State v. Patterson

• Decision Date: 15 June 1989
• Docket Number: No. 54111-6,54111-6
• Citation: 112 Wn.2d 731,774 P.2d 10
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Petitioner, v. Marcus Dwayne PATTERSON, Respondent.

Page 731

112 Wn.2d 731

774 P.2d 10

The STATE of Washington, Petitioner, v. Marcus Dwayne PATTERSON, Respondent.

No. 54111-6.

Supreme Court of Washington En Banc.

June 15, 1989.

Arthur D. Curtis, Clark County Prosecutor, Richard Melnick, Deputy, Vancouver, for petitioner.

Washington Appellate Defender Ass'n, Eric J. Nielsen, Seattle, for respondent.

Norm Maleng, King County Prosecutor, William L. Downing, Deputy, Seattle, amicus curiae, for petitioner.

Allen & Hansen, P.S., Richard Hansen, David Allen, Seattle, amicus curiae, for respondent.

UTTER, Justice.

The State seeks review of a Court of Appeals decision affirming a trial court's suppression of evidence based on the State's failure to show that exigent circumstances necessitated searching a parked, secured, unoccupied car without a warrant. We reverse and find there were enough additional factors in this case to constitute "exigent circumstances."

The facts are stipulated. At 6:06 a.m. on November 16, 1982, Officers Abernathy and Krueger were dispatched to respond to a burglary at the American Music Company. Officer Krueger arrived at the scene within 30 seconds of dispatch. En route, Krueger noticed a white-over-blue Cadillac going the wrong way on a 1-way street 2 blocks from the music store. At the store, Krueger observed the display window was broken. He advised responding units about the white over blue Cadillac but did not give the license number or other identifying information. After the owner of the store arrived, he told Krueger that two "P.A. Boards" were missing.

At 6:11 a.m., Officer Abernathy located a white over blue Cadillac parked at an apartment complex 6 blocks from the music store. Officer Ferrell arrived shortly thereafter. The officers noticed a white amp pig-tail hanging outside the right front door of the car. The treads of the car were wet but the sidewalls and hubcaps were dry. The ground under the car was dry. Without entering the car, the officers observed two stereo amplifiers on the passenger seat, one with a price tag attached and both apparently new. They also observed that the front floor mats were wet, the driver's side wetter than the passenger's side. The apartment Officers Kandoll and McNicholas joined Abernathy and Ferrell. No officer attempted to obtain a search warrant through any means. Officer Ferrell entered the car and found a receipt made out to Marcus Patterson in the glove box and an address book on the floorboard. A radio check showed the car registered to Victor Dolezal. The address book led the officers to Cheryl Thomas's apartment where they found Marcus Patterson. The officers arrested Patterson approximately 20 minutes after they had located the Cadillac. After being advised of his constitutional rights, Patterson stated that he understood them and confessed.

                manager told the officers that her husband's car had been parked in the same parking space until shortly before 6 a.m. when he had left for work.   The officers did not know the whereabouts of the driver of the vehicle
                

On November 19, 1982, Patterson pleaded not guilty to charges of second degree burglary and second degree theft. After he failed to appear for trial, he was arrested on a bench warrant in January 1986. He moved to suppress both the evidence found in his car and his confession. The trial court found that although the officers had probable cause to search the car, there were no exigent circumstances that made it impractical for the officers to obtain a warrant. Consequently, the court suppressed the evidence. Because the ruling on suppression disposed of the case, the trial court dismissed it with prejudice. The Court of Appeals affirmed the trial court's decision. We granted the State's petition for review.

A recent case from our sister state discusses the availability of constitutional protections where there is a parked, unoccupied car. State v. Kock, 302 Or. 29, 725 P.2d 1285 (1986). At 5:30 a.m., two officers were watching the parking and entry area of a store. They knew that the defendant, an employee, had no authority to remove merchandise from the store. At 5:42 a.m., the defendant left the store carrying a box covered with newspaper. He approached his car, removed something from the box, placed it in the car, and The Oregon court rejected an argument that this was a search incident to arrest and focused on the narrow issue that is also before us. They assumed there was probable cause for the search of the automobile, as exists in our case, but stated:

                partially covered the item with clothing.   After the defendant returned to the store, the officers approached the car.   Without entering the car, they could not identify the item.   They opened the door, seized the item, and found [774 P.2d 12] it contained merchandise.   An arrest of the defendant followed.  725 P.2d at 1286
                

We nevertheless hold that any search of an automobile that was parked, immobile and unoccupied at the time the police first encountered it in connection with the investigation of a crime must be authorized by a warrant issued by a magistrate or, alternatively, the prosecution must demonstrate that exigent circumstances other than the potential mobility of the automobile exist.

725 P.2d at 1287. The court relied on Oregon's constitution to decline to follow California v. Carney, 471 U.S. 386, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985).

Our preexisting case law compels us to reach the same conclusion as the Oregon court in Kock. Pursuant to the unique language of our own constitution, we have carefully restricted automobile searches to balance an individual's privacy interest against a real state and societal need to search; mere convenience is simply not enough. See Seattle v. Mesiani, 110 Wash.2d 454, 755 P.2d 775 (1988) (an individual's privacy interest in a vehicle outweighed the State's interest in regulating vehicles by instituting a sobriety checkpoint program); State v. Kennedy, 107 Wash.2d 1, 726 P.2d 445 (1986) (an officer's "objective reasons" for believing an investigatee might be hiding a weapon, and a risk of danger to officers, warranted a Terry stop search for weapons within the immediate control of the investigatee or a companion); State v. Stroud, 106 Wash.2d 144, 720 P.2d 436 (1986) (potential danger to officers and destructibility of evidence warranted a bright line rule for a search incident Necessity, a societal need to search without a warrant, provides the underlying theme in these decisions. Against societal need, we balance privacy interests provided by article 1, section 7 of our own constitution. Both analysis under the factors outlined in State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986), and scholarly commentary support our independent interpretation of that provision. See Gunwall, (analyzing art. 1, § 7); see also Nock, Seizing Opportunity, Searching for Theory: Article I, Section 7, 8 U.Puget Sound L.Rev. 331, 366 (1985).

to arrest); State v. Simpson, 95 Wash.2d 170, 622 P.2d 1199 (1980) (search of a VIN [serial] number located inside the door of a parked, locked, unoccupied truck when the defendant was in custody violated Const. art. 1, § 7 and the Fourth Amendment).

In the areas of search incident to arrest and Terry stops, we found that concerns for the safety of officers and potential destructibility of evidence do outweigh privacy interests and warrant a bright line rule permitting limited searches. See State v. Stroud, supra; State v. Kennedy, supra. However, the concerns are not the same when officers approach a parked, immobile, unoccupied, secured vehicle. In such a situation no bright line rule is necessary. If exigencies in addition to potential mobility exist, they will justify a warrantless search.

Given this background, the only remaining question is whether there were particularized exigent circumstances that would excuse the officers' failure to seek a warrant. The facts of this case provide such circumstances when we focus on the proximity in time and place and on the immediacy of the defendant's flight from the car.

Only 5 minutes elapsed between the time the officers responded to the alarm and Officer Abernathy located the white over blue Cadillac described by Officer Krueger. When found, the car was within 6 blocks of the music store. Several factors indicate that the suspect had, within less than 5 minutes, fled the vehicle and might be hiding in the immediate area. The treads of the car were wet, but the The freshness of the pursuit is apparent. Had the officers delayed the search by applying for a warrant, the suspect could have moved far from the immediate scene. The evidence found by searching the car enabled the officers to arrest the suspect in the neighborhood within 20 minutes of finding the car.

                sidewalls and hubcaps were dry;  the ground under the car was dry;  and the front floor mats were wet.   The apartment manager had told the officers that her husband's car had been parked in that parking space until shortly before 6 a.m.   The white amp pig-tail hanging[774 P.2d 13]  out of the door indicated the occupant had left in a hurry
                

Taken together, these factors constitute exigent circumstances sufficient to allow a warrantless search of a parked, secured, unoccupied vehicle. Courts have found exigency "when there is an immediate need to continue a promising criminal investigation." McCary v. Commonwealth, 228 Va. 219, 321 S.E.2d 637, 642 (1984) (listing decisions). "This exigency is said to be 'within the spirit, though not the text, of the "hot pursuit" exception.' " McCary, 321 S.E.2d at 642 (quoting United States v. Robinson, 533 F.2d 578, 583 (D.C.Cir.1975), cert. denied, 424 U.S. 956, 96 S.Ct. 1432, 47 L.Ed.2d 362 (1976). In both McCary and Robinson, the courts focused on the gravity of the offense (bank robberies); the immediacy of the investigation (cars found within 1-2 hours); the belief that the suspects were armed; the likelihood that the suspects,...