State v. Salinas

• Decision Date: 02 July 2012
• Docket Number: No. 65527–2–I.,65527–2–I.
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Hector Serano SALINAS, Appellant.

169 Wash.App. 210

279 P.3d 917

STATE of Washington, Respondent,

v.Hector Serano SALINAS, Appellant.

No. 65527–2–I.

Court of Appeals of Washington,

Division 1.

July 2, 2012.

Hillary A. Thomas, Whatcom County Prosecutor, Bellingham, WA, for Respondent.

Gregory Link, Susan Wilk, Washington Appellate Project, Seattle, WA, for Appellant.

BECKER, J.

[169 Wash.App. 214]¶ 1 Appellant Hector Salinas was convicted of rape based in part on evidence found on clothing taken from him after he was arrested. He contends the seizure and search of his clothing should have been suppressed because it was warrantless. We find no error. The search of a person incident to arrest is a valid exception to the warrant requirement, and its scope is unaffected by recent developments in the law pertaining to searches of automobiles incident to arrest.

FACTS

¶ 2 The rape occurred in Bellingham near Maritime Heritage Park on the night of June 20, 2008. The victim, DP, was homeless and living on the streets. She awoke to find a man sitting close to her. The man reached over and kissed her. He spoke Spanish. When DP stood up, the man grabbed her and hit her in the face. He had a knife in his hand. He raped her. Then he dragged her to a different area of the park where the assault continued.

¶ 3 Afterwards, DP flagged down a police car and told the officer she had been raped by a man with a knife. It was about 2:00 a.m. DP's face was bleeding and she could barely talk. She described her assailant as a Hispanic man wearinga stocking cap and having a mustache with possible chin hair. A canine officer arrived with his dog and began to track.

¶ 4 The dog led the officers to a man in a sleeping bag. They identified themselves as police and directed him to show his hands or the dog would be released. They were able to see that his appearance matched the description given by the victim. The man pulled his sleeping bag over his head, picked up a dark jacket, and ran towards the waterfront. The officers gave chase and found him hiding against a wall not far away. They ordered him to lie down on the ground. He kept trying to stand up. The police released the dog and permitted him to bite the man on the leg to get him to comply with their orders. The man then complied with the order to lie down. The police placed him in handcuffs.

¶ 5 The man had several identification cards with different names and dates of birth. The officers provided the information on these cards to police dispatch. They were eventually able to identify the man as Hector Salinas. They learned he was wanted on a felony arrest warrant out of Wenatchee. Salinas was taken to the police station where he was interviewed. The police conducted a search incident to arrest and collected his clothes as evidence.

¶ 6 The State charged Salinas with three counts of first degree rape and one count of first degree kidnapping. At trial, the jury heard testimony from forensic scientists who had examined Salinas' jacket, his underwear, and a rape kit containing samples taken from DP at the hospital on the night of the rape. DNA (deoxyribonucleic acid) evidence extracted from bloodstains on the jacket indicated that at least some of the blood was DP's. The DNA profiles from Salinas' underwear were consistent with a mixture of DP's and Salinas' DNA. Analysis conducted on swabs from the rape kit produced a DNA profile that matched Salinas.

¶ 7 Salinas testified in his own defense. He claimed he was not in the area of the park where the attack happened. On that night, he said, he found a sleeping bag and a bag of clothing, changed some of his clothes, went to sleep, and awoke to yelling. He ran away, not realizing he was being pursued by police.

¶ 8 A jury convicted Salinas as charged. The court sentenced him to life in prison as a persistent offender. This appeal followed.

MOTION TO SUPPRESS

¶ 9 Before trial, Salinas moved under CrR 3.6 to suppress evidence, including his identification and the DNA evidence obtained from his clothing. He assigns error to the order denying the motion.Identifying when the arrest took place

¶ 10 Salinas argues that he was searched incident to arrest before the arrest actually took place, in violation of article I, section 7 of the Washington Constitution.¹

¶ 11 The search incident to arrest exception to the warrant requirement is narrower under article I, section 7 than under the Fourth Amendment. State v. O'Neill, 148 Wash.2d 564, 584, 62 P.3d 489 (2003). Under the Washington Constitution, a lawful custodial arrest supported by probable cause to arrest is a constitutional prerequisite to any search incident to arrest. State v. Moore, 161 Wash.2d 880, 885, 169 P.3d 469 (2007). It is the arrest, not probable cause to arrest, that constitutes the necessary authority of law for a search incident to arrest. O'Neill, 148 Wash.2d at 585–86, 62 P.3d 489;State v. Patton, 167 Wash.2d 379, 393, 219 P.3d 651 (2009). “ ‘It states the obvious to observe that where a person is not under arrest there can be no search incident thereto.’ ” O'Neill, 148 Wash.2d at 585, 62 P.3d 489, quoting State v. Parker, 139 Wash.2d 486, 496–97, 987 P.2d 73 (1999).

[169 Wash.App. 217]¶ 12 As O'Neill demonstrates, not every seizure is an arrest. Police effect the seizure of a person when they objectively manifest that they are restraining the person's movement, and a reasonable person would believe that he or she is not free to leave. State v. Lund, 70 Wash.App. 437, 444, 853 P.2d 1379 (1993), review denied,123 Wash.2d 1023, 875 P.2d 635 (1994). A seizure may be only a limited detention for issuing a traffic citation, see State v. Hehman, 90 Wash.2d 45, 578 P.2d 527 (1978), or for conducting a brief investigation of possible criminal activity, as in a Terry² stop. Such seizures are distinct from an actual custodial arrest to detain the person for the purpose of later charging and trial. Lund, 70 Wash.App. at 444, 853 P.2d 1379.

¶ 13 It is undisputed that Salinas was seized at the end of the chase when he finally obeyed officers' commands to lie on the ground and was handcuffed. It is also undisputed on appeal that the police had probable cause to arrest him for rape at that time. The issue is whether the trial court correctly concluded that the seizure was a custodial arrest.

¶ 14 Salinas asserts that he was not under arrest when the police examined his identification cards. The officers testified that after they identified Salinas and learned of the outstanding felony warrant, they arrested him on the warrant. Salinas contends that the arrest on the warrant was invalid because it was dependent on identification information the police unlawfully obtained from his wallet before they arrested him.³

¶ 15 “ ‘An arrest takes place when a duly authorized officer of the law manifests an intent to take a person into custody and actually seizes or detains such person. The existence of an arrest depends in each case upon an objective evaluation of all the surrounding circumstances.’ ” Patton, 167 Wash.2d at 387, 219 P.3d 651, quoting 12 Royce A. Ferguson, Jr., Washington Practice: Criminal Practice & Procedure § 3104, at 741 (3d ed. 2004). In Patton, a police officer pulled his vehicle into a driveway behind the defendant's parked car with his lights activated. The officer immediately approached the defendant and told him he was under arrest and to put his hands behind his back. “Under an objective evaluation of all the surrounding circumstances, an arrest occurred.” Patton, 167 Wash.2d at 387, 219 P.3d 651.

¶ 16 The relevant inquiry to determine whether a person is in custody is “whether a reasonable person in the suspect's position at the time would have thought so.” State v. Rivard, 131 Wash.2d 63, 75, 929 P.2d 413 (1997). The test is objective. State v. Reichenbach, 153 Wash.2d 126, 135, 101 P.3d 80 (2004). It is not dependent on the subjective intent of the officer making the detention. State v. Radka, 120 Wash.App. 43, 49, 83 P.3d 1038 (2004). Rather, it hinges upon the manifestation of the arresting officer's intent. Radka, 120 Wash.App. at 49, 83 P.3d 1038.

¶ 17 “Typical manifestations of intent indicating custodial arrest are the handcuffing of the suspect and placement of the suspect in a patrol vehicle, presumably for transport.” Radka, 120 Wash.App. at 49, 83 P.3d 1038; see also Rivard, 131 Wash.2d at 76, 929 P.2d 413. “Whether an officer informs the defendant he is under arrest is only one of all of the surrounding circumstances, albeit an important one.” Patton, 167 Wash.2d at 387 n. 6, 219 P.3d 651. Here, the record contains no evidence about when, if ever, Salinas was directly told he was under arrest. We therefore consider other indicators.

¶ 18 After tracking Salinas to where he lay in his sleeping bag, the officers identified themselves as police, shined a flashlight in his face, and ordered him to show his hands. Seeing his face, they recognized that he matched the description given by the victim. When Salinas ran away toward the waterfront, police chased him down and ordered him to lie on the ground. The canine officer allowed the dog to bite Salinas to make him comply with their order. The officers handcuffed Salinas as he was lying on the ground. A reasonable person in this situation would have thought he was being arrested and taken into custody, not merely being detained for a brief investigation. The officers' testimony that they took him into custody and placed him under arrest for rape at this point is not negated by their testimony that they formally arrested Salinas on the warrant. The custodial arrest supplied the lawful authority justifying a search incident to arrest.

Scope of search incident to arrest

¶ 19 Salinas next contends the seizure and examination of his clothing was unlawful because it occurred without a warrant.

¶ 20 Under article I, section 7 of the Washington Constitution, warrantless searches are unreasonable per se, and any exceptions to the warrant...