Opinion
No. 61719-2-I.
March 16, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-1-11047-6, William L. Downing, J., entered April 17, 2008.
Affirmed by unpublished opinion per Schindler, C.J., concurred in by Grosse and Lau, JJ.
UNPUBLISHED OPINION
Christopher Piekarski was convicted of unlawful possession of oxycodone. For the first time on appeal, Piekarski contends the admission of evidence discovered in a search of his vehicle incident to his lawful arrest violated his constitutional rights under the Fourth Amendment of the United States Constitution and article I, section 7 of the Washington State Constitution. Because the facts necessary to address the claimed error are not in the record, and Piekarski cannot show actual prejudice, we affirm.
FACTS
At approximately 9:15 p.m. on May 27, 2007, Washington State Patrol Trooper Len McLaughlin was patrolling Central Avenue in Kent when he saw a van driving without headlights. When Trooper McLaughlin pulled up next to the van, he also noticed that the driver was not wearing a seatbelt. Trooper McLaughlin activated his emergency lights and pulled the van over.
The driver of the van was Christopher Piekarski. When Trooper McLaughlin ran a license check, he learned that Piekarski's license was suspended. Trooper McLaughlin informed Piekarski that he was under arrest for driving with a suspended license. Trooper McLaughlin handcuffed Piekarski and placed him in the back seat of the patrol car.
Trooper Grant Slish arrived shortly thereafter. Trooper Slish advised Piekarski of his Miranda rights. Piekarski waived his rights. Trooper Slish testified that Piekarski's eyes were extremely constricted even though it was dark and he suspected Piekarski was under the influence of narcotics.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
Trooper Slish asked Piekarski if there were any drugs in the van. Piekarski said that there were none. When Trooper Slish searched the van, he found five small, white pills wrapped in cellophane under a soda can in the center console area. Trooper Slish also found a container with a prescription for oxycodone in the name of Piekarski's girlfriend.
Piekarski admitted that he tried to throw the pills out of the window immediately before the traffic stop. Piekarski also admitted that he did not have a prescription for oxycodone. While searching the surrounding area, Trooper Slish located what appeared to be several smashed pills on the pavement. The State charged Piekarski with possession of oxycodone in violation of the Uniform Controlled Substance Act.
Before trial, Piekarski filed a motion to suppress the evidence seized as a result of the traffic stop. Piekarski argued that the evidence seized from the van should be suppressed because the traffic stop and search were a mere pretext to investigate other suspected criminal activity in violation of his rights under the Washington State Constitution. Troopers Slish and McLaughlin both testified at the CrR 3.6 hearing.
The trial court rejected Piekarski's claim that the stop and the search were pretextual and denied Piekarski's motion to suppress. The court's findings state that the "stop was based on the traffic infractions viewed by Trooper McLaughlin and not for any other reason, or based on any impure or improper motivation by police," that Trooper McLaughlin was authorized "to contact [Piekarski] and request his name and identification in order to issue a citation," and that "[d]uring a proper investigation of the defendant's identification for purposes of issuing a citation, Trooper McLaughlin learned that there was probable cause for the defendant's arrest for the crime of Driving While License Suspended in the Third Degree." The court concluded that "[t]he recovery of the suspected Oxycodone, and all other recovered evidence subsequent to this arrest, was lawful and is admissible at trial."
Piekarski agreed to a stipulated bench trial. The court found Piekarski guilty as charged and imposed a standard range sentence.
ANALYSIS
For the first time on appeal, Piekarski challenges the search of his van incident to arrest. Piekarski argues that, because he was arrested, handcuffed, and placed in the back of the patrol car, the warrantless search of his van was unreasonable because it was not justified under the search incident to arrest exception to the exclusionary rule. Because the evidence discovered as a result of the search should have been suppressed, Piekarski argues this court should reverse and remand for dismissal with prejudice.
We reject Piekarski's claim that the grounds for suppression urged at trial "implicated the search incident to arrest concepts as they apply in car search cases." Br. of Appellant at 19. The record belies this assertion. Contrary to Piekarski's argument, he argued at trial that the incriminating evidence must be suppressed because the decisions by Troopers McLaughlin and Slish to stop and search his vehicle "were simply a pretext to search for evidence of criminal activity." Clerks Papers (CP) at 12.
Generally, issues raised for the first time on appeal are not subject to review. A recognized exception to this rule exists if there is a "manifest error affecting a constitutional right." RAP 2.5(a)(3). This exception to the general rule exists because constitutional errors "often result in serious injustice to the accused and may adversely affect public perceptions of the fairness and integrity of judicial proceedings." State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).
It has long been the law in this state and elsewhere that the exclusionary rule may not be invoked for the first time on appeal. State v. Mierz, 127 Wn.2d 460, 468, 901 P.2d 286 (1995) (a defendant who fails to move to suppress evidence allegedly illegally obtained waives any error associated with the admission of the evidence); State v. Baxter, 68 Wn.2d 416, 423, 413 P.2d 638 (1966) ("The exclusion of improperly obtained evidence is a privilege and can be waived."); 5 Wayne R. LaFave, Search and Seizure, § 11.1(a), at 4 (3rd ed. 1996) (objection to illegally obtained evidence may not be raised for the first time after conviction). Nor may a defendant, for the first time on appeal, assert a theory which is significantly different from that underlying the pretrial suppression motion. United State v. Barrett, 703 F.2d 1076, 1086 n. 17 (9th Cir. 1983) (court refuses to address grounds for suppression not raised at trial level); State v. Baxter, 68 Wn.2d at 423; 5 Wayne R. LaFave, Search and Seizure, § 11.1(a) at 8.
And as the State contends because Piekarski raises the question of whether the search of the van as a search incident to arrest for the first time on appeal, the State did not have the opportunity below to establish and the trial court did not have the opportunity to consider the justification for the search. Consequently, as the State argues "this Court cannot tell from the record whether Piekarski consented to the search or whether the police may have intended to inventory the car, thus, leading to inevitable discovery."
Brief of Respondent (Br. of Resp't.) at 5. Piekarski cites State v. Rulan C., 97 Wn. App. 884, 889, 970 P.2d 821 (1999) in support of the proposition that the doctrine of inevitable discovery does not apply here and excuse the allegedly unlawful search of his van. But unlike the situation here, in Rulan C., the appellant did not raise a legal theory for suppression on appeal different from the one asserted at the trial level. Here, on the other hand, the core theory for suppression is not only new, but based on discrete and different facts. Given the fact that at trial Piekarski argued that he had been subjected to an unconstitutional pretextual traffic stop, it is certainly understandable why the State did not raise inevitable discovery below. Conversely, Piekarski's new theory for suppression presupposes that his arrest was proper and lawful. With this change in legal theories, there is a corresponding change, however slight, in the prospect of the doctrine of inevitable discovery applying here.
Piekarski relies heavily on Justice Brennan's dissent in New York v. Belton, 453 U.S. 454, 460, 101 S. Ct. 2860, 69 L. Ed. 2d 768 (1981), and Justice Scalia's concurrence in Thornton v. United States, 541 U.S. 615, 617, 124 S. Ct. 2127, 158 L. Ed. 2d 905 (2004), to argue that the search of the van following his arrest fell outside the scope of the search incident to arrest doctrine and was therefore unconstitutional. However, the majority opinions of Belton and Thornton are controlling.
Piekarski also cites State v. Adams, 146 Wn. App. 595, 191 P.3d 93 (2008) and State v. Quinlivan, 142 Wn. App. 960, 176 P.3d 605, rev. denied, 164 Wn.2d 1031 (2008), in support of his argument. But unlike in Adams and Quinlivan, Piekarski was inside his van when he was arrested.
Piekarski also claims he is merely asking this court to rule on a "purely legal question" because "he moved to suppress the evidence, the trial court held a hearing and all pertinent facts are of record." Even if that were true, the radical change in the suppression theory precluded the State from fully developing the facts underlying the particular exception to the exclusionary rule being challenged, or explore the justifications for the action taken by police. RAP 2.5(a)(3) was never intended to allow an appellant to gain an unfair advantage by simply waiting until the appeal to raise a particular issue. In sum, Piekarski has not met the criteria under RAP 2.5(a) for having his suppression issue considered for the first time on appeal.
Br. of Appellant. at 20.
In any event, even if we considered Piekarski's argument that the search incident to arrest violated his constitutional rights, he does not prevail. Warrantless searches and seizures violate the Fourth Amendment of the United States Constitution and article I, section 7 of the Washington State Constitution and are presumptively unreasonable unless they fall within an exception to the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 449, 91 S. Ct. 2022, 29 L.Ed.2d 564 (1971); Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L.Ed.2d 576 (1967); State v. Duncan, 146 Wn.2d 166, 171, 43 P.3d 513 (2002). The search of an automobile incident to a lawful custodial arrest is one of those exceptions. State v. Webb, 147 Wn. App. 264, 268, 195 P.3d 550 (2008).
In Belton, 453 U.S. at 460, the United States Supreme Court held that "when a policeman has made a lawful custodial arrest of the occupants of an automobile he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." In Thornton, the Court clarified that the Belton rule applies "even when an officer does not make contact until the person arrested has left the vehicle." Thornton, 541 U.S. at 617.
In State v. Stroud, 106 Wn.2d 144, 152, 720 P.2d 436 (1986), the Washington Supreme Court adopted the Belton Court's "bright-line rule," holding that "[d]uring the arrest process, including the time immediately subsequent to the suspect's being arrested, handcuffed, and placed in a patrol car, officers should be allowed to search the passenger compartment of a vehicle." The Stroud court crafted its ruling to create an easily applied test that reasonably balanced the need for effective police enforcement and the protection of individual rights. Stroud, 106 Wn.2d at 152.
Under the bright-line rule in Belton and Stroud the search of Piekarski's van incident to arrest was constitutional. And while the law may change in the future, until then, this court is bound by established precedent. State v. Burkins, 94 Wn. App. 677, 701, 973 P.2d 15 (1999) ("unless our Supreme Court decides to overrule itself, this court is bound by its rulings").
In State v. Gant, 216 Ariz. 1, 162 P.3d 640 (Ariz. 2007) cert. granted in part, 128 S. Ct. 1443, 170 L. Ed. 2d 274 (2008), the Arizona Supreme Court concluded that the subsequent search of the defendant's car was not a valid search incident to arrest, holding that when an arrestee is secured and is no longer a threat to officer safety or the preservation of evidence, the officer may not search the arrestee's vehicle incident to arrest. The Arizona court agreed with Justice Scalia's concurrence in Thornton where he stated that applying the Belton doctrine to justify a search of the car of a person handcuffed and confined in a police car "stretches [the doctrine] beyond its breaking point." State v. Gant, 162 P.3d 640 at 4 n. 2 (quoting Thornton, 541 U.S. at 625, (Scalia, J., concurring). Moreover, because the officers testified that they had no intention of impounding the car, which was safely parked in a residential driveway, the court held that the search could not be characterized as an inventory search. State v. Gant, 162 P.3d at 646. We decline Piekarski's request to adopt Gant's rationale.
Affirmed.