State v. Loewen

• Decision Date: 01 July 1982
• Docket Number: No. 48121-1,48121-1
• Parties: STATE of Washington, Respondent, v. Karen Louise LOEWEN, Petitioner.
• Court: Washington Supreme Court

Page 562

97 Wn.2d 562

647 P.2d 489

STATE of Washington, Respondent, v. Karen Louise LOEWEN, Petitioner.

No. 48121-1.

Supreme Court of Washington, En Banc.

July 1, 1982.

Karen Louise Loewen, pro se, Kenneth L. Jorgensen, Moses Lake, for petitioner.

Paul A. Klasen, Jr., Pros. Atty., Guy Nelson, Deputy Pros. Atty., Ephrata, for respondent.

STAFFORD, Justice.

The sole issue is whether appellant's constitutional right to be free of unlawful searches and seizures was violated.

Appellant, Karen Loewen, and her 9-year-old son, Lincoln, were the occupants of a wrecked automobile found in the overrun area of the Grant County Airport. The car was lodged against a dirt bank approximately 200-300 yards from the main road. Cleo Brandt, an airport security officer, discovered the car at approximately 11:30 p. m. July 30, 1979. According to Brandt, appellant's lip was cut and bleeding and she was disoriented, as if in shock. She was unable to identify either herself or her child. Brandt looked through a wallet found on the floor of the front seat of the automobile in an effort to determine appellant's identity. He found a concealed weapons permit issued to a Karen Loewen at a specified address, but found no driver's license or photograph.

Officer Brandt radioed the sheriff's office for assistance and deputy sheriff Gordon Harris arrived at the scene of the accident within a few minutes. Brandt informed him that the weapon permit was the only identification found. Upon checking the vehicle registration, Harris discovered the vehicle was registered to a person other than the one to whom the weapons permit had been issued. Appellant remained disoriented and apparently unable to disclose her name. Her son, also in somewhat a state of shock, was unable to give the officers his mother's name.

Testimony taken at the suppression hearing reveals that the officers decided to take appellant to the hospital. While assisting her into the patrol car Harris decided a pat-down search for weapons was advisable because of the concealed weapons permit. Since she was barely able to stand, Harris held her up while Brandt performed the pat-down search. Brandt felt a small (2 X 1/2 ) tubular shaped object in appellant's front jean pocket. As a result he reached in and pulled out what was recognized as a cocaine sniffer. Thereafter, officer Brandt placed appellant's wallet in her tote bag "right on top" and officer Harris drove her to the hospital. Lincoln, the son, was left at the scene of the accident with officer Brandt. After questioning Lincoln for approximately 30 minutes, Brandt learned he had been staying with his grandmother and was directed to her home.

Upon arriving at the hospital, appellant was taken to the emergency room, and her tote bag, containing the wallet, was left at the nurses' station. After a few minutes deputy sheriff Harris, who still had been unable to ascertain appellant's name, decided to search the tote bag "to get a positive identification of her". The testimony of the nurse, who assisted Harris in the search of the tote bag, was equivocal as to the need for an immediate ascertainment of appellant's identity for effective medical treatment. It is clear, however, that officer Harris, and not the hospital personnel, caused the tote bag to be searched.

Harris testified at the suppression hearing that he "found a plastic baggie with some leafy material in it, right on top of the (tote bag)". As a result he "sort of got curious as to what else might be found in the (tote bag)" and searched it. The wallet was found next and, lastly, Harris unearthed a baggie of phencyclidine (commonly known as "PCP" or "angel dust") and two other baggies containing traces of marijuana. On the other hand, the nurse who assisted officer Harris with the search testified the wallet "was on the top of the tote bag", where officer Brandt said he had placed it and that Harris found the wallet first, i.e., before finding any baggies of marijuana.

After searching the tote bag Harris returned to the emergency room and again asked appellant her name. By that time appellant was better oriented and gave the officer her name. She also asked about her son and requested that her former husband be notified. Upon his arrival about 10 minutes later, Harris gave appellant her Miranda warning and placed her under arrest. After receiving 12 stitches in her mouth, appellant was transported to the Grant County jail. She returned to the hospital the next day to receive treatment for a concussion.

At the suppression hearing the trial court denied appellant's motion to suppress the cocaine sniffer, as well as the marijuana and phencyclidine discovered in her tote bag. At trial the cocaine sniffer and other material removed from the tote bag were admitted. As a result, appellant was convicted of possession of a controlled substance, in violation of RCW 69.50.401 of the Uniform Controlled Substances Act. A divided Court of Appeals affirmed the conviction. We reverse the trial court and the Court of Appeals and remand the cause for a new trial. The trial court erred by denying appellant's initial motion to suppress the evidence and by admitting the drugs in evidence at trial. The evidence was obtained as a result of two unlawful searches and seizures.

The Fourth Amendment provides insofar as pertinent:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ...

The Fourth Amendment was made applicable to the states through the due process clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Thus searches conducted outside the judicial process are, with but few well-delineated exceptions per se unreasonable. Arkansas v. Sanders, 442 U.S. 753, 759-60, 99 S.Ct. 2586, 2590-2591, 61 L.Ed.2d 235 (1979); Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); State v. Simpson, 95 Wash.2d 170, 188, 622 P.2d 1199 (1980). The question before us is whether the searches and seizures in question fall within one of the limited exceptions.

Both the trial court and the Court of Appeals held the pat-down search was justified. The United States Supreme Court has permitted limited intrusions such as a "stop and frisk" or a "pat-down" search in situations when an officer reasonably apprehends danger. Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968); see also State v. Hobart, 94 Wash.2d 437, 441, 617 P.2d 429 (1980). In determining whether such an intrusion is reasonable, we must determine "whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place." Terry 392 U.S. at 20, 88 S.Ct. at 1879.

The State contends the pat-down was performed because appellant possessed a concealed weapons permit and the officers believed appellant might have been armed. We agree that, under the circumstances, an officer might reasonably apprehend danger and that the pat-down was reasonably related to that concern. Nevertheless, even though the initial pat-down was justified it is clear the officers' ultimate intrusion exceeded the actual scope of the search.

The instant search, unlike a search without a warrant incident to a lawful arrest, was not justified by any need to prevent the disappearance or destruction of evidence of crime. Terry at 29, 88 S.Ct. at 1884. The sole justification of the pat-down in the instant case was protection of the police officers from a possible concealed weapon. The ultimate intrusion in such a case must be confined in scope to the exigencies which justify its initiation, however. In short, the ultimate search or intrusion must be one that is "reasonably designed to discover guns, knives, clubs or other hidden instruments for the assault of the police officer." Terry at 29, 88 S.Ct. at 1884; Warden v. Hayden, 387 U.S. 294, 310, 87 S.Ct. 1642, 1651-1652, 18 L.Ed.2d 782 (1967) (Fortas, J., concurring). According to deputy sheriff Harris, the initial pat-down was "to check for a concealed weapon, if she had a knife or gun or anything like that." Primarily, Harris felt she might have a firearm on her person.

The record from the suppression hearing indicates that when Brandt patted down appellant he felt a small tube of some kind in the front pocket of her jeans. Brandt reached in her pocket and removed a small plastic container which proved to be a cocaine sniffer. It measured approximately 2 X 1/2 , which is about 2/3 the size of an average lipstick container. At the suppression hearing, Brandt testified that in addition to weapons, he was searching for drug paraphernalia as well.

Since this was not a search incident to a lawful arrest the sole justification of the warrantless search was the protection of the officers. It was thus necessary that the ultimate search be confined in scope to an intrusion designed to discover weapons and not drug paraphernalia. The actual size of the tube coupled with Brandt's admitted search for drugs indicates the search was not limited in scope to the discovery of weapons. Thus, the removal of the cocaine sniffer from petitioner's pocket exceeded the reasonable scope of the permitted warrantless search. The cocaine sniffer should have been excluded as evidence. As we said in State v. Hobart, 94 Wash.2d 437, 447, 617 P.2d 429 (1980):

To approve the use of evidence of some offense unrelated to weapons would be to invite the use of weapons' searches as a pretext for unwarranted searches, and thus to severely erode the protection of the Fourth Amendment. Such a step this Court is not prepared to take.

Turning next to the marijuana and phencyclidine discovered in the tote bag at the hospital, we have a different exclusionary problem. Since the second search was undertaken without a warrant, we must initially...