDER, Appellant.

449 P.3d 1070

STATE of Washington, Respondent,

v.Heather Anne ALEXANDER, Appellant.

No. 77513-8-I

Court of Appeals of Washington, Division 1.

FILED: October 7, 2019

Gregory Charles Link, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, Jessica Constance Wolfe, Washington Appellate Project, 1511 3rd Ave., Ste. 701, Seattle, WA, 98101-3647, for Appellant/Cross-Respondent.

Seth Aaron Fine, Snohomish Co. Pros. Office, 3000 Rockefeller Ave., Everett, WA, 98201-4060, Prosecuting Attorney Snohomish, Snohomish County Prosecuting Attorney, 3000 Rockefeller Ave. M/s 504, Everett, WA, 98201, for Respondent/Cross-Appellant.

PUBLISHED OPINION

Smith, J.

¶ 1 Heather Anne Alexander appeals her conviction for possession of a controlled substance. She argues that the trial court erred by not suppressing evidence found during a warrantless search of a backpack that was sitting behind her at the time of her arrest. Because the State failed to establish that Alexander had actual and exclusive possession of the backpack at or immediately preceding her arrest, we agree and reverse.

FACTS

¶ 2 On July 15, 2017, Officer Troy Moss of the Everett Police Department responded to a trespass report at 901 West Casino Road in Everett. There, he observed a man and a woman, later identified as Delane Slater and Heather Alexander, sitting in an undeveloped field marked with "no trespass" signs. Officer Moss identified himself as law enforcement at some distance and observed Slater and Alexander manipulating some unknown items on the ground. Officer Moss approached Slater and Alexander, who remained seated by a log approximately three or four feet apart from each other.

¶ 3 Officer Moss informed Slater and Alexander that they were trespassing and obtained their identification. When Officer Moss conducted a records check on Alexander, he learned that she had an active Department of Corrections (DOC) warrant. A records check on Slater yielded no results.

¶ 4 While interacting with Alexander, Officer Moss observed a pink backpack sitting directly behind Alexander. The backpack was close enough to Alexander that it appeared to be touching her back. When Officer Moss asked Alexander whether the backpack belonged to her, she indicated that it did.

¶ 5 Officer Moss confirmed the DOC warrant and placed Alexander under arrest. At this point, Officer Moss did not believe that he had probable cause for any other offense. Because Alexander was being arrested, Slater offered to take Alexander’s backpack with him. Alexander indicated to Officer Moss that it was her desire for Slater to take the backpack. Officer Moss informed Slater that Alexander’s personal property would be searched incident to arrest and that it would remain with her at that time. He asked Slater to leave the scene and indicated that "Slater did not do anything to cause [Officer Moss] safety concern." Slater left without incident.

¶ 6 Officer Moss took Alexander into custody and walked Alexander and her backpack to his patrol vehicle. Alexander was cooperative throughout this course of action. Officer Moss seated Alexander in his patrol vehicle and placed her backpack on top of the trunk. He then searched the backpack and located items containing what he believed to be a controlled substance. Officer Moss informed Alexander that he was additionally arresting her for possession of a controlled substance and advised her of her Miranda ¹ rights.

¶ 7 The State charged Alexander with possession of a controlled substance, committed while on community custody. Prior to trial, Alexander moved to suppress the evidence found during Officer Moss’s warrantless search of her backpack, arguing that the search did not fall within any valid exception to the warrant requirement. The trial court denied Alexander’s motion and entered findings of fact and conclusions of law. A jury later found Alexander guilty as charged. Alexander appeals.

ANALYSIS

¶ 8 Alexander argues that the warrantless search of her backpack was not a valid search incident to arrest, and thus the trial court erred by not suppressing the fruits of that search. Because the search was not a valid search of Alexander’s person incident to arrest and the State does not argue that any other warrant exception applies, we agree.

Standard of Review

¶ 9 When reviewing the denial of a suppression motion, this court ordinarily "determines whether substantial evidence supports the challenged findings of fact and whether the findings support the conclusions of law." State v. Garvin, 166 Wash.2d 242, 249, 207 P.3d 1266 (2009). But here, Alexander does not challenge any of the trial court’s findings of fact. Accordingly, they are verities on appeal, and the sole issue before this court is whether the trial court’s findings support its conclusions of law. State v. Acrey, 148 Wash.2d 738, 745, 64 P.3d 594 (2003) ; State v. Carneh, 153 Wash.2d 274, 281, 103 P.3d 743 (2004). We review this issue de novo. Carneh, 153 Wash.2d at 281, 103 P.3d 743.

Discussion

¶ 10 The Fourth Amendment of the United States Constitution protects individuals from unreasonable searches and seizures. U.S. CONST. amend. IV. The Washington State Constitution, whose privacy protections are more extensive than those provided under the Fourth Amendment, further narrows the State’s authority to search. State v. VanNess, 186 Wash. App. 148, 155, 344 P.3d 713 (2015) ; State v. Valdez, 167 Wash.2d 761, 771-72, 224 P.3d 751 (2009). Accordingly, when presented with arguments under both the state and federal constitutions, we first examine the state argument. VanNess, 186 Wash. App. at 155, 344 P.3d 713. If a search is invalid under the Washington State Constitution, any inquiry into its validity ends there. State v. Parker, 139 Wash.2d 486, 492-93, 987 P.2d 73 (1999).

¶ 11 Under our state constitution, "a warrantless search is per se unreasonable unless the State proves that one of the few ‘carefully drawn and jealously guarded exceptions’ applies." State v. Byrd, 178 Wash.2d 611, 616, 310 P.3d 793 (2013) (quoting State v. Bravo Ortega, 177 Wash.2d 116, 122, 297 P.3d 57 (2013) ). The State’s burden of proof in this context is a "heavy burden." Parker, 139 Wash.2d at 496, 987 P.2d 73.

¶ 12 Here, the warrant exception at issue is the exception for searches incident to arrest. There are two types of searches incident to arrest: "(1) a search of the arrestee’s person (including those personal effects immediately associated with his or her person—such as purses, backpacks, or even luggage) and (2) a search of the area within the arrestee’s immediate control." State v. Brock, 184 Wash.2d 148, 154, 355 P.3d 1118 (2015). A search of the area within the arrestee’s immediate control, often referred to as a "grab area" search, "requires justification grounded in either officer safety or evidence preservation—there must be some articulable concern that the arrestee can access the item in order to draw a weapon or destroy evidence." Brock, 184 Wash.2d at 154, 355 P.3d 1118. By contrast, a search of the arrestee’s person requires no additional justification beyond the validity of the arrest. Byrd, 178 Wash.2d at 617-18, 310 P.3d 793. Here, Alexander does not dispute the validity of the arrest. Meanwhile, the State does not argue that the search of Alexander’s backpack was a valid grab area search. Accordingly, the only issue before us is whether the search of the backpack was a valid search of Alexander’s person incident to arrest. For the reasons discussed below, we conclude that it was not.

¶ 13 In Byrd, our Supreme Court explained that whether an item is part of the arrestee’s person is determined by applying the time-of-arrest rule, which turns on whether the arrestee had "actual and exclusive possession at or immediately preceding the time of arrest.’ " Byrd, 178 Wash.2d at 621-23, 310 P.3d 793. In Byrd, Lisa Byrd was sitting in the front passenger seat of a car that was stopped after an officer determined that the car bore stolen license plates. Byrd, 178 Wash.2d at 615, 310 P.3d 793. The officer arrested Byrd for possession of stolen property. Byrd, 178 Wash.2d at 615, 310 P.3d 793. At the time of Byrd’s arrest, she had a purse in her lap. Byrd, 178 Wash.2d at 615, 310 P.3d 793. Before removing Byrd from the car, the officer seized the purse and set it on the ground nearby. Byrd, 178 Wash.2d at 615, 310 P.3d 793. After securing Byrd in the patrol car, the officer searched Byrd’s purse, finding methamphetamine in a sunglasses case therein. Byrd, 178 Wash.2d at 615, 310 P.3d 793.

¶ 14 The trial court concluded at a later suppression hearing that the warrantless search of Byrd’s purse was unlawful because Byrd was secured and unable to access the purse when it was searched. Therefore, there was no exigency present to search the purse out of concern for officer safety or evidence preservation. Byrd, 178 Wash.2d at 615, 310 P.3d 793. Division Three of this court affirmed. Byrd, 178 Wash.2d at 616, 310 P.3d 793.

¶ 15 Our Supreme Court reversed, observing that the lower courts erred by evaluating the search as a grab area search rather than as a search of Byrd’s person. Byrd, 178 Wash.2d at 620, 310 P.3d 793. The court reasoned that "Byrd’s purse was unquestionably an article ‘immediately associated’ with her person" and observed that "[t]he purse left Byrd’s hands only after her arrest, when [the officer] momentarily set it aside." Byrd, 178 Wash.2d at 623-24, 310 P.3d 793. The court thus concluded under the time-of-arrest rule that the search of Byrd’s purse was valid under both the state and federal constitutions. Byrd, 178 Wash.2d at 625, 310 P.3d 793. But, the court cautioned, "the time of arrest rule is narrow, in keeping with this ‘jealously guarded’ exception to the warrant requirement. It does not extend to all articles in an arrestee’s constructive possession, but only those personal articles in the arrestee’s actual and exclusive possession at or immediately preceding the time of...