Opinion
No. 27220-6-III.
Filed: September 3, 2009.
Appeal from the Superior Court, Grant County, No. 07-1-00202-5, John M. Antosz, J., entered May 20, 2008.
Reversed by unpublished opinion per Schultheis, C.J., concurred in by Sweeney and Korsmo, JJ.
Unpublished Opinion
The State appeals from a trial court suppression order in which the court found a search unlawful because it was incident to a noncustodial arrest. The State contends that the trial court improperly relied on the arresting officer's subjective intent, rather than an objective determination of whether a reasonable detainee would consider himself or herself under full custodial arrest. We agree and reverse.
FACTS
Near dusk on March 30, 2007, Washington Department of Fish and Wildlife law enforcement officer Michael Jewel was on patrol near Lake Lenore. Upon cresting a small rise, he saw an illegally parked van. Officer Jewel stopped about 25-30 yards from the van and observed two occupants through binoculars. He saw the front passenger, later identified as Crystal Darling, "making some furtive movements with her hands in her lap." Clerk's Papers (CP) at 38.
Officer Jewel drove up to the van and informed the driver that he was parked in violation of posted parking regulations. As the officer looked through the driver's window, he noticed a male passenger lying on a seat in the back of the van. He also noticed that Ms. Darling's hands were in her lap and that she appeared to be trying to hide something. Officer Jewel asked her to move her hands. As she did so, he saw her place a baggie containing a white powdery substance between her legs. Officer Jewell suspected the substance was drugs.
While standing on the driver's side of the van, Officer Jewel asked Ms. Darling to exit the van. She complied and walked over to him. He handcuffed her but did not tell her that she was under arrest. Officer Jewel escorted Ms. Darling to the passenger side of the van where he saw a baggie of methamphetamine and a pipe between the passenger seat and the door. He removed the items and then advised Ms. Darling that she was under arrest.
The State charged Ms. Darling with unlawful possession of methamphetamine and use of drug paraphernalia. Prior to trial, Ms. Darling moved to suppress the evidence seized from the van, arguing it was illegally seized because she was not under formal custodial arrest when Officer Jewel removed the evidence from the van.
At the CrR 3.6 hearing, Officer Jewell testified that Ms. Darling was not under arrest when he handcuffed her but that "[s]he was being lawfully detained." CP at 47. He explained, "When I walked around the vehicle, I still had her in, in custody . . . I was escorting her, I looked at the, the baggie and the pipe, that's when I made the decision that Ms. Darling was under arrest, I merely didn't udder [sic] the words to her until after I had seized the baggie and the pipe." CP at 61-62.
The trial court found that Ms. Darling was not under formal custodial arrest when Officer Jewel seized the contraband and therefore concluded that the search incident to arrest exception did not apply. Accordingly, the trial court suppressed the evidence and dismissed the case. The State appeals.
ANALYSIS
The issue is whether the trial court erred in concluding that Ms. Darling was not under formal custodial arrest when Officer Jewel removed the evidence from the car. We review disputed findings of fact on a motion to suppress for substantial evidence. State v. Mendez, 137 Wn.2d 208, 214, 970 P.2d 722 (1999). Conclusions of law are reviewed de novo for legal error. Id.
Under both the federal and state constitutions, warrantless searches are presumed invalid unless the State can establish that the search falls under one of the carefully drawn exceptions to the warrant requirement. State v. Parker, 139 Wn.2d 486, 496, 987 P.2d 73 (1999). Occupants of automobiles have a privacy interest under our state constitution, which includes "freedom from warrantless searches absent special circumstances." State v. Stroud, 106 Wn.2d 144, 148, 720 P.2d 436 (1986). One such circumstance or exception to the warrant requirement is the search incident to arrest exception. Id. at 152. Under this exception, an officer may conduct a warrantless search of an arrestee and the area that was within the arrestee's immediate control at the time of a valid custodial arrest. Id.
A search incident to arrest is valid if there is probable cause to arrest a suspect and an "actual custodial arrest." State v. O'Neill, 148 Wn.2d 564, 585, 62 P.3d 489 (2003). The O'Neill court explained that "it is the arrest, not probable cause to arrest, that constitutes the necessary authority of law for a search incident to arrest." Id. at 585-86. Thus, "a valid custodial arrest is a condition precedent to a search incident to arrest as an exception to the warrant requirement under article I, section 7 [of the Washington State Constitution]." Id. at 587.
The State assigns error to the trial court's finding that "[neither] Ms. Darling, nor anyone else associated with the van, was under formal custodial arrest at the time Officer Jewel seized the suspected contraband from inside the van." CP at 95. It also assigns error to the court's related conclusion that "Officer Jewel made a warrantless seizure of [the evidence] without any applicable exception to the warrant requirement (e.g. search incident to lawful custodial arrest)." CP at 97.
In reaching its decision, the trial court applied a subjective test to determine whether Ms. Darling was under formal custodial arrest, explaining, "whether the defendant is actually under formal custodial arrest that can be determined from the officer. So, from the officer's own words, this was not a formal custodial arrest." CP at 88.
The State contends that the trial court's reliance on the officer's subjective intent is improper. It argues that the proper test to determine whether a person is under actual custodial arrest is an objective one, i.e., whether a reasonable detainee would consider himself or herself not free to leave.
The State is correct. This court has held that, "the determination of custody hinges upon the `manifestation' of the arresting officer's intent." State v. Radka, 120 Wn. App. 43, 49, 83 P.3d 1038 (2004). In Radka, we noted that "[a]ppellate court examinations of the issue of custodial arrest . . . have retreated from the consideration of the arresting officer's intent." Id. Instead, we look to the perception of the detainee to determine when an arrest is custodial:
[R]ather than the subjective intent of the officer, the test is whether a reasonable detainee under these circumstances would consider himself or herself under full custodial arrest. 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. Telling the suspect that he or she is under arrest also suggests custodial arrest.
Id. (emphasis added) (citation omitted).
In Radka, police detained the defendant for driving with a suspended license and placed him in the back of a patrol car. The defendant was not handcuffed and was allowed to make cell phone calls. Applying an objective test, we found that under these circumstances, a reasonable detainee would believe that he was not under custodial arrest. Id. at 50. We concluded that the lack of actual custodial arrest rendered the subsequent search of the car unconstitutional. Id.; see also State v. Craig, 115 Wn. App. 191, 196, 61 P.3d 340 (2002) (finding a custodial arrest where a detainee is told that he is under arrest and handcuffed); State v. Clausen, 113 Wn. App. 657, 660-61, 56 P.3d 587 (2002) (finding a custodial arrest where a detainee is told that he or she is under arrest and will be released after booking).
Here, Officer Jewel ordered Ms. Darling out of the car, handcuffed her, and then escorted her back to the passenger side of the car where he saw the contraband. Although he did not tell her that she was under arrest before he retrieved the contraband, he also did not tell her she was free to leave. Compare State v. McKenna, 91 Wn. App. 554, 561, 958 P.2d 1017 (1998) (finding a noncustodial arrest where officers released the defendant and told her she was free to leave prior to search). Officer Jewel's testimony that Ms. Darling was not under arrest when he handcuffed her is immaterial to our determination. Radka, 120 Wn. App. at 49; see also State v. Glenn, 140 Wn. App. 627, 639, 166 P.3d 1235 (2007) ("The officers' subjective, unspoken perception that [the defendant] was not under formal arrest is irrelevant."). Again, the relevant inquiry is whether a reasonable person in Ms. Darling's circumstances would consider herself under full arrest.
WE CONCLUDE that under the circumstances here, a reasonable person would consider herself under custodial arrest and not free to leave. Therefore, the trial court improperly granted Ms. Darling's motion to suppress evidence.
Reversed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, J and KORSMO, J., concur.