State v. Swetz

• Decision Date: 11 February 2011
• Docket Number: No. 39617–3–II.,39617–3–II.
• Citation: 160 Wash.App. 122,247 P.3d 802
• Parties: STATE of Washington, Respondent,v.Joshua A. SWETZ, Appellant.
• Court: Washington Court of Appeals

160 Wash.App. 122

247 P.3d 802

STATE of Washington, Respondent,

v.Joshua A. SWETZ, Appellant.

No. 39617–3–II.

Court of Appeals of Washington, Division 2.

Feb. 11, 2011.

John A. Hays, Attorney at Law, Longview, WA, for Appellant.Lori Ellen Smith, Attorney at Law, Centralia, WA, for Respondent.ARMSTRONG, P.J.

[160 Wash.App. 126] ¶ 1 Joshua Swetz appeals his convictions for possession of a controlled substance and possession of marijuana, arguing the arresting officer's warrantless search of his vehicle incident to his arrest violated his right to privacy under article I, section 7 of our state constitution. We reverse Swetz's convictions and remand with instructions to suppress the evidence seized from his vehicle.

FACTS

¶ 2 At 1:30 a.m. on the morning of August 19, 2008, Officer Osterdahl was patrolling the City of Morton when Swetz flagged him down and told him that he had seen a black bear roaming the streets. Officer Osterdahl drove to the area that Swetz had described and saw a dog chasing a bear. Later that morning, Officer Osterdahl pulled up next to Swetz's parked vehicle and Swetz approached the officer's window. During their conversation, Officer Osterdahl noticed a “strong odor of burnt marijuana” on Swetz's breath and person. Report of Proceedings (RP) at 27. Officer Osterdahl walked with Swetz back to his vehicle and saw a bag of marijuana sitting on the passenger seat.¹

¶ 3 Officer Osterdahl arrested Swetz for possession of marijuana, handcuffed him, placed him in the back seat of the patrol car, and advised him of his Miranda rights.² He then searched Swetz's car and found additional containers of marijuana in the glove box, glass pipes with marijuana residue, and several containers of Diazepam pills.³ The State charged Swetz with one count of possession of a controlled substance, Diazepam, and one count of possession of marijuana, and a jury convicted him of both counts. RCW 69.50.4013(1), .4014.

ANALYSIS

I. Standard of Review

¶ 4 Swetz relies on State v. Patton, 167 Wash.2d 379, 219 P.3d 651 (2009), and State v. Buelna Valdez, 167 Wash.2d 761, 224 P.3d 751 (2009), to argue that Officer Osterdahl's warrantless search of his vehicle exceeded the scope of a permissible search incident to arrest under article I, section 7 of our state constitution. He concedes that Officer Osterdahl's search was permissible under Arizona v. Gant, ––– U.S. ––––, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), and the Fourth Amendment to the federal constitution, but he argues that the search incident to arrest exception is narrower under article I, section 7.

A. Manifest Error

¶ 5 Swetz did not challenge Officer Osterdahl's vehicle search at trial because Patton and Buelna Valdez were decided after his trial and convictions.⁴ Generally, we apply new constitutional rules of criminal procedure to all cases pending on direct review or not yet final. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). And an appellant can raise an alleged error for the first time on appeal if it is manifest and affects a constitutional right. RAP 2.5(a)(3); State v. McFarland, 127 Wash.2d 322, 333, 899 P.2d 1251 (1995).

¶ 6 The alleged error here affected Swetz's constitutional right to privacy under article 1, section 7 of our state constitution. See Buelna Valdez, 167 Wash.2d at 771–72, 224 P.3d 751; Patton, 167 Wash.2d at 385–86, 219 P.3d 651. The error is “manifest” if it is apparent in the record and actually affected Swetz's rights. See McFarland, 127 Wash.2d at 333, 899 P.2d 1251. Nothing in the record justifies Officer Osterdahl's warrantless search of Swetz's vehicle incident to his arrest, and the evidence seized from his vehicle provided the basis for the charges against him. As discussed in detail below, such a search exceeds the scope of a permissible search incident to arrest under our state constitution. The error is therefore manifest.

B. Waiver

¶ 7 There is presently a split within Division Two of this court regarding whether a defendant can challenge a search under Gant for the first time on appeal. See, e.g., State v. Harris, 154 Wash.App. 87, 98–99, 224 P.3d 830 (2010); State v. McCormick, 152 Wash.App. 536, 539–40, 216 P.3d 475 (2009); State v. Millan, 151 Wash.App. 492, 499–500, 212 P.3d 603 (2009), rev. granted, 168 Wash.2d 1005, 226 P.3d 781 (2010). This split presumably applies to arguments raised for the first time on appeal under Patton and Buelna Valdez as well. We follow the cases holding that a defendant can challenge a vehicle search for the first time on appeal and hold that Swetz did not waive the right to challenge the search of his vehicle. See Harris, 154 Wash.App. at 98–99, 224 P.3d 830; McCormick, 152 Wash.App. at 539–40, 216 P.3d 475.

¶ 8 Additionally, the Supreme Court of Washington's recent opinion in State v. Afana, 169 Wash.2d 169, 233 P.3d 879 (2010), supports considering Swetz's argument for the first time on appeal even though the record regarding his arrest and the search of his car is not as developed as it would have been had Swetz moved to suppress the evidence below. The Afana court applied Gant, Patton, and Buelna Valdez without discussing waiver or retroactivity and held that a vehicle search violated article I, section 7 of our state constitution, even though the record regarding the arrest and search was poorly developed:

The suppression hearing ... addressed the legality of the deputy's request for Bergeron's identification, not the arrest and search incident to arrest. Thus, the trial court did not make specific findings of fact regarding Bergeron's arrest, finding only that the deputy “arrested the passenger on the warrant.”

Afana, 169 Wash.2d at 174 n. 1, 233 P.3d 879. The Afana court reasoned that “[i]t is the State's burden to show that the automobile search incident to arrest exception applies” and “[n]othing in the record justifies the search that took place here as incident to arrest.” Afana, 169 Wash.2d at 177–78, 233 P.3d 879. Thus, we address the merits of Swetz's arguments.

II. Search Incident to Arrest

¶ 9 Both the Fourth Amendment to the federal constitution and article I, section 7 of our state constitution prohibit warrantless searches unless one of the narrow exceptions to the warrant requirement applies.⁵ See Buelna Valdez, 167 Wash.2d at 768, 771–72, 224 P.3d 751; State v. Winterstein, 167 Wash.2d 620, 628, 220 P.3d 1226 (2009). Article I, section 7 provides more extensive privacy protections than the Fourth Amendment and creates “ ‘an almost absolute bar to warrantless arrests, searches, and seizures.’ ” Buelna Valdez, 167 Wash.2d at 772, 224 P.3d 751 (quoting State v. Ringer, 100 Wash.2d 686, 690, 674 P.2d 1240 (1983)).

¶ 10 In Gant, the Supreme Court held that a search incident to arrest under the Fourth Amendment may be justified by three separate bases—officer safety, the preservation of evidence, and searching for evidence of the crime of arrest:

[T]he Chimel rationale authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. Although it does not follow from Chimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”

Gant, 129 S.Ct. at 1719 (quoting Thornton v. U.S., 541 U.S. 615, 632, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004) (citing Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969))).

¶ 11 In contrast, the Supreme Court of Washington held in Patton that a search incident to arrest under article I, section 7 must be justified by concerns for officer safety or the preservation of evidence:

Today we hold that the search of a vehicle incident to the arrest of a recent occupant is unlawful absent a reasonable basis to believe that the arrestee poses a safety risk or that the vehicle contains evidence of the crime of arrest that could be concealed or destroyed, and that these concerns exist at the time of the search.

Patton, 167 Wash.2d at 394–95, 219 P.3d 651 (emphasis added). The Patton court also expressly disapproved of prior cases that applied the search incident to arrest exception to situations where the arrestee was secured and no longer posed a risk to the arresting officers:

[W]e also recognize that we have heretofore upheld searches incident to arrest conducted after the arrestee has been secured and the attendant risk to officers in the field has passed. Today, we expressly disapprove of this expansive application of the narrow search incident to arrest exception.

Patton, 167 Wash.2d at 395, 219 P.3d 651. The Patton court did not carve out an additional exception allowing officers to search for evidence of the crime of arrest once the arrestee is secured.

¶ 12 In Buelna Valdez, our Supreme Court recently elaborated upon the search incident to arrest exception and reasoned that the exception applies only when officers are unable to delay their search to obtain a warrant because the arrestee poses a threat to officer safety or the preservation of evidence:

[W]hen an arrest is made, the normal course of securing a warrant to conduct a search is not possible if that search must be immediately conducted for the safety of the officer or to prevent concealment or destruction of evidence of the crime of arrest. However, when a search can be delayed to obtain a warrant without running afoul of those concerns (and does not fall under another applicable exception), the warrant must be obtained. A warrantless search of an automobile is permissible under the search incident to arrest exception when that search is necessary to preserve officer safety or prevent destruction or concealment of evidence of the crime of arrest.

Buelna Valdez, 167 Wash.2d at 777, 224 P.3d 751 (emphasis added). The ...