State v. McKenna

• Decision Date: 10 July 1998
• Docket Number: No. 20847-4-II,20847-4-II
• Parties: STATE of Washington, Respondent, v. Denise Louise McKENNA, Appellant.
• Court: Washington Court of Appeals

Page 554

91 Wn.App. 554

958 P.2d 1017

STATE of Washington, Respondent, v. Denise Louise McKENNA, Appellant.

No. 20847-4-II.

Court of Appeals of Washington,

Division 2.

July 10, 1998.

John A. Hays, (Court Appointed), Longview, for Appellant.

Christopher Thomas Mahre, Cowlitz Co. Deputy Pros. Atty., Hall of Justice, Kelso, for Respondent.

MORGAN, Judge.

Denise McKenna appeals her conviction for possession of methamphetamine. We reverse.

On April 26, 1996, the Cowlitz County Jail was overcrowded. As a result, it was refusing to book anyone arrested for only a nonviolent misdemeanor.

About 2:30 a.m., Officer Coulter, ¹ a Kelso police officer, saw a car drive away from what he believed to be a drug house. The car was occupied by a female driver and a male passenger.

Coulter ran a computer check on the car. The results indicated that the car's annual license tabs had expired. Coulter could see, however, that the car had a current tab on its rear plate.

Suspecting false tabs, Coulter pulled the car over. After ascertaining that McKenna was the driver, he asked her to produce a driver's license and insurance card. She could not, so he ran a computer check on her and her passenger. The results indicated (a) that McKenna's driver's license was expired; (b) that McKenna did not have insurance; (c) that McKenna was wanted on an arrest warrant issued by the Longview Municipal Court for driving without a valid operator's license; and (d) that the passenger was wanted on a similar warrant.

Because of the jail situation, Coulter did not arrest McKenna or the passenger. Instead, he cited McKenna for not possessing a valid operator's license or proof of insurance. He also told both her and the passenger to take care of their warrants by contacting the Longview Municipal Court.

Once Coulter completed the citations, McKenna and her passenger were "free to go." ² Their car, however, was not. Sergeant Nelson, Officer Stair and Officer Proco had arrived by this time, and when Sergeant Nelson learned that neither McKenna nor her passenger had a valid driver's license, he ordered that her car be impounded and inventoried. Eventually, the car was searched and towed away.

When McKenna learned that her car was being impounded, she asked if she could retrieve some of the personal items that were in it. The officers agreed, and she loaded a number of items into a duffle bag.

At this point, McKenna lacked transportation, and it was after 2:30 a.m. Officer Stair told her he would call her a cab or give her a ride home in his patrol car. Before she could ride in his patrol car, however, "she would have to submit to a check of her person and bag for weapons." ³ "At this point," according to the trial court's explicit finding, "[McKenna] and her companion were free to leave." ⁴

McKenna responded to Stair's statements by agreeing that he could search the duffle bag. As Stair did so, according to the trial court's finding, he was "look[ing] for weapons and ... illegal drugs." ⁵ He did not find either, but he did find drug paraphernalia in the nature of a pipe, cigarette wrapping papers, and a small set of scales.

Stair then told McKenna to empty her pockets. She complied by taking "a plastic film canister out of her pocket and plac[ing] it on the car." ⁶ Stair opened the canister, found methamphetamine, and placed McKenna under arrest for possession of a controlled substance and possession of drug paraphernalia.

On May 1, 1996, the State charged McKenna with illegal possession of a controlled substance, methamphetamine. She moved to suppress, and after a hearing the trial court made several findings and conclusions pertinent here.

First, the court ruled that the search of McKenna's pockets could not be justified by probable cause to arrest for possession of drug paraphernalia. The court's reason, appropriately enough, was that there is no such crime. ⁷

Second, the court ruled that the search of McKenna's pockets could not be justified by consent. When McKenna handed the duffle bag to Officer Stair, she was "knowingly and voluntarily consent[ing] to a search of her bag for weapons," ⁸ but she was not consenting to a search of her person for weapons or anything else. As a result, McKenna did not "take the plastic film canister out of her pocket as part of [a] consensual search of her person. Rather, she took it out of her pocket upon the order of Officer Stair." ⁹

Third, the court ruled that the search of McKenna's pockets could be justified on the ground that it was "a valid search incident to an arrest ... that Officer Stair could have made on the outstanding Longview Municipal Court warrant." ¹⁰ It was legally insignificant, the trial court thought, that no such arrest had actually been made. Based on this reasoning, the trial court denied the motion to suppress.

After her motion to suppress had been denied, McKenna stipulated to the facts of the case and submitted to a bench trial. She was convicted, and this appeal followed.

It is undisputed that when Officer Stair ordered McKenna to empty her pockets, he was conducting a warrantless search of her pockets. ¹¹ The trial court implicitly so found, and the State does not assail its findings. The issue, then, is whether Stair's search of McKenna's pockets was justified under the Fourth Amendment to the United States Constitution. ¹²

The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures...." It "prohibits warrantless searches unless the search is justified under an established exception to the warrant requirement." ¹³ The State bears the burden of proving that a warrantless search falls under an established exception. ¹⁴

Two established exceptions are a search conducted with consent and a search incident to valid arrest. ¹⁵ The State does not rely on consent, ¹⁶ nor does it assign error to the trial court's finding that McKenna did not consent to a search of her person. ¹⁷ The State does, however, argue search incident to a valid arrest.

According to the United States Supreme Court, the search-incident exception has historically involved two questions: (1) May a search be made of the arrestee's person? (2) May a search be made of the area within the arrestee's control? ¹⁸

The first of these questions is the one involved here. Without additional cause, an officer may search the person of an arrestee incident to a lawful custodial arrest. ¹⁹ The arrest need not precede the search, ²⁰ but it must be contemporaneous with the search. ²¹ The officer must have probable cause to arrest before commencing the search, ²² which is also to say that the arrest cannot be justified by the fruits of the search. ²³ The reasons for allowing the search are to protect the officer and prevent the destruction of evidence, ²⁴ or, put another way, to find and control weapons and evidence that might be on the person of the arrestee. It is thought that while the officer transports the arrestee to jail, the arrestee will have both motive and opportunity to use any weapon that might be on his or her person, and also to destroy any evidence that might be on his or her person.

Although an officer may search incident to a lawful custodial arrest, he or she may not search incident to a lawful non custodial arrest. ²⁵ It is thought that the officer and arrestee will be in close proximity for only a few minutes, and the arrestee, who is about to be released anyway, will have little motivation to use a weapon or destroy evidence. The officer may pat the arrestee for weapons if he or she reasonably suspects the arrestee is armed. ²⁶

The right to search incident to a lawful custodial arrest- , once acquired, terminates no later than when the officer announces that the arrestee will be released rather than booked. ²⁷ Thereafter, the situation is the same as a noncustodial arrest, in that the arrestee will have little motivation to use a weapon or destroy evidence, and the officer will have little need to conduct a full search of the person. The officer may still pat for weapons if he or she reasonably suspects that the arrestee/releasee is armed. ²⁸

In this case, Coulter arrested McKenna, and Stair did also. Our task is to analyze whether either arrest supports Stair's search of McKenna's pockets under the principles just set forth. We begin with Coulter's arrest.

Coulter's arrest of McKenna will not support Stair's search of McKenna's pockets for at least two reasons. First, it was noncustodial. Coulter knew the jail situation, and because of it, he never formed an intent, much less manifested an intent, to arrest McKenna custodially. Perhaps this is best illustrated by the fact that after he learned of the outstanding warrants, he told both McKenna and her passenger to contact the municipal court on their own.

Second, Coulter's arrest of McKenna terminated before Stair searched McKenna's pockets. It is virtually undisputed, based on the officers' intent and also their objective manifestations, that McKenna was free to go once Coulter finished writing citations. Indeed, Stair was offering to give her a ride home when he suggested that he search her bag and her person. Even if Coulter's arrest could somehow be considered custodial, so that it could support a search-incident at some earlier point in time, it cannot support a search-incident after McKenna had been told she was free to go.

Likewise, Stair's arrest of McKenna will not support a search-incident because it was based only on the fruits of the search itself. The drug paraphernalia in the duffle bag did not give cause to arrest, because mere possession of drug paraphernalia is not a crime. ²⁹ Like Coulter, Stair knew the jail was overcrowded, and that the officers were not going to arrest McKenna custodially, outstanding warrants notwithstanding. The record is devoid of any other reason to arrest, except the methamphetamine...