Opinion
No. 50635-8-I.
Filed: March 22, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County. Docket No. 01-1-00341-3. Judgment or order under review. Date filed: 06/20/2002. Judge signing: Hon. Michael F Moynihan.
Counsel for Appellant(s), David Bruce Koch, Attorney at Law, 1908 E Madison St. Seattle, WA 98122.
Counsel for Respondent(s), Craig D. Chambers, Attorney at Law, Whatcom Co Prosecutor, 311 Grand Ave Fl 5, Bellingham, WA 98225-4048.
Melinda Beth Miller, Attorney at Law, PO Box 5842, Bellingham, WA 98227.
Kimberly Anne Thulin, Whatcom Cty Pros Atty's Office, 311 Grand Ave Ste 201, Bellingham, WA 98225-4038.
Stephen Gordon was arrested for driving under the influence, and police discovered cocaine in his car during a search incident to arrest. Gordon had locked the car after the police contacted him but before he was arrested. He contends the search was unlawful because the car was locked. We hold it was not, and affirm.
FACTS
Bellingham Police Officers Almer and Gutierrez were on bike patrol just after midnight when they observed a car driving erratically through the parking lot at Sunset Square Mall. The car traveled at excessive speed and nearly hit two different cars before parking across four marked parking spots. Stephen Gordon exited the vehicle and meandered through the parking lot toward the Slo Pitch Pub Eatery.
Suspecting Gordon had been driving under the influence, the officers stopped him on the sidewalk in front of the pub to speak with him concerning his driving and parking. Officer Almer observed that Gordon's eyes were red and watery and that he smelled slightly of alcohol. The officers explained why they were contacting him and asked whether he had been drinking. Gordon admitted he had consumed two beers in the preceding two hours.
Officer Almer asked to see Gordon's driver's license. Gordon said he had left it in the car. Almer asked Gordon to walk with him to Gordon's vehicle to get his driver's license; Gordon agreed to do so. According to the officer, as they were walking to the car, Gordon's behavior and speech were "almost hyperactive."
Clerk's Papers at 47.
When they reached the vehicle, Gordon quickly removed his jacket and put it on the passenger seat of the car. He then opened the glove box and retrieved his license, closed and locked the car door, and presented his license to Officer Almer. Almer asked why Gordon put his coat in the car, since it was less than 36 degrees Fahrenheit that night. Gordon said he felt warm and did not need a jacket.
Gordon submitted to a series of field sobriety tests, with unsatisfactory results. Officer Almer suspected Gordon had used a central nervous stimulant, which Gordon denied. The officers arrested Gordon for driving under the influence and put him in handcuffs.
Officer Almer retrieved the car keys from Gordon's right front pants pocket and unlocked the car. He searched Gordon's jacket, finding a plastic bag containing a small straw, a whitish crystalline powder, and a rock-like substance. Almer asked Gordon if he knew what the substance was. Gordon admitted it was cocaine. The substance later tested positive for the presumptive presence of cocaine.
The officers contacted a Washington State Patrol trooper with special drug training, who arrived on the scene and took custody of Gordon. The officers also contacted a towing service and impounded Gordon's vehicle. Gordon was charged by information with unlawful possession of a controlled substance. He moved to suppress the evidence obtained through the search. The court denied the motion. After a bench trial on stipulated facts, the court found Gordon guilty. This appeal followed.
DISCUSSION
A ruling on a motion to suppress will be affirmed if substantial evidence supports findings of fact and the findings support the conclusions of law. We review conclusions of law de novo.
State v. Hill, 123 Wn.2d 641, 647, 870 P.2d 313 (1994); State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001).
Id.
A warrantless search is per se unreasonable, and can be justified only if it falls within one of the "jealously and carefully drawn" exceptions to the Fourth Amendment's warrant requirement. One of these exceptions is the search of an automobile pursuant to a lawful custodial arrest, which serves to mitigate the possibility of danger to officers or destruction of evidence. Under federal law, this exception justifies search of the entire passenger compartment, including any containers within it.
Arkansas v. Sanders, 442 U.S. 753, 759, 99 S.Ct. 2586, 61 L. Ed.2d 235 (1979); State v. Houser, 95 Wn.2d 143, 149, 622 P.2d 1218 (1980).
New York v. Belton, 453 U.S. 454, 457, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).
Id. at 460-61.
Because the Washington Constitution affords greater protections against warrantless searches than does the Fourth Amendment, the permissible scope of an automobile search is therefore narrower:
During 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 for weapons or destructible evidence. However, if the officers encounter a locked container or locked glove compartment, they may not unlock and search either container without obtaining a warrant.
State v. Stroud, 106 Wn.2d 144, 152, 720 P.2d 436 (1986).
The court refused to authorize a search of locked containers within the car because the act of locking a container indicates an additional expectation of privacy, and because the fact the container is locked minimizes any danger that the suspect could destroy evidence or obtain a weapon.
Id.
The question here is whether a locked vehicle is to be treated as a locked container. The Washington Supreme Court has not addressed this issue. Decisions from the other two divisions of this court have focused on the time of seizure (as opposed to arrest), holding that police may not search a vehicle if the suspect locks the car before being seized, but that if the suspect locks the car only after being seized, the police may unlock and search the vehicle incident to arrest.
State v. Perea, 85 Wn. App. 339, 932 P.2d 1258 (1997).
State v. O'Neill, 110 Wn. App. 604, 43 P.3d 522 (2002).
In State v. Perea, a police officer observed the defendant driving a vehicle, and knew that Perea's license had been suspended. As Perea parked in the front yard of his house, the officer pulled in behind and activated his emergency lights. Perea looked at the officer, immediately stepped out of the car, locked and closed the door, and began walking toward his house. The officer ordered Perea back to his vehicle, but Perea ignored the orders. A second officer arrived, and Perea was informed he was under arrest and handcuffed. Officers took his car keys, and unlocked and searched the car, finding a loaded pistol.
85 Wn. App. 339, 932 P.2d 1258 (1997).
Id. at 340-41.
Division Two found that Perea had not been seized when he locked the car doors. The court held "that because Perea lawfully exited and locked his car, the officers had no justification for entry into Perea's car to conduct a search incident to arrest." The court distinguished its holding from cases "where the defendant locked his car after seizure (either directly or by a remote device)."
Id. at 344.
Id. at 340.
Id. at 345.
In State v. O'Neill, police made a traffic stop when O'Neill failed to signal. O'Neill pulled into a parking lot and presented his suspended driver's license to the officer. The officer arrested O'Neill for driving with a suspended license. O'Neill apparently locked the doors as he stepped out of his truck. He was handcuffed and placed in the back of a patrol car. The officer returned to the vehicle, finding it locked with the keys in the ignition. He could see drug paraphernalia in plain view from the window, and called for an impound tow. When the tow operator opened the truck door, the officer searched the truck and found cocaine. O'Neill was then arrested for possessing a controlled substance. Division Three held that this search was a valid search incident to arrest. The court distinguished Perea on its facts: unlike Perea, O'Neill was seized while he was still inside his vehicle, when he submitted to the officer's authority by pulling over, providing information, and stepping from the vehicle at the officer's request. "Although Mr. O'Neill apparently locked his vehicle before or when he exited his truck, this does not prevent a valid search of the vehicle incident to arrest."
110 Wn. App. 604, 43 P.3d 522 (2002).
O'Neill, 110 Wn. App. at 606-07.
Id. at 611.
Id.
While we express some doubts about the rationale in Perea, this case is like O'Neill, not Perea. At the time Gordon locked his car, he was not free to leave police custody. His act in locking the car at that point does not deprive the officers of the right to search the car incident to the arrest that followed a few minutes later.
A person is seized "only when, by means of physical force or a show of authority, his or her freedom of movement is restrained and a reasonable person would not have believed he or she is (1) is free to leave, given all the circumstances, or (2) free to otherwise decline an officer's request and terminate the encounter." A mere request for identification is not a seizure.
State v. O'Neill, 148 Wn.2d 564, 574, 62 P.3d 489 (2003) (internal quotations and citations omitted). This case is unrelated to the Division Three case of the same name discussed above.
State v. Rankin, 108 Wn. App. 948, 954-55, 33 P.3d 1090 (2001), review granted, 147 Wn.2d 1014 (2002).
Here, Gordon was advised at the outset that he was under investigation for driving under the influence. Officer Almer informed Gordon "what [he] had observed and requested to speak with him concerning his driving and parking," and asked if Gordon had consumed any alcohol that evening. Gordon admitted he had consumed two beers within two hours. A reasonable person in these circumstances would know he was under investigation and would not believe he was free to leave or terminate the encounter. Nor was this a simple request for identification, as Gordon contends. Almer "asked [Gordon] if he would walk with the officer to his vehicle and get his driver's license." This request, coming as it did after the officers stopped Gordon to speak to him about driving under the influence, clearly conveyed that an investigation was underway and that Gordon was not free to return to his vehicle without supervision.
Clerk's Papers at 47.
Report of Proceedings (May 28, 2002) at 7 (emphasis added).
Nor does it appear Gordon believed he was free to leave; he cursed frequently on the short walk to his car. Once the officers had Gordon's license, they continued their investigation by administering the field sobriety tests.
On these undisputed facts, a reasonable person would not have believed he was free to leave or otherwise terminate the encounter. The court's conclusion that Gordon was seized during this initial contact is therefore supported by the evidence and the law. Gordon locked his car only after he had been seized. The officers were entitled to search the vehicle after his arrest.
Affirmed.
GROSSE and BECKER, JJ., concur.