State v. Jones

Decision Date09 May 2002
Docket NumberNo. 70869-0.,70869-0.
Citation146 Wash.2d 328,146 Wn.2d 328,45 P.3d 1062
PartiesSTATE of Washington, Respondent, v. Kurt L. JONES, Petitioner.
CourtWashington Supreme Court

Thomas Doyle, Hansville, Patricia Pethick, Tacoma, for Petitioner.

Gary P. Burleson, Mason County Prosecutor, Carol L. Case, Deputy, Shelton, for Respondent.

MADSEN, J.

Defendant Kurt Jones was stopped for a traffic violation and subsequently arrested on an outstanding warrant. After Jones was arrested, deputies searched his passenger's purse and seized a firearm found in the purse. Prior to trial, Jones moved to suppress the firearm. The trial court denied Jones's motion, and Jones was convicted of unlawful possession of a firearm. Jones appealed, arguing that the police unlawfully searched his passenger's purse. The Court of Appeals affirmed Jones's conviction. We hold that the search of a passenger's purse is not justified incident to a driver's arrest absent evidence that the passenger's purse was in the immediate control of the driver.

We reverse.

FACTS

On November 15, 1997, about midnight, Deputy Kenneth McGill stopped Jones for a traffic violation. Moments later Deputy Michael Hayes arrived at the scene. McGill learned from the dispatcher that Jones had an outstanding arrest warrant. McGill arrested Jones and placed him in his patrol car.

Jones's girl friend, Marie Gale, was a passenger in the vehicle. Deputy Hayes approached Ms. Gale on the passenger side of the vehicle and asked for her identification, which she produced from her purse. A computer check indicated she had no outstanding warrants.

After Deputy McGill removed Jones from the car, the officers directed Ms. Gale to exit the vehicle so it could be searched. After she exited, Deputy Hayes told Ms. Gale to return her purse to the car. She complied. Deputy Hayes placed her in his patrol car but advised that she was not under arrest.

The deputies then searched Jones's car, including Ms. Gale's purse. They found a firearm in her purse. Dispatch reported that the gun was stolen. Jones was advised of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He claimed ownership of the gun.

ANALYSIS

The first issue presented in this case is whether the defendant has standing to challenge the search of his passenger's purse incident to his own arrest. Although automatic standing has been the subject of some controversy,1 and has been abandoned by the U.S. Supreme Court, it "still maintains a presence in Washington." State v. Williams, 142 Wash.2d 17, 22,11 P.3d 714 (2000).

It is well settled that article I, section 7 of the Washington Constitution provides greater protection to individual privacy rights than the Fourth Amendment. E.g. State v. Hendrickson, 129 Wash.2d 61, 69 n. 1, 917 P.2d 563 (1996)

; State v. Stroud, 106 Wash.2d 144, 148, 720 P.2d 436 (1986); State v. Williams, 102 Wash.2d 733, 741-42, 689 P.2d 1065 (1984). Article I, section 7 provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." This provision is violated when the State unreasonably intrudes upon a person's private affairs. State v. Boland, 115 Wash.2d 571, 577, 800 P.2d 1112 (1990); State v. Myrick, 102 Wash.2d 506, 510, 688 P.2d 151 (1984).

In this case, the alleged intrusion of which Mr. Jones complains is the search of Ms. Gale's purse. Mr. Jones does not claim ownership of the purse and therefore he lacks standing to challenge the search unless he is entitled to assert automatic standing. A person may rely on the automatic standing doctrine only if the challenged police action produced the evidence sought to be used against him. Williams, 142 Wash.2d at 23, 11 P.3d 714. To assert automatic standing a defendant (1) must be charged with an offense that involves possession as an essential element; and (2) must be in possession of the subject matter at the time of the search or seizure. State v. Simpson, 95 Wash.2d 170, 181, 622 P.2d 1199 (1980). Since the charge is unlawful possession of a firearm, the first requirement of Simpson is satisfied in this case because possession is an essential element of the crime charged.

As to the second requirement, possession may be actual or constructive to support a criminal charge. State v. Callahan, 77 Wash.2d 27, 459 P.2d 400 (1969). A defendant has actual possession when he or she has physical custody of the item and constructive possession if he or she has dominion and control over the item. Id. at 29, 459 P.2d 400. Dominion and control means that the object may be reduced to actual possession immediately. See State v. Simonson, 91 Wash.App. 874, 960 P.2d 955 (1998)

(defendant was in possession because dominion and control of the weapons could be immediately exercised); State v. Murphy, 98 Wash.App. 42, 988 P.2d 1018 (1999) (ability to reduce object to actual possession is aspect of dominion and control establishing possession), review denied, 140 Wash.2d 1018, 5 P.3d 10 (2000). However, mere proximity is not enough to establish possession. State v. Potts, 93 Wash.App. 82, 88, 969 P.2d 494 (1998) (citing State v. Robinson, 79 Wash. App. 386, 391, 902 P.2d 652 (1995)). In this case, the Court of Appeals appropriately found that Jones had constructive possession of the purse because he exercised control over his car and the contents therein, he stored items in the purse, and he admitted that the gun in the purse belonged to him.

The Court of Appeals found that Jones had satisfied the requirements of automatic standing. Nevertheless, that court went on to suggest that the continued viability of automatic standing is in doubt after this court's decision in State v. Williams, 142 Wash.2d 17, 11 P.3d 714. This concern appears to arise from a misreading of our Williams decision.

In Williams the defendant challenged an officer's entry into a third party's residence. The contraband at issue was discovered during a search of the defendant pursuant to an arrest warrant. Williams argued that he was entitled to rely on automatic standing to challenge entry into the third party's residence. This court disagreed, finding an insufficient nexus between the contraband found during a search of the defendant's person incident to his arrest on a warrant, and the officer's entry into the third party's apartment.

Williams was denied automatic standing because the challenged police action in that case, an officer's entry into a third party's residence, was not the action that resulted in a search. Rather, the entry facilitated the defendant's arrest on a valid arrest warrant. The search which revealed contraband was conducted incident to that arrest. In other words, the arrest, not the entry, led to the discovery of evidence which supported the subsequent possession charge. Williams was not placed in the position of having to claim ownership of contraband or admit to any criminal conduct to challenge the search of his person. Indeed, his possession of contraband was wholly unrelated to whether police lawfully entered a third party's apartment. Williams merely reiterated the premise underlying automatic standing that the rule is limited to situations where a defendant faces the risk that statements made at a suppression hearing will be used against him later as impeachment evidence. Automatic standing is not a "vehicle to collaterally attack every police search that results in a seizure of contraband or evidence of a crime." Williams, 142 Wash.2d at 23, 11 P.3d 714.

Unlike Williams, there is a direct relationship in this case between the challenged police action and the evidence used against the defendant. Because Jones must choose to either admit he possessed the gun to assert a privacy interest, thereby admitting the essential element in the case against him, or claim he did not possess the weapon, thereby losing his ability to challenge the search, he is entitled to assert automatic standing to challenge the search. This case presents the "self-incrimination dilemma" we were concerned about in Simpson. There we said:

without automatic standing, a defendant will ordinarily be deterred from asserting a possessory interest in illegally seized evidence because of the risk that statements made at the suppression hearing will later be used to incriminate him albeit under the guise of impeachment. For a defendant, the only solution to this dilemma is to relinquish his constitutional right to testify in his own defense.

Simpson, 95 Wash.2d at 180, 622 P.2d 1199.

Accordingly, we hold that Mr. Jones was entitled to rely on automatic standing to challenge the search of Ms. Gale's purse.

The next issue is whether police conducted an impermissible search when they ordered Ms. Gale, a nonarrested passenger, to leave her purse in the vehicle to be searched incident to the driver Jones's arrest. A warrantless search is per se unreasonable under article I, section 7 of the Washington Constitution. State v. White, 135 Wash.2d 761, 769, 958 P.2d 982 (1998); Hendrickson, 129 Wash.2d at 70,917 P.2d 563. Exceptions to this requirement are narrowly drawn. White, 135 Wash.2d at 768-69,958 P.2d 982; Hendrickson, 129 Wash.2d at 71,917 P.2d 563. The State bears a heavy burden in showing that the search falls within one of the exceptions. See State v. Johnson, 128 Wash.2d 431, 447, 909 P.2d 293 (1996)

. Here, the State argues that the search of Gale's purse was justified incident to Jones's arrest.

As a threshold matter, a search incident to arrest is a well-recognized exception to the warrant requirement. State v. Vrieling, 144 Wash.2d 489, 492, 28 P.3d 762 (2001). However, this is not an exception without limitations. The exception has been narrowly drawn to address officer safety and prevent the destruction of evidence. Id. at 494, 28 P.3d 762. While recognizing these dual justifications, this court in Stroud also observed that "because of our heightened...

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