State v. Kirwin

• Decision Date: 26 March 2009
• Docket Number: No. 80113-4.,80113-4.
• Citation: 203 P.3d 1044,165 Wn.2d 818
• Parties: STATE of Washington, Respondent, v. Dennis Ray KIRWIN, Petitioner.
• Court: Washington Supreme Court

203 P.3d 1044

165 Wn.2d 818

STATE of Washington, Respondent, v. Dennis Ray KIRWIN, Petitioner.

No. 80113-4.

Supreme Court of Washington, En Banc.

Argued May 8, 2008.

Decided March 26, 2009.

Patricia Anne Pethick, Attorney at Law, Tacoma, WA, Thomas Edward Doyle, Attorney at Law, Hansville, WA, for Petitioner.

Thurston County Prosecutor's Office, James C. Powers, Olympia, WA, for Respondent.

FAIRHURST, J.

¶ 1 A jury convicted Dennis Ray Kirwin of unlawful possession of methamphetamine. The police found the methamphetamine in Kirwin's truck during a warrantless search conducted incident to the arrest of the passenger, Casey Irwin. Kirwin claims the State failed to justify the warrantless search of his truck under the search incident to arrest exception. He contends the city ordinance providing the basis for the arrest is invalid because it conflicts with state law and, therefore, rendered the arrest unlawful. We hold Kirwin has not demonstrated the city ordinance conflicts with state law and affirm the Court of Appeals.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 2 Around 2:00 a.m. in downtown Olympia, Kirwin was driving a truck with Irwin riding in the passenger seat. From his patrol vehicle, Officer Kory Pearce observed the passenger, Irwin, discard a beer can out of the passenger side window and saw its liquid contents spill onto the sidewalk. Officer Pearce activated his emergency lights and saw the passenger lean down as if to conceal something.

¶ 3 Once stopped, Irwin told Officer Pearce he threw the can out of the vehicle to avoid being caught with an open container inside of the truck. Officer Pearce arrested Irwin for littering, which is a misdemeanor under the Olympia Municipal Code (OMC) 9.40.110. After Officer Pearce secured Irwin in the patrol vehicle, he returned to the passenger side of the truck to search the area that was within Irwin's immediate control prior to his arrest. With Kirwin's consent, Officer Pearce searched the locked center console of the truck where he discovered cash and a bag of a crystalline substance he suspected to contain methamphetamine. Officer Pearce placed the driver, Kirwin, under arrest for unlawful possession of a controlled substance. Officer Pearce apprised Kirwin of his Miranda¹ rights, which Kirwin waived; he admitted the methamphetamine belonged to him.

¶ 4 Kirwin was charged with one count of unlawful possession of methamphetamine. At trial, the court admitted as evidence the crystalline substance found in the truck, which was confirmed to contain methamphetamine. Kirwin's attorney did not object to or move to suppress the evidence. A jury convicted Kirwin as charged, and he was sentenced to one year and one day. The Court of Appeals upheld the admission of the evidence based on the search incident to arrest exception to the warrant requirement. State v. Kirwin, 137 Wash.App. 387, 393, 153 P.3d 883 (2007). We granted review. State v. Kirwin, 162 Wash.2d 1013, 178 P.3d 1032 (2008).

II. ISSUE

¶ 5 Whether Officer Pearce conducted a proper search incident to arrest where the ordinance providing the authority for the arrest imposes a criminal sanction for littering when a nearly identical state law imposes only a civil sanction.

III. ANALYSIS

¶ 6 Kirwin alleges the search incident to the arrest of Irwin was unconstitutional under both the Fourth Amendment² and article I, section 7.³ Although not raised at trial, Kirwin may submit for review a "`manifest error affecting a constitutional right'."⁴ State v. McFarland, 127 Wash.2d 322, 333, 899 P.2d 1251 (1995) (quoting RAP 2.5(a)(3)). Kirwin must "identify a constitutional error and show how, in the context of the trial, the alleged error actually affected [his] rights." Id. (citing State v. Scott, 110 Wash.2d 682, 688, 757 P.2d 492 (1988)). It is proper to "preview" the merits of the constitutional argument to determine whether it is likely to succeed. State v. Walsh, 143 Wash.2d 1, 8, 17 P.3d 591 (2001) (citing State v. WWJ Corp., 138 Wash.2d 595, 603, 980 P.2d 1257 (1999)). As a threshold matter, we address whether Kirwin has met his burden to prove a constitutional error occurred.

¶ 7 We presume a warrantless search violates both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution. State v. Day, 161 Wash.2d 889, 893-94, 168 P.3d 1265 (2007). The State bears the burden to prove that one of the narrowly drawn exceptions to the warrant requirement validates the warrantless search. Id.; State v. Vrieling, 144 Wash.2d 489, 492, 28 P.3d 762 (2001). One such exception is a search conducted incident to arrest. Vrieling, 144 Wash.2d at 492, 28 P.3d 762. The arrest must be a lawful custodial arrest to justify a warrantless search. State v. Moore, 161 Wash.2d 880, 885, 169 P.3d 469 (2007); State v. O'Neill, 148 Wash.2d 564, 585, 62 P.3d 489 (2003). An arrest provides the legal authority required by article I, section 7 of the Washington State Constitution. O'Neill, 148 Wash.2d at 585, 62 P.3d 489. If the State obtains the evidence without the authority of law, then the evidence is not admissible in court. Day, 161 Wash.2d at 894, 168 P.3d 1265. Kirwin's sole challenge to the search is that Officer Pearce lacked authority of law because the ordinance under which he arrested Irwin conflicts with the state statute.⁵ Therefore, the sole issue before this court is whether the littering ordinance unconstitutionally conflicts with the littering statute.⁶

¶ 8 The city ordinance and state statute prohibiting littering contain virtually identical language.⁷ The city ordinance, however, imposes a harsher penalty for littering than does the state statute. Under OMC 9.64.010, littering is a criminal misdemeanor subjecting the violator to the possibility of time in jail and a fine. Under the state statute, littering in an amount equal to or less than one cubic foot is a class three civil infraction. RCW 70.93.060(2)(a). The maximum and default penalty for littering under state law is $50. RCW 7.80.120(1)(c).

¶ 9 We presume an ordinance is valid unless the challenger can prove the ordinance is unconstitutional. City of Pasco v. Shaw, 161 Wash.2d 450, 462, 166 P.3d 1157 (2007); HJS Dev., Inc. v. Pierce County, 148 Wash.2d 451, 477, 61 P.3d 1141 (2003); Heinsma v. City of Vancouver, 144 Wash.2d 556, 561, 29 P.3d 709 (2001). An ordinance may be deemed invalid in two ways: (1) the ordinance directly conflicts with a state statute or (2) the legislature has manifested its intent to preempt the field. Heinsma, 144 Wash.2d at 561, 29 P.3d 709; see also Chaney v. Fetterly, 100 Wash.App. 140, 149, 995 P.2d 1284 (2000). Article XI, section 11 of our state constitution allows local governments to create "such local police, sanitary and other regulations as are not in conflict with general law." A local regulation conflicts with state law where it permits what state law forbids or forbids what state law permits. Parkland Light & Water Co. v. Tacoma-Pierce County Bd. of Health, 151 Wash.2d 428, 433, 90 P.3d 37 (2004); see also City of Seattle v. Eze, 111 Wash.2d 22, 33, 759 P.2d 366 (1988) (holding that no conflict existed between a city ordinance and state statute where "`the ordinance goes farther in its prohibition—but not counter to the prohibition under the statute. The city does not attempt to authorize by this ordinance what the Legislature has forbidden; nor does it forbid what the Legislature has expressly licensed, authorized, or required'" (internal quotation marks omitted) (quoting City of Bellingham v. Schampera, 57 Wash.2d 106, 111, 356 P.2d 292 (1960))). The focus of this inquiry, therefore, is on the substantive conduct proscribed by the two laws. A conflict arises when the two provisions are contradictory and cannot coexist. Parkland Light, 151 Wash.2d at 433, 90 P.3d 37. If an ordinance conflicts with a statute, the ordinance is invalid. Id. at 434, 90 P.3d 37.

¶ 10 An ordinance may also be invalid where the legislature has indicated its intent to preempt the field. HJS Dev., 148 Wash.2d at 477, 61 P.3d 1141. If the legislature is silent, the court considers both "`the purposes of the statute and . . . the facts and circumstances upon which the statute was intended to operate.'" Heinsma, 144 Wash.2d at 561, 29 P.3d 709 (alteration in original) (quoting Brown v. City of Yakima, 116 Wash.2d 556, 560, 807 P.2d 353 (1991)). However, we "`will not interpret a statute to deprive a municipality of the power to legislate on a particular subject unless that clearly is the legislative intent.'" HJS Dev., 148 Wash.2d at 480, 61 P.3d 1141 (quoting Trimen Dev. Co. v. King County, 124 Wash.2d 261, 270, 877 P.2d 187 (1994)); see, e.g., Schampera, 57 Wash.2d at 118, 356 P.2d 292 (holding an ordinance may not impose a penalty in excess of the penalties a first class city is allowed to assess under former RCW 35.22.470 (1923), repealed by LAWS OF 1965, Ex.Sess., ch. 116, § 9).

¶ 11 The ordinance and the statute at issue here prohibit the same behavior— littering. Kirwin correctly observes the ordinance designates littering as an offense subject to arrest while the state statute does not. This difference, however, does not create an impermissible direct conflict; the focus of the article XI, section 11 inquiry is on the conduct proscribed by the two laws (a question of substance), not their attendant punishments (a question of magnitude).⁸ The two laws coexist because, although the degree of punishment differs, their substance is nearly identical and therefore an irreconcilable conflict does not arise. Because there is no direct conflict, unless the state littering statute expresses intent to preempt local entities from either proscribing littering or setting their own degrees of punishment for littering, then the ordinance will survive scrutiny under article XI, section 11.

¶ 12 Preemption occurs "where there is express legislative intent to preempt the field or such intent...