State v. Smith

• Decision Date: 10 September 1992
• Docket Number: No. 58374-9,58374-9
• Citation: 835 P.2d 1025,119 Wn.2d 675
• Parties: STATE of Washington, Petitioner, v. Clayton Donald SMITH, Respondent.
• Court: Washington Supreme Court

Page 675

119 Wn.2d 675

835 P.2d 1025

STATE of Washington, Petitioner, v. Clayton Donald SMITH, Respondent.

No. 58374-9.

Supreme Court of Washington,

En Banc.

Sept. 10, 1992.

Jeffrey C. Sullivan, Pros. Atty., C. Bruce Hanify, Deputy Pros. Atty., Yakima, for petitioner.

Meyer, Fluegge & Tenney, P.S., John A. Maxwell, Jr., Yakima, for respondent.

Lenell Nussbaum, Seattle, amicus curiae, for respondent on behalf of Washington Ass'n of Crim. Defense Lawyers.

JOHNSON, Justice.

This case requires us to determine whether a search of an arrestee's "fanny pack" or "waist purse" ¹ is reasonable where the search is contemporaneous with the arrest and the arrestee was wearing the fanny pack just prior to the arrest. The trial court found Clayton D. Smith guilty of possession of cocaine, based on evidence found during a search of his fanny pack. The Court of Appeals concluded that the search was unreasonable, vacated the conviction and dismissed the charge. State v. Smith, 61 Wash.App. 482, 483, 810 P.2d 982 (1991). We hold that the search was reasonable under the Fourth Amendment as a search incident to arrest. We therefore reverse the Court of Appeals and reinstate the conviction.

On March 30, 1990, Yakima police officer Elaine Gonzales was patrolling in a marked police car. Gonzales spotted a large group of juveniles in a parking lot near an elementary school. As she approached this group, she noticed bottles of wine coolers and beer on the ground. Smith moved away from the group and began running when Gonzales got out of her car. Gonzales yelled at Smith to stop and began running after him. She noticed that Smith had a beer bottle in his hand. He threw the bottle away as Gonzales chased him. Gonzales also noticed Smith was wearing a black leather fanny pack around his waist. Gonzales caught up with Smith and tackled him. The fanny pack fell off during the struggle. She then arrested Smith for opening or consuming liquor in a public place.

Gonzales handcuffed Smith and retrieved both the fanny pack and one of Smith's shoes. She walked back to her car, placed Smith in the backseat and put the fanny pack on the front seat. At some point Gonzales consulted briefly with another officer at the scene, left the car to pick up full beer bottles that were lying on the ground, and reported via radio that she had a person in custody. She also may have performed a radio warrant check, although she does not remember doing so.

Gonzales eventually searched the fanny pack in her car, uncovering a pipe, some packages of marijuana, several plastic baggies, and a scale with cocaine residue. According to the Court of Appeals, the search occurred between 9 and 17 minutes after the arrest. Prior to trial Smith moved to suppress the evidence seized from the fanny pack on the grounds that there were no exigent circumstances to justify the officer's warrantless search. The trial court found that the search was reasonable as being incident to arrest, denied the motion and subsequently found Smith guilty of possession of cocaine.

The Court of Appeals reversed the trial court. Smith, 61 Wash.App. at 483, 810 P.2d 982. The Court of Appeals held that the search could not be justified as a search incident to arrest because the fanny pack was in the exclusive control of the arresting officer at the time of the search. Smith, 61 Wash.App. at 487, 810 P.2d 982. Because the Court of Appeals misinterpreted current federal law, we reverse. ²

A warrantless search is presumed unreasonable except in a few established and well-delineated exceptions. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). A search incident to a lawful arrest is such an exception. United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 471, 38 L.Ed.2d 427 (1973). Smith does not challenge the lawfulness of his arrest. Therefore our inquiry is limited to whether the search was incident to that arrest.

The Court of Appeals gave two reasons for deciding that the search could not be justified as being incident to arrest. First, the court found there were no exigent circumstances that justified the search. Smith, 61 Wash.App. at 486, 810 P.2d 982. Second, the court concluded that the search could not be justified as incident to arrest because the fanny pack was in the exclusive control of the arresting officer and there was no danger Smith might gain access to the pack. Smith, 61 Wash.App. at 487, 810 P.2d 982. To support its conclusion, the court relied on United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). See Smith, 61 Wash.App. at 487, 810 P.2d 982.

In Chadwick, officers arrested three individuals for suspicion of narcotics violations. At the time of the arrests, two of the arrestees were standing next to the open trunk of a car. The officers suspected that a footlocker in the trunk contained narcotics. The police seized the footlocker and transported it to a nearby federal building. Officers searched the footlocker over an hour and a half after the arrests. Chadwick- , 433 U.S. at 4, 97 S.Ct. at 2479. The Supreme Court ruled that the search was unreasonable, concluding that

[o]nce law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.

Chadwick, 433 U.S. at 15, 97 S.Ct. at 2485.

The Court of Appeals relied on that reasoning from Chadwick in reaching its conclusion that the search of Smith's fanny pack was not incident to his arrest. See Smith, 61 Wash.App. at 487, 810 P.2d 982. In so doing, however, the court failed to consider the Supreme Court's more recent holding in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

In Belton, a police officer stopped a car for a traffic violation and subsequently arrested its occupants for possession of marijuana. After the arrest, the officer found cocaine in a jacket on the backseat of the car. The defendant moved to suppress the cocaine at trial, but the court denied the motion. The New York Court of Appeals, relying on Chadwick, reversed the trial court and found the search unreasonable. Belton, 453 U.S. at 461-62, 101 S.Ct. at 2864-65. The Supreme Court reversed the Court of Appeals and ruled that the search of the jacket was a valid search incident to arrest. Belton, 453 U.S. at 462-63, 101 S.Ct. at 2865. The Court distinguished Chadwick on the grounds that Chadwick did not involve even "an arguably valid search incident to a lawful custodial arrest" because the search occurred "more than an hour" after the arrest. Belton, 453 U.S. at 462, 101 S.Ct. at 2865. In contrast, the search of Belton's jacket "followed immediately upon that arrest". Belton, 453 U.S. at 462, 101 S.Ct. at 2865. A search is thus incident to an arrest only if the two are contemporaneous.

The Court in Belton specifically rejected the argument that the officer's "exclusive control" of the jacket rendered the search unconstitutional. Belton, 453 U.S. at 461 n. 5, 101 S.Ct. at 2865 n. 5. Thus, for searches that are contemporaneous with the arrest, Belton eliminated the "exclusive control" holding of Chadwick. United States v. Morales, 923 F.2d 621, 627 (8th Cir.1991); United States v. Johnson, 846 F.2d 279, 282 (5th Cir.), cert. denied, 488 U.S. 995, 109 S.Ct. 562, 102 L.Ed.2d 587 (1988); United States v. Litman, 739 F.2d 137, 139 (4th Cir.1984); 2 W. LaFave, Search and Seizure § 5.5(a), at 535 (2d ed. 1987). Therefore our Court of Appeals' reliance upon that aspect of Chadwick was misplaced.

The Court in Belton ruled that officers who have made a lawful arrest of a car occupant may search any container found within the passenger compartment of that automobile. Belton, 453 U.S. at 460, 101 S.Ct. at 2864. ³ The Court reasoned that:

"The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification."

Belton, 453 U.S. at 461, 101 S.Ct. at 2864 (quoting United States v. Robinson, 414 U.S. at 235, 94 S.Ct. at 476). Thus Belton also eliminated the Chadwick requirement that a search incident to arrest be justified by separate exigent circumstances. United States v. Porter, 738 F.2d 622, 627 (4th Cir.), cert. denied, 469 U.S. 983, 105 S.Ct. 389, 83 L.Ed.2d 323 (1984); 2 W. LaFave, supra, at 535. Our Court of Appeals' holding to the contrary is, therefore, erroneous.

As a matter of federal law, the Court of Appeals erred in relying on Chadwick in this case. Pursuant to Belton, a search incident to arrest is valid under the Fourth AmendmentS (1) if the object searched was within the arrestee's control when he or she was arrested; and (2) if the events occurring after the arrest but before the search did not render the search unreasonable. United States v. Turner, 926 F.2d 883, 887 (9th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 103, 116 L.Ed.2d 73 (1991) (citing United States v. Fleming, 677 F.2d 602, 607 (7th Cir.1982)). We now apply this analysis to the facts of this case.

The first question is whether the fanny pack was in Smith's control when Officer Gonzales arrested him. An arrestee does not have to be in actual physical possession of an object for that object to be within his control for search incident to arrest purposes. In United States v. Fleming, 677 F.2d 602 (7th Cir.1982), two suspects were carrying paper bags...