State v. Barron

• Decision Date: 18 September 2012
• Docket Number: No. 29787–0–III.,29787–0–III.
• Citation: 285 P.3d 231
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Gabriela Yaserth BARRON, Appellant.

285 P.3d 231

STATE of Washington, Respondent,

v.Gabriela Yaserth BARRON, Appellant.

No. 29787–0–III.

Court of Appeals of Washington,

Division 3.

Sept. 18, 2012.

James Patrick Hagarty, Yakima County Prosecuting Attorney, Yakima, WA, David Brian Trefry, Attorney at Law, Spokane, WA, for Respondent.

David L. Donnan, Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Appellant.

SWEENEY, J.

¶ 1 A strip search requires probable cause to believe that evidence of a crime will be discovered and it requires approval of a police supervisor. Here, the search was supported only by the defendant's apparent nervousness. That is not enough. We reverse the conviction for possession of a controlled substance with intent to deliver.

FACTS

¶ 2 Officer Thomas Orth of the Sunnyside Police Department responded to a report of an assault with a knife on September 6, 2010. He arrived at the scene and found Gabriela Barron and three others standing in the front yard of a house. Ms. Barron was crying hysterically and her knee was bleeding. She told Officer Orth that Melinda Garcia had chased her out of Ms. Garcia's nearby house at knife point following a dispute over the supposed theft of $100 and that she injured her knee in the process.

¶ 3 Officer Orth asked Ms. Barron if she would sit in the back seat of his patrol car while he and another officer investigated. He explained that she was not under arrest at that time. Ms. Barron got in the back of the patrol car. Officer Orth took her purse and placed it in the secured front seat area of the car. Ms. Barron remained locked in the back of the patrol car for about 20 minutes.

¶ 4 Officer Orth spoke with Ms. Garcia and her roommate, Katie Everham. The two women confirmed that there had been a physical altercation inside Ms. Garcia's house over the missing money and that Ms. Barron was eventually chased out of the house. Ms. Garcia and Ms. Everham both denied the use of a knife. The investigating officers did not locate a knife or the money alleged to be stolen.

¶ 5 Officer Orth returned to his patrol car and arrested Ms. Barron for disorderly conduct. He then searched Ms. Barron's purse, the purse he had placed in the front seat, and found two glass pipes with apparent drug residue and some unused baggies. Officer Orth took Ms. Barron to the Sunnyside Police Station to be booked.

¶ 6 Once at the station, Officer Orth instructed Dispatch Officer Mary Evialon to conduct a strip search of Ms. Barron for concealed narcotics. He was concerned by the number of unused baggies found in Ms. Barron's purse and the fact that she was acting nervous and answering questions quickly. Officers Orth and Evialon did not seek a warrant or permission from a supervisor before they started to search Ms. Barron.

¶ 7 Officer Evialon took Ms. Barron to a changing room and explained the strip search procedure to her. She clarified that she would not “go hands on unless need be.” Report of Proceedings (Dec. 14, 2010) (RP) at 43. Ms. Barron began crying and stated that she wanted to come clean and had something concealed. Officer Evialon told Ms. Barron to start removing her clothes. Ms. Barron took off her pants and then repeatedly asked to use the restroom while grabbing her genitalia. Officer Evialon told her she could do so after she was changed but that the toilet would be inspected prior to flushing. Ms. Barron then pulled her underwear down and removed an envelope from her vagina. The envelope contained a $20 bill and pieces of aluminum foil containing six-tenths of a gram of methamphetamine.

¶ 8 Ms. Barron moved to suppress the various pieces of evidence on four separate grounds: (1) the initial detention in the back of the patrol car lacked any reasonable suspicion or lawful basis, (2) the arrest for disorderly conduct violated the officer presence rule which requires that a warrantless arrest occur in the presence of an officer, (3) the search of the purse fell outside of the search incident to arrest exception because it occurredafter Ms. Barron was secured and there were no exigent circumstances, and (4) the strip search violated Washington law because it was conducted without a warrant or authorization from a supervisor.

¶ 9 The court ruled that Ms. Barron voluntarily entered the patrol car and that exigent circumstances surrounding the knife incident supported the officer's request. The court also ruled that the arrest for disorderly conduct outside of the officer's presence fell within the physical threat of harm exception to the officer presence rule. The court then ruled that the officer unlawfully searched Ms. Barron's purse and suppressed that drug evidence. However, the trial court justified the strip search based on Officer Orth's concern that Ms. Barron acted nervous following her arrest for disorderly conduct and the court refused to suppress the evidence discovered in that search.

¶ 10 The court found Ms. Barron guilty of possession of a controlled substance with intent to deliver following a stipulated trial. She appeals. The State does not appeal the court's suppression of the drug evidence discovered in her purse.

DISCUSSION

Detention in the Patrol Car a Lawful Seizure

¶ 11 Ms. Barron contends the court erred by refusing to suppress all of the evidence obtained following her unlawful seizure in the patrol car. We review the denial of a suppression motion to determine whether substantial evidence supports the trial court's findings and whether those findings support the conclusions. State v. Hill, 123 Wash.2d 641, 644, 870 P.2d 313 (1994). We review a trial court's conclusions of law de novo. State v. Eisfeldt, 163 Wash.2d 628, 634, 185 P.3d 580 (2008). We also review de novo whether police conduct amounted to a seizure. State v. Armenta, 134 Wash.2d 1, 9, 948 P.2d 1280 (1997).

¶ 12 All police seizures of a person, including brief detentions, must be tested against the Fourth Amendment guarantee of freedom from unreasonable searches and seizures. U.S. CONST. amend. IV; Mapp v. Ohio, 367 U.S. 643, 648, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). A warrantless seizure is considered per se unreasonable unless it falls within one of the few exceptions to the warrant requirement. State v. Ladson, 138 Wash.2d 343, 349, 979 P.2d 833 (1999). We start by determining whether a seizure actually occurred and, if it did, then whether it falls within an exception. State v. O'Neill, 148 Wash.2d 564, 574, 62 P.3d 489 (2003).

¶ 13 A citizen is seized when her freedom of movement is restrained and she would not believe that she is free to leave or decline an officer's request to do something. O'Neill, 148 Wash.2d at 574, 62 P.3d 489. The test is objective. State v. Young, 135 Wash.2d 498, 501, 957 P.2d 681 (1998). Here, Officer Orth arrived at the scene of a reported assault with a knife. He spoke with Ms. Barron; she was crying hysterically and her knee was bleeding. Officer Orth then requested that Ms. Barron sit in the back of his patrol car while he investigated further. She complied and relinquished her purse. The officer put the purse in the front seat and locked Ms. Barron in the back seat of the patrol car. Objectively, these actions restrained Ms. Barron's freedom of movement; she was not free to leave. This is a warrantless seizure.

¶ 14 An investigative stop/detention is an exception to the warrant requirement and is based upon less evidence than is needed for probable cause to make an arrest. State v. Glover, 116 Wash.2d 509, 513, 806 P.2d 760 (1991) (citing Terry v. Ohio, 392 U.S. 1, 25–26, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). An investigative detention occurs when the police briefly seize a person for questioning based on specific and articulable, objective facts that give rise to a reasonable suspicion that the person has been or is about to be involved in a crime. State v. Dorey, 145 Wash.App. 423, 429, 186 P.3d 363 (2008) (quoting Terry, 392 U.S. at 21, 88 S.Ct. 1868).

¶ 15 Here, the trial court concluded that exigent circumstances supported the detention because Officer Orth did not know if Ms. Barron was a victim, witness, or perpetrator. Ms. Barron argues that Officer Orth had no information implicating her as the perpetrator following his initial investigation and, accordingly, had no authority to detain her. The State responds that Ms. Barron's claim that she was a victim to or witness of an assault involving a knife amounted to exigent circumstances.

¶ 16 Police may not stop potential witnesses to the same extent as suspects of a crime. See Dorey, 145 Wash.App. at 426, 186 P.3d 363. In Dorey, we considered whether police may stop and detain a potential witness when investigating a disturbance complaint where no exigent circumstances existed. Id. at 428, 186 P.3d 363. There, the responding officer asked a man at a nearby car wash for identification and information regarding the complaint. Id. at 426, 186 P.3d 363. After the man left, the officer checked for outstanding warrants and found some. Id. The officer went after the man and found him minutes later getting out of his car and tossing a fanny pack into the bushes. Id. at 426–27, 186 P.3d 363. The man was arrested on the warrants and charged with possession of the methamphetamine found in the fanny pack. Id. at 427, 186 P.3d 363. We concluded that the arrest was unlawful because the officer had no particular articulable suspicion of involvement in criminal activity. Id. at 435, 186 P.3d 363.

¶ 17 We quoted State v. Carney¹ for the proposition that “ ‘[t]here is no authority—either statutory or otherwise—permitting an officer to seize a witness without a warrant, absent exigent circumstances or officer safety.’ ” Dorey, 145 Wash.App. at 429, 186 P.3d 363 (quoting State v. Carney, 142 Wash.App. at 203, 174 P.3d 142). Exigent circumstances necessary for detaining a witness exist when: (1) a serious crime recently occurred, (2) the officer reasonably believes that the witness's information will materially...