State v. O'Day

• Decision Date: 28 May 1998
• Docket Number: No. 16078-5-III,16078-5-III
• Citation: 955 P.2d 860,91 Wn.App. 244
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Traci Lynn O'DAY, Appellant.

Page 244

91 Wn.App. 244

955 P.2d 860

STATE of Washington, Respondent, v. Traci Lynn O'DAY, Appellant.

No. 16078-5-III.

Court of Appeals of Washington,

Division 3,

Panel Nine.

May 28, 1998.

Irene K. Asai, David M. Sandhaus, Adams County Prosecutor, Ritzville, for Appellant.

Dennis W. Morgan, Ritzville, for Respondent.

Terry Sublette, Spokane, pro se.

KATO, Judge.

The State of Washington appeals an order suppressing evidence seized during a search of Traci Lynn O'Day's ¹ purse. The State contends the search was properly incidental to the arrest of the driver of a car in which Ms. O'Day was a passenger. Alternatively, the State contends Ms. O'Day validly consented to the search. We affirm the suppression order.

On August 30, 1995, State Patrol Trooper Dan Dale stopped a car driven by James Henry. Trooper Dale had heard a radio report of a "gas drive-off" in Ritzville and recognized the identified vehicle as one he had seen earlier on Interstate 90. The officer arrested Mr. Henry and placed him in the patrol car. When Trooper Dale said he was going to search the car, Mr. Henry admitted there was a black gym bag containing marijuana under the driver's seat.

Trooper Dale told Ms. O'Day, the passenger, to step out of the car so he could conduct the search. The officer could not remember whether Ms. O'Day took her purse with her when she got out of the car, or whether he removed the purse himself. At any rate, the purse was placed on the hood of the car while Trooper Dale searched the interior. Inside the car, the officer found the gym bag containing marijuana and drug paraphernalia.

Trooper Dale asked Ms. O'Day if she had a valid driver's license to determine whether the car would have to be impounded. Ms. O'Day told the officer she did not have a license, but she showed him an identification card.

Trooper Dale did not suspect Ms. O'Day of any criminal activity, nor did he have a concern that she was armed or dangerous. But the officer testified he would not have allowed Ms. O'Day to leave the remote area because of his concern for her safety. If she had insisted on leaving, he would not have let her go and would have arrested her if necessary.

Trooper Dale asked Ms. O'Day if she had any drugs or weapons in her purse, and she responded that she did not. The officer then asked for Ms. O'Day's consent to search the purse. She agreed and signed a card indicating her consent. Trooper Dale searched the purse and found methamphetamine and drug paraphernalia.

Ms. O'Day was charged with possession of a controlled substance, RCW 69.50.401(d), and moved to suppress the evidence seized in the search of her purse. After hearing Trooper Dale's testimony, the superior court concluded the search was not justified by the earlier arrest of Mr. Henry. The court also concluded that Ms. O'Day's consent was invalid because there were insufficient intervening circumstances to attenuate her detention beyond the purpose of the original stop. The court suppressed the evidence and dismissed the charge. The State appeals the suppression order.

On appeal of a superior court's suppression order, we review only those factual findings to which the appellant has assigned error. State v. Hill, 123 Wash.2d 641, 647, 870 P.2d 313 (1994); see State v. Broadaway, 133 Wash.2d 118, 129-31, 942 P.2d 363 (1997). Because the State has not assigned error to the superior court's findings, we accept as verities the court's determinations as to the "factual events and happenings," Broadaway, 133 Wash.2d at 130, 942 P.2d 363, but independently examine the legal issues raised by those findings.

We first consider the State's contention that Trooper Dale's search of Ms. O'Day's purse was justified by the arrest of Mr. Henry, the car's driver. Except in a few circumstances, warrantless searches are per se unreasonable. State v. Johnson, 128 Wash.2d 431, 446-47, 909 P.2d 293 (1996). Among the recognized exceptions are searches incident to lawful arrests. Id. at 443-56, 909 P.2d 293. "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." State v. Stroud, 106 Wash.2d 144, 152, 720 P.2d 436 (1986). Under this reasoning, the Supreme Court has permitted searches of various personal items. See, e.g., State v. Smith, 119 Wash.2d 675, 835 P.2d 1025 (1992) (fanny pack); State v. Fladebo, 113 Wash.2d 388, 779 P.2d 707 (1989) (purse).

Several recent Court of Appeals decisions have addressed when a passenger's personal items are subject to search incidental to the arrest of a vehicle's driver. In State v. Seitz, 86 Wash.App. 865, 941 P.2d 5 (1997), a passenger left the vehicle with her purse in her possession before an officer conducted a search of the vehicle incident to the driver's arrest. Division Two held the officer did not have authority to search the purse "where the purse is not in the car at the time of the search, but rather is on the passenger's person and the passenger is outside the car." Id. at 869, 941 P.2d 5.

In State v. Parker, 88 Wash.App. 273, 944 P.2d 1081 (1997), the passenger left her purse inside the car while the officer conducted a search of the vehicle incident to the arrest of the driver. We held the search of the purse was proper, distinguishing Seitz and cases from other jurisdictions on the ground that in those cases the passengers had left the vehicles with their purses in their possession. Parker, 88 Wash.App. at 280-81, 944 P.2d 1081.

In State v. Nelson, 89 Wash.App. 179, 948 P.2d 1314 (1997), a passenger was arrested on an outstanding warrant, and the officer ordered the driver to get out of the vehicle, leaving her purse inside. We held the search of the purse was not justified by the arrest of the passenger and the subsequent incidental search, distinguishing Parker on the degree of "control" exercised: "When the person maintains control over the personal property and there are no furtive movements indicating he or she is trying to hide something, the police are not allowed to search the property." Nelson, 89 Wash.App. at 183, 948 P.2d 1314. Division Two, on almost identical facts has rejected this reasoning, holding that "control" is irrelevant to the question of whether a container is subject to a search incident to arrest. State v. Hunnel, 89 Wash.App. 638, 949 P.2d 847 (1998).

The facts of this case do not implicate the core of the disagreement. Read together, Seitz, Parker, Nelson, and Hunnel all suggest that when a purse is no longer inside a vehicle to be searched, it is not subject to a search incidental to the arrest of the vehicle's driver. This conclusion also is consistent with two Pennsylvania cases distinguished by Parker, 88 Wash.App. at 280, 944 P.2d 1081, on the grounds that the passengers in each of those cases "exited the automobile with the purse in her possession." See Commonwealth v. Knoche, 451 Pa.Super. 54, 678 A.2d 395 (1996); Commonwealth v. Shiflet, 543 Pa. 164, 670 A.2d 128 (1995).

Here, it is undisputed that the purse was not in the vehicle at the time Trooper Dale began his search incident to Mr. Henry's arrest. ² The search therefore may not be justified as incidental to the arrest.

We next consider the State's contention that Ms. O'Day validly consented to the search of her purse. Voluntary consent is another exception to the warrant requirement. State v. Cantrell, 124 Wash.2d 183, 187, 875 P.2d 1208 (1994). Even a voluntary consent, however, may be vitiated by an unlawful detention. State v. Armenta, 134 Wash.2d 1, 17-18, 948 P.2d 1280 (1997); State v. Soto-Garcia, 68 Wash.App. 20, 26-27, 841 P.2d 1271 (1992) (consent "obtained through exploitation of a prior illegality may be invalid even if voluntarily given"), disapproved on other grounds inState v. Thorn, 129 Wash.2d 347, 350-51, 917 P.2d 108 (1996). Whether a person has been unlawfully detained is a mixed question of law and fact; a court's factual findings are entitled to great deference, but the ultimate question of whether those facts constitute a seizure is an issue of law to be reviewed de novo. Armenta, 134 Wash.2d at 9, 948 P.2d 1280 (citingThorn, 129 Wash.2d at 351, 917 P.2d 108).

The initial issue here, then, is whether Trooper Dale unlawfully detained Ms. O'Day.

"Not every encounter between an officer and an individual amounts to a seizure." State v. Aranguren, 42 Wash.App. 452, 455, 711 P.2d 1096 (1985). A person is "seized" under the Fourth Amendment only if, "in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870 [1877], 64 L.Ed.2d 497 (1980), quoted in Aranguren, 42 Wash.App. at 455, 711 P.2d 1096; accord Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382 [2388], 115 L.Ed.2d 389 (1991) (question is "whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter"). "Whether a reasonable person would believe he was detained depends on the particular, objective facts surrounding the encounter." State v. Ellwood, 52 Wash.App. 70, 73, 757 P.2d 547 (1988) (citing Mendenhall, 446 U.S. at 554 ).

Armenta, 134 Wash.2d at 10-11, 948 P.2d 1280.

The superior court found Trooper Dale detained Ms. O'Day and would have prevented her from leaving for her own safety. However, the court did not find that the officer communicated his intention to Ms. O'Day. In fact, the officer testified he did not tell her she was not free to leave. Trooper Dale's subjective intent should play no part in determining whether the objective facts establish a constitutional seizure. The issue rather is whether a reasonable person in these circumstances would believe she was free to leave.

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